S. States-Bartow Cnty., Inc. v. Riverwood Farm Homeowners Ass'n, S16A1716

CourtSupreme Court of Georgia
Writing for the CourtHUNSTEIN, Justice.
Citation797 S.E.2d 468,300 Ga. 609
Decision Date27 February 2017
Docket NumberS16A1716
Parties SOUTHERN STATES-BARTOW COUNTY, INC. et al. v. RIVERWOOD FARM HOMEOWNERS ASSOCIATION et al.

300 Ga. 609
797 S.E.2d 468

SOUTHERN STATES-BARTOW COUNTY, INC. et al.
v.
RIVERWOOD FARM HOMEOWNERS ASSOCIATION et al.

S16A1716

Supreme Court of Georgia.

Decided: February 27, 2017


David H. Flint, Mark W. Forsling, Schreeder, Wheeler & Flint, LLP, 1100 Peachtree Street, N.E., Suite 800, Atlanta, Georgia 30309-4516, Robert Claude Norman, Jr., Jones Cork & Miller, LLP, P.O. Box 6437, Macon, Georgia 31208, for Appellant.

Brandon Lowell Bowen, Sarah Conn Martin, Jenkins & Bowen, P.C., 15 South Public Square, Cartersville, Georgia 30120, Genevieve L. Frazier, Genevieve L. Frazier, P.C., P.O. Box 906, Rome, Georgia 30162-0906, Kimberley Joiner Hale, Kazmarek Mowrey Cloud Laseter LLP, Suite 3600, 1230 Peachtree Street, N.E., for Appellee.

HUNSTEIN, Justice.

300 Ga. 609

In 1991, this Court declared Bartow County's zoning ordinance to be invalid, see Tilley Properties, Inc. v. Bartow County , 261 Ga. 153 (1), 401 S.E.2d 527 (1991). Two years later, Bartow County enacted a new zoning ordinance that, among other things, included a provision addressing vested rights for nonconforming use that were acquired during the absence of a valid zoning ordinance. Now, almost 25 years later, this case requires a determination as to whether that 1993 vested-right provision is unconstitutional as applied to Appellant Southern States-Bartow County, Inc. Though the trial court concluded that the zoning provision in question suffered no constitutional infirmity, we disagree. Because the zoning provision is unconstitutional as applied to Southern States, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion.

The facts of this case date back 30 years, and, though the Court of Appeals accurately recounted the procedural and factual background of this case in a separate appeal, see Southern States-Bartow County, Inc. v Riverwood Farm Property Owners Assn., Inc. , 331 Ga.App. 878, 769 S.E.2d 823 (2015) (Southern States I ), some background is necessary to our analysis. In 1989, Southern States filed an application with the Georgia Department of Natural Resources, Environmental Protection Division ("EPD"), to develop and operate a landfill on its property in unincorporated Bartow County. In May 1990, Southern States requested from the county a certificate of zoning compliance indicating that the zoning district in which its property was located permitted the operation of a landfill. This zoning approval, which the county had provided to the previous owners of the land in the late 1980s, was a required component of the landfill application. In June 1990, Bartow County denied Southern States' request for a certificate of land use approval on the ground that the then-controlling zoning ordinance did not allow a landfill on the site; Southern States initiated litigation shortly thereafter in the Bartow County Superior Court ("the zoning litigation").

In 1991, this Court declared Bartow County's zoning ordinance invalid because the ordinance had not been enacted in compliance with Georgia's Zoning Procedures Law. See Tilley Properties , 261 Ga. at 154, 401 S.E.2d 527. In September 1993, Bartow County enacted a new zoning

300 Ga. 610

ordinance, which included the following provision:

A lawful use of or vested right to use any building, structure, or land existing at the time of the adoption of this ordinance or the adoption of any amendment thereto
797 S.E.2d 470
may be continued subject to the restrictions contained in this ordinance even though such use does not conform with the regulations of this ordinance except that:

6.1.4 Any intended non-conforming use for which a vested right was acquired prior to the adoption of this ordinance or the adoption of an amendment thereto shall be prohibited unless such is actually commenced within one year of the adoption of this ordinance or the adoption of an amendment thereto regardless of the intent or expectation to commence or abandon such non-conforming use.1

(Hereinafter "Section 6.1.4"). Meanwhile, the zoning litigation continued and, in September 1994, the Bartow County Superior Court ruled in favor of Southern States, concluding that, in the absence of a valid zoning ordinance in existence at the time of its application to the EPD, Southern States acquired a vested right to obtain a certificate of the right to use its real property without county use restrictions. The September 1994 order, which was not appealed, concluded that Southern States has a vested right "in all the necessary certificates to be issued [by Bartow County] to get approval from the necessary agency to operate a landfill." Shortly after the September 1994 order, Bartow County issued a certificate of zoning compliance, and, over the course of the following 20 years, the county zoning administrator continued to issue certification letters confirming Southern States' vested right to use the property as a landfill. Eventually, in 2013, the EPD issued a solid-waste handling permit to Southern States, allowing the land to be developed into a landfill.

