Georgia Court of Appeals Sets Aside Rezoning Decision Made Without Site Plan Where Local Zoning Ordinance Required Site Plan And Consideration of Specific Criteria

The Georgia Court of Appeals reversed a Banks County rezoning decision as violative of its zoning ordinance where its county commission approved a rezoning application that did not include a site plan.  The Court of Appeals held that the local zoning ordinance required county officials to review rezoning applications based on specific criteria, such as the land use, development suitability, and the impact of the rezoning on nearby property. The Court of Appeals noted that without a site plan, officials had little information about the rezoning applicant’s actual proposed use and how that use would affect the property, hindering their ability to analyze the required criteria.

The Court of Appeals held that the county officials neglected to obtain the required site plan from the rezoning applicant, thus ignoring mandatory zoning requirements and depriving themselves of key information relating to the proposed development.  The Court of Appeals reversed the trial court and remanded the rezoning decision to the county commission for further consideration in compliance with its order.

Keep reading for GZB’s summary of Harden v. Banks County, 294 Ga. App. 327, 670 S.E.2d 133, decided November 8, 2008.

Bobby Caudell sought to rezone 126 acres of “agricultural-rural residential” to single-family residential to develop a subdivision.  Caudell’s rezoning application included an aerial survey of the property and the following statement of intent

I intend to have a subdivision with approximately 98 site-built homes with prices averaging from $160,000-$180,000.  Projected completion in 3-5 years.  We will have covenants on the subdivision, that will include paved driveways, attached garages, and sodded front yards.  Streets will be curb and gutter as required by the county.

Under the Banks County zoning ordinance, a rezoning applicant is required to submit a site plan containing specific information about the property boundaries, existing and proposed streets, water courses, and the proposed development’s “physical characteristics.”  Caudell submitted an aerial property survey with the rezoning application with the brief narrative description of his proposed subdivision.  Caudell did not submit a site plan or plat depicting the development, its streets, buildings, or other “physical characteristics,” as required by the zoning ordinance.

Even though the zoning officer testified at trial that the County must strictly comply with policies and procedures governing rezoning applications, he nevertheless testified that he found that the aerial survey satisfied the “site plan” requirement and recommended approval.  The County Board of Commissioners expressed some concern about the site plan, but approved the rezoning without obtaining the information demanded by the ordinance.

The County Board of Commissioners approved Caudell’s request to rezone 126 acres of rural property for residential subdivision development.  Willis and Bettie Harden owned adjacent property and objected to the rezoning.  The trial court affirmed the rezoning decision and the  Georgia Court of Appeals granted a discretionary appeal.

On appeal, the Hardens argued that that by failing to obtain a site plan, the County deprived them of fair notice regarding Caudell’s application.   The Court of Appeals did not address the Hardens’ contention, but found that the site plan was mandatory under the zoning ordinance.

Pretermitting whether a site plan provides notice to neighbors or aids the Board, its inclusion in Caudell’s application was mandatory.  Moreover, the zoning ordinance required county officials to review Caudell’s application based on specific criteria, such as the land use, development suitability, and the impact of the rezoning on nearby property.  Without a site plan, officials had little information about Caudell’s actual proposed use and how that use would affect the property, hindering their ability to analyze the required criteria.

The Court of Appeals reversed the trial court and set aside the rezoning because it found that the County neglected to obtain the required site plan from Caudell ignoring mandatory zoning requirements and depriving themselves of key information relating to the proposed subdivision development.

Harden v. Banks County, 294 Ga. App. 327, 670 S.E.2d 133, decided November 8, 2008.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: