On March 18, 2008, the Georgia Court of Appeals again threw out a constitutional challenge to a local ordinance where the ordinance was not properly pled or proved and held that simple delay of a development project did equal condemnation.
Local Ordinance Must Be Pled and Proved
A local ordinance constitutes foreign law. Neither a superior court, nor an appellate court can take judicial notice of a local ordinance. A local ordinance has the status of a private act that must be pled and proved. There are three accepted methods to prove such an ordinance: (1) production of the original; (2) production of a properly certified copy; or (3) admission by the defendant of an ordinance that is either set forth verbatim in pleadings or attached as an uncertified copy to a pleading.
Simple Delay of Project is Not Condemnation
It is not a compensable taking for inverse condemnation if local approval of a development is merely delayed where the underlying facts show that builder is not prevented from marketing and developing other aspects of the project, can make other uses of property pending approval or reconfigure property to not require local approval, and property did not decrease in value as a result of the delay.
Keep reading for GZB’s summary of Prime Home Properties, LLC v. Rockdale County Board of Health, Court of Appeals of Georgia, Case Nos. A07A2185, A07A2186.
Rockdale County Board of Health (“Board”) increased the minimum lot size for homes using septic systems to 25,500 square feet. Two years after the change, real estate developer Prime Home Properties, LLC (“Prime”) purchased a 193-acre tract of land that had been previously subdivided into 20,000 square foot residential lots. Prime re-designed the subdivision to create residential lots ranging from 25,000 square feet up to three acres, and sought approval from the Rockdale County to proceed with the project. The approval process required that the plan be accepted by the Board.
The Board did not initially approve six of the 112 proposed lots because the six lots lacked the minimum 25,500 square feet of usable square footage necessary for the planned septic systems when the flood plain square footage was excluded. The Board reasoned that flood plain land should not be considered when calculating the usable square footage. Two and half years later, the Board approved those six lots for development and revised its regulations to clarify that flood plain land would be excluded from the minimum lot size calculations.
Prime sued the Board challenging the constitutionality of the Board’s minimum lot size ordinance and for inverse condemnation due to the Board’s delay in approving the six lots. The Board was awarded summary judgment on Prime’s constitutional challenge to the ordinance. However, Prime’s inverse condemnation claim was allowed to proceed to the jury. A jury found that the Board condemned the six lots by its action and awarded Prime damages for the taking. Both Prime and the Board appealed to the Georgia Court of Appeals. Prime appealed the trial court’s grant of summary judgment on its constitutional challenge to the ordinance. The Board appealed the trial court’s allowance of Prime’s inverse condemnation claim to proceed to the jury arguing that it was entitled a judgment in its favor because Prime did not prove a taking. Prime alleged that the taking was not an encroaching nuisance or a new zoning or regulatory event that resulted in the diminished utility and functionality of Prime’s land. Rather, Prime contended that the Board’s allegedly improper interpretation and enforcement of existing health regulations, regulations the Board initially interpreted to exclude land in the flood plain from the calculation of “usable” square footage, delayed its development of the property and constituted a temporary taking of the six lots.
Local Ordinance Must Be Pled and Proved
Upon receiving the appeal, the Court of Appeals ordered Prime to recast its brief to include record citations for every fact. However, Prime failed to provide any record cite to the minimum lot size ordinance he challenged. In its own review of the record, the Court of Appeals failed to find a certified copy of the ordinance or any evidence that the ordinance was pled verbatim in Prime’s complaint and admitted by the Board.
A local ordinance constitutes foreign law. Neither a superior court, nor an appellate court can take judicial notice of a local ordinance. A local ordinance has the status of a private act that must be pled and proved. There are three accepted methods to prove such an ordinance: (1) production of the original; (2) production of a properly certified copy; or (3) admission by the defendant of an ordinance that is either set forth verbatim in pleadings or attached as an uncertified copy to a pleading.
In its challenge to the minimum lot size ordinance, Prime failed to introduce certified or original copies of any record pertaining to the ordinance. Because key documents were not properly made a part of the record, the Court of Appeals held that neither it, nor the trial court could address Prime’s constitutional challenge to the ordinance. The Court of Appeals affirmed summary judgment in favor of the Board on the challenge to the ordinance.
Simple Delay of Project is Not Condemnation
The Court of Appeals noted that the record showed that, although Prime experienced a delay in developing the six lots, it was not prevented from marketing and developing the subdivision, and as late as four years after its purchase of the property it was still had 22 lots to sell. The Court of Appeals also observed that there was no evidence that Prime was prevented from making other uses of those six lots during the administrative process, or that it was prevented from reconfiguring the lots to conform to the ordinance interpretation. It was also undisputed that all required approvals had ultimately occurred for the six lots and that there was no evidence that those six lots decreased in value as a result of the delay. Instead, evidence suggested that the six lots maintained their value and Prime expected to sell them.
The Court of Appeals held that circumstances like these were insufficient as a matter of law to establish the requisite taking for purposes of a claim of damages for inverse condemnation. Prime was able to make any use of its property during the administrative processes, and the completion of the project was simply delayed and not precluded, but ultimately proceeded when approvals occurred. As such, Prime did not suffer a compensable taking. Because the evidence did not support a finding that Prime suffered a compensable taking, the Court of Appeals reversed the trial court’s judgment in favor of Prime and entered a directed verdict in favor of the Board.
Prime Home Properties, LLC v. Rockdale County Board of Health, Georgia Court of Appeals, Cases No. A07A2185 and A07A2186, decided March 18, 2008.