In May 2013, Appellee Riverwood Farm Property Owners Association, Inc., a group of private property owners in unincorporated Bartow County, filed a complaint for declaratory judgment and injunctive...

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8 practice notes
  • Georgiacarry.org., Inc. v. Atlanta Botanical Garden, Inc., S18G1149
    • United States
    • Supreme Court of Georgia
    • October 7, 2019
    ...transactions or considerations already past." 834 S.E.2d 39 Southern States-Bartow County, Inc. v. Riverwood Farm Homeowners Assn. , 300 Ga. 609, 612, 797 S.E.2d 468 (2017) (citation and punctuation omitted). "[T]his principle does not apply with respect to public rights, which ar......
  • GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., S18G1149
    • United States
    • Supreme Court of Georgia
    • October 7, 2019
    ...transactions or considerations already past." 834 S.E.2d 39 Southern States-Bartow County, Inc. v. Riverwood Farm Homeowners Assn. , 300 Ga. 609, 612, 797 S.E.2d 468 (2017) (citation and punctuation omitted). "[T]his principle does not apply with respect to public rights, which ar......
  • Brantley Cnty. Dev. Partners, LLC v. Brantley Cnty., CV 5:19-109
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • May 14, 2021
    ...laws which injuriously affect the ‘vested rights’ of citizens." S. States-Bartow Cnty., Inc. v. Riverwood Farm Homeowners Ass'n, 300 Ga. 609, 797 S.E.2d 468, 471 (2017).Plaintiff insists that three particular regulatory actions taken by Defendants impermissibly deprive Plaintiff of its......
  • New Cingular Wireless PCS, LLC v. Ga. Dep't of Revenue, A16A2003
    • United States
    • United States Court of Appeals (Georgia)
    • February 6, 2019
    ...tax paid").12 See 2009 Ga. Laws, p. 817-20, 824 §§ 3, 4, 9.13 S. States-Bartow Cnty., Inc. v. Riverwood Farm Homeowners Assoc. , 300 Ga. 609, 611, 797 S.E.2d 468 (2017) (punctuation omitted); accord Fowler Props., Inc. v. Dowland , 282 Ga. 76, 77 (1), 646 S.E.2d 197 (2007) ; DeKalb Cnt......
  • Request a trial to view additional results
8 cases
  • Georgiacarry.org., Inc. v. Atlanta Botanical Garden, Inc., S18G1149
    • United States
    • Supreme Court of Georgia
    • October 7, 2019
    ...to transactions or considerations already past." 834 S.E.2d 39 Southern States-Bartow County, Inc. v. Riverwood Farm Homeowners Assn. , 300 Ga. 609, 612, 797 S.E.2d 468 (2017) (citation and punctuation omitted). "[T]his principle does not apply with respect to public rights, which are share......
  • GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., S18G1149
    • United States
    • Supreme Court of Georgia
    • October 7, 2019
    ...to transactions or considerations already past." 834 S.E.2d 39 Southern States-Bartow County, Inc. v. Riverwood Farm Homeowners Assn. , 300 Ga. 609, 612, 797 S.E.2d 468 (2017) (citation and punctuation omitted). "[T]his principle does not apply with respect to public rights, which are share......
  • Brantley Cnty. Dev. Partners, LLC v. Brantley Cnty., CV 5:19-109
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • May 14, 2021
    ...laws which injuriously affect the ‘vested rights’ of citizens." S. States-Bartow Cnty., Inc. v. Riverwood Farm Homeowners Ass'n, 300 Ga. 609, 797 S.E.2d 468, 471 (2017).Plaintiff insists that three particular regulatory actions taken by Defendants impermissibly deprive Plaintiff of its vest......
  • New Cingular Wireless PCS, LLC v. Ga. Dep't of Revenue, A16A2003
    • United States
    • United States Court of Appeals (Georgia)
    • February 6, 2019
    ...of sales tax paid").12 See 2009 Ga. Laws, p. 817-20, 824 §§ 3, 4, 9.13 S. States-Bartow Cnty., Inc. v. Riverwood Farm Homeowners Assoc. , 300 Ga. 609, 611, 797 S.E.2d 468 (2017) (punctuation omitted); accord Fowler Props., Inc. v. Dowland , 282 Ga. 76, 77 (1), 646 S.E.2d 197 (2007) ; DeKalb......
  • Request a trial to view additional results

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