Meeks v. City of Buford

CourtSupreme Court of Georgia
Citation571 S.E.2d 369,275 Ga. 585
Decision Date15 October 2002
Docket NumberNo. S02A0698.,S02A0698.
PartiesMEEKS et al. v. CITY OF BUFORD et al.

571 S.E.2d 369
275 Ga. 585

MEEKS et al.

No. S02A0698.

Supreme Court of Georgia.

October 15, 2002.

571 S.E.2d 370
Webb, Tanner & Powell, Anthony O.L. Powell, Lawrenceville, for appellants

Freeman Mathis & Gary, Dana K. Maine, Chandler & Britt, Gregory D. Jay, Buford, for appellees.

HUNSTEIN, Justice.

Appellants, trustees of a medical pension plan, appeal from the trial court's order denying and dismissing their petition for declaratory and mandamus relief in a case in which appellants assert they have a vested property right to utilize investment property in accordance with a zoning variance granted in 1985. Because appellants failed to establish that they acquired a vested property right, we affirm.

In July 1985, the City of Buford enacted a zoning ordinance wherein the zoning classification for the 30 acres of undeveloped land [275 Ga. 586] at issue here was changed from RM-13 (residential multi-family with a density of 13 units per acre) to RM-8 (residential multi-family with a density of 8 units per acre). At the time, the property was under contract for sale with a prior potential purchaser. On November 18, 1985 the City's Zoning Board of Appeals approved a variance regarding the property which allowed a density of 11-12 units per acre without time limitations or conditions precedent. The City thereafter forwarded a letter to the Gwinnett County Planning and Zoning Department regarding the variance and requesting a building permit be granted to the then-potential purchaser of the property. However, the potential purchaser never bought the property and the building permit never issued. On December 30, 1986 appellants purchased the property contingent upon unconditional zoning for multi-family use with 13 apartment units allowable per acre, acknowledgment by the City that it had no future plans to rezone the property, and guaranteed issuance of development and building permits for the property. Appellants relied on the existing variance and approved development plan as satisfaction of these contingencies. Appellants expended approximately 500,000 in purchasing the property and have paid property taxes and interest on the promissory notes since 1986.

In 1991, the City adopted a new comprehensive zoning ordinance wherein the square footage requirements for an RM-8 zoning changed. In November of 1999, appellants entered into a conditional sales contract with a potential purchaser. The potential purchaser's application for a variance to change the zoning density from 8 to 10 multi-family housing units per acre was denied by the City because the 1991 zoning ordinance provided for an RM-8 density, the 1985 variance was no longer applicable, and the higher density was otherwise inappropriate for the property.1 In August 2000, appellants sought a declaratory judgment and writ of mandamus from the Gwinnett County Superior Court seeking to enforce the 1985 variance and to require the City to issue a certificate

571 S.E.2d 371
of zoning compliance confirming the development terms allowed by the variance. The trial court denied appellants' request for relief

1. The dispositive issue in this case is whether appellants obtained a vested right to use the undeveloped investment property in the manner permitted by the 1985 variance. Appellants argue that they obtained a vested right in the land use classification granted by the 1985 variance and that under Pinnell v. Kight, 245 Ga.App. 299(2), 537 S.E.2d 170 (2000), the mere passage of time cannot invalidate the vested right to utilize the property in the manner permitted by [275 Ga. 587] the variance. The majority rule for vesting a landowner with a right to use the property consistent with a pre-existing land use notwithstanding subsequent zoning and land use changes is set forth in Barker v. County of Forsyth, 248 Ga. 73(2), 281 S.E.2d 549 (1981). The rule requires that in order for a landowner to acquire a vested right to initiate a use, despite a restriction contained in an ordinance, the landowner must in good faith have "`made a substantial change of position in relation to the land, made substantial expenditures, or [have] incurred substantial obligations.' [Cits.]" Id. at 76, 281 S.E.2d 549. Corey Outdoor Adv. v. Bd. of Zoning &c., 254 Ga. 221, 225(4), 327 S.E.2d 178 (1985); see 4 Rathkopf, The Law of Zoning and Planning, § 70:20 (2001). While we have acknowledged the existence of "constitutionally protected vested zoning rights" of a property owner under certain conditions, so as to preclude retroactive application of a zoning ordinance, id., the mere reliance on a particular variance without a showing of a substantial change in position by expenditures based upon an existing zoning ordinance does not vest rights in the landowner. This view is consistent with decisions of this Court regarding the vesting of property rights in property as zoned. See Cohn Communities v. Clayton County, 257 Ga. 357(1), 359 S.E.2d 887 (1987); WMM Properties v. Cobb County, 255 Ga. 436(1), 339 S.E.2d 252 (1986); and Barker, supra, 248 Ga. at 75(2), 281 S.E.2d 549. Although these cases do not specifically address the rights of a holder of a variance who has not yet exercised it, we see no reason why the holder of an unexercised variance should be in a better or different position with regard to the vesting of property rights than one whose rights emanate from a building or special use permit or approved development plan. See id.; Schulman v. Fulton County, 249 Ga. 852, 853, 295 S.E.2d 102 (1982); Barker, supra; see...

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6 cases
  • Brown v. Baskin
    • United States
    • Supreme Court of Georgia
    • 15 Marzo 2010
    ...the issue of his trial lawyer's effectiveness was a decision which "only an incompetent attorney would have adopted." Shorter v. Waters, 275 Ga. at 585 571 S.E.2d 373. See also Battles v. Chapman, supra at 705(1)(a) 506 S.E.2d 838. Walker v. Williams, 282 Ga. 409, 409, 651 S.E.2d 59 (2007).......
  • Crawford v. Thompson
    • United States
    • Supreme Court of Georgia
    • 27 Septiembre 2004
    ...decision was a reasonable tactical move which any competent attorney in the same situation would have made.' [Cit.]" Shorter, supra, 275 Ga. at 585, 571 S.E.2d 373. As to the prejudice component, a defendant must show "`a reasonable probability that the outcome of the appeal would have been......
  • Walker v. Williams, S07A0880.
    • United States
    • Supreme Court of Georgia
    • 24 Septiembre 2007
    ...the issue of his trial lawyer's effectiveness was a decision which "only an incompetent attorney would have adopted." Shorter v. Waters, 275 Ga. at 585, 571 S.E.2d 373. See also Battles v. Chapman, supra at 705(1)(a), 506 S.E.2d 838. State v. Smith, 276 Ga. 14, 16, 573 S.E.2d 64 (2002). [28......
  • Phillips v. Williams, S03A0093.
    • United States
    • Supreme Court of Georgia
    • 9 Junio 2003
    ...572 (1992). 10. See Harper v. Dooley, 221 Ga.App. 715, 716, 472 S.E.2d 461 (1996). 11. See Smith, 276 Ga. at 16, 573 S.E.2d 64; Shorter, 275 Ga. at 585, 571 S.E.2d 12. See Nelson, 275 Ga. at 794, 573 S.E.2d 42. --------...
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1 books & journal articles
  • Local Government Law - R. Perry Sentell, Jr.
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 55-1, September 2003
    • Invalid date
    ...urban growth-such as increased traffic-is insufficient to confer standing." Id. at 368-69, 568 S.E.2d at 587-88 (citations omitted). 166. 275 Ga. 585, 571 S.E.2d 369 (2002). 167. The city had granted the variance in 1985. Id. at 585, 571 S.E.2d at 370. 168. Id. at 586, 571 S.E.2d at 370. Al......

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