Archive for the ‘Recent Court Decisions’ Category

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.

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Coal Plant Proposal At Issue In Fulton County Superior Court Decision Concluding CO2 Regulated by Clean Air Act Abandoned

The proposal for a new coal power plant in Early County Coal appears to be dead.  Dynegy Inc., the Texas-based energy company that proposed what would’ve been Georgia’s first new coal power plant in 20 years, announced today that it has pulled out of the project. 

From a company press release:

Dynegy Inc. (NYSE:DYN) today announced that it has entered into an agreement with LS Power Associates, L.P. to dissolve the two companies’ development joint venture. Under the terms of the dissolution, Dynegy will acquire exclusive rights, ownership and developmental control of all repowering or expansion opportunities related to its existing portfolio of operating assets. LS Power will acquire full ownership and developmental rights associated with various “greenfield” projects under consideration in Arkansas, Georgia, Iowa, Michigan and Nevada, as well as other power generation and transmission development projects not related to Dynegy’s existing operating portfolio of assets.

The reason?

The development landscape has changed significantly since we agreed to enter into the development joint venture with LS Power in the fall of 2006,” said Bruce A. Williamson, Chairman, President and Chief Executive Officer of Dynegy Inc. “Today, the development of new generation is increasingly marked by barriers to entry including external credit and regulatory factors that make development much more uncertain. In light of these market circumstances, Dynegy has elected to focus development activities and investments around our own portfolio where we control the option to develop and can manage the costs being incurred more closely.

Litigation over the proposed coal plant generated national headlines and new law when a Fulton County Superior Court Judge concluded Carbon Dioxide was regulated by the Clean Air Act.  That decision remains on appeal before the Georgia Court of Appeals.  It is unclear how the abandonment of the coal plant proposal will impact the pending litigation.

GZB Publisher Wins at Georgia Supreme Court

GZB creator and publisher Kyle Williams recently obtained a reversal from the Georgia Supreme Court of a trial court’s dismissal of a rezoning challenge for failure to state a claim and for failure to join indispensable parties. 

In Stendahl et al. v. Cobb County et al., the Georgia Supreme Court reversed the dismissal by the Cobb County Superior Court of a neighbors’ challenge to a rezoning decision.  The Cobb County Superior Court had held that the neighbors had not stated a claim upon which relief could be granted based solely upon the complaint.  In reversing the dismissal, the Georgia Supreme Court held that the trial court misapplied the standard of review of a rezoning decision. 

In what appears to be a new definition, the Georgia Supreme Court also reversed the trial court’s dismissal for failure to join indispensable parties and explicitedly defined who were indispensable parties in a neighbor’s challenge to a rezoning decision. 

When the owner of the property for which re-zoning is sought is not the applicant for re-zoning but has entered into a contract for the sale of the property with the re-zoning applicant, which contract is contingent upon the applicant obtaining re-zoning, the owner does not fit within the definition of  “indispensable party” because the case could be decided on its merits without prejudicing the rights of the owners since the re-zoning applicant is a party and presents a thorough case on behalf of itself and, ultimately the owner. 

Stendahl et al. v. Cobb County et al., Case No. S08A1395, decided on October 27, 2008.

U.S. District Court, Northern Division of Georgia Concludes Outdoor Advertising Company Did Not Have Standing to Challenge Lawrenceville Sign Ordinance

The United States District Court, Northern Division of Georgia granted a motion to dismiss in favor of the City of Lawrenceville, Georgia on Covenant Media of Georgia, LLC’s constitutional challenge to the city’s outdoor sign ordinance.

The Court concluded that Covenant Media could not establish redressibility because even if it won its constitutional challenge to the sign ordinance Covenant Media still could not build its proposed signs. 

The Court also concluded that Covenant Media’s alleged injury – the fact that it could not build its proposed signs – was not a result of any of the alleged unconstitutional actions of the City, but instead due to application of various height, size, location, and certification provisions of the sign ordinance that was not being challenged. 

Because Covenant Media could not establish redressibility and a casual relationship between its injury and the challenged actions of the City, the Court held Covenant Media did not possess standing to file the lawsuit and dismissed it.

Keep ready for GZB’s summary of Covenant Media of Georgia, LLC v. City of Lawrenceville, Georgia, — F. Supp. 2d. —, 2008 WL 4462422, Civil Action No. 1:07-CV-2522-JEC, decided September 18, 2008.

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11th Circuit Implies Five Minute Time Limitation Inadequate Due Process

The 11th Circuit Court of U.S. Appeals recently reversed a grant of a motion to dismiss and remanded Kupke v. Orange County, Florida, Case No. 08-10814 finding that the complaint adequately alleged a deprivation of property resulting from state action and that further proceedings were necessary to determine whether post-deprivation due process was meaningful and adequate to allow the property owners an opportunity to recover the property taken without due process due to a 5 minute limitation to present their case at the hearing pre-deprivation.

Keep reading for GZB’s summary of Kupke v. Orange County, Florida, Case No. 08-10814, decided September 8, 2008.

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11th Circuit Affirms Bikini Bar Ordinance

In what reads as a harsh criticism of the limited appellate challenge mounted, the 11th Circuit Court of U.S. Court of Appeals affirmed an ordinance of Hillsborough County, Florida regulating bikini bars as having the purpose and effect of suppressing secondary effects.

The only evidence asserted by the challenger that the local ordinance did not have the purpose or effect of suppressing secondary effects was an expert witness’s assertion that calls for police help from the challenger’s adult business compared favorably to non-adult business.  The 11th Circuit rejected and discounted the value of such police calls as indicative of the kind of secondary effects which were the focus of the local ordinance.

5634 East Hillsborough Avenue, Inc. v. Hillsborough County, Florida, U.S. District Court of Appeals, 11th Circuit, Case No. 07-14955, decided September 18, 2008.

Georgia Supreme Court Affirms Counties’ Right to Object to Annexation of Unincorporated Areas

The Georgia Supreme Court has again affirmed that a county has standing to sue one of its cities to prevent annexation of unincorporated properties within the county.  However, the Supreme Court held that where the annexing city and property owners of annexed property had no present intention to rezone the annexed properties a county can not present sufficient evidence of a threat of harm to obtain interloctutory injunction relief.

Keep read for GZB’s summary of Cherokee County v. City of Holly Springs, Georgia Supreme Court, Case No. S08A0759, decided on September 22, 2008.

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