Archive for May, 2008

Georgia Court of Appeals Distinguishes Dock Permit from a Dock

On May 22, 2008, the Court of Appeals of Georgia found that a permit had been issued by the Army Corps of Engineers to allow the construction of a private dock over state-owned tidewater beds and marsh lands does not mean that any damage will occur upon the construction of that dock.  The Court upheld the dismissal of an appeal from the issuance of a dock permit because the challenger did not possess standing because the dock had not yet been built. 

Keep reading for GZB’s summary of Hitch v. Vasarhelyi, Court of Appeals of Georgia, Case No. A08A0065, decided May 22, 2008. 

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Homeowner Allowed to Operate Haunted House

On May 19, 2008, the Georgia Supreme Court dismissed an appeal from a denial of an injunction to close down a haunted house operating in an area zoned residential as the appeal was “moot” because the haunted house had closed.


Two Justices (Melton and Carley) dissented noting that Halloween comes around every year and that res judicata or collateral estoppel would allow the operation of the haunted house every year in perpetuity without the City being able to challenge it.


Keep reading for GZB’s summary of City of Comer v. Seymour, Supreme Court of Georgia, Case No. S08A0557, decided May 19, 2008.

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Aesthetic-Based Cell Tower Zoning Ordinance Upheld

On May 13, 2008, the United States District Court, Northern District of Georgia held that the Telecommunications Act of 1996 (TCA), 47 U.S.C. § 151 et seq., does not preempt state or local zoning powers so long as local governments (1) do not unreasonably discriminate among providers; (2) prohibit personal wireless services; or, (3) limit placement of wireless facilities based upon “environmental effects of radio frequency emissions.” 


The Court held that a local zoning ordinance that established aesthetic-based guidelines for placement of wireless, cellular, television and radio telecommunications towers and antennas was a reasonable and proper exercise of local governments exercise of its zoning and police powers and was not preempted by TCA.


Keep reading for GZB’s summary of Southeast Towers, LLC v. Pickens County, United States District Court, Northern District, Gainesville Division, Civil Action File No. 2:06-CV-0172-RWS, decided May 13, 2008.

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Just Delay . . . Not Condemnation

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.   

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