Georgia High Court finds property rights debate overturned by Court of Appeals

During its first hearing in 2022, the Georgia Supreme Court heard arguments about whether a landowner had obtained a title right to develop a proposed Forsyth County subdivision with lot sizes later closed by a county zoning moratorium.

The complainants argued that a conversation in 2016 between a district planning director and a land developer confirmed that the code written at the time would allow for the creation of 9,000-square-foot lots as planned by the developer, but that the government official made no assurances about future zoning changes.

The applicant disagreed, supported by a Georgia Court of Appeals ruling in his favour, arguing that a vested interest had been established.

On Tuesday, the Georgia Supreme Court challenged attorneys who made both arguments.

Changed zone code

Prior to property owner Red Bull Holdings II LLC acquiring land in Cumming for a proposed 42-lot residential subdivision, Director E. Howard Carson Jr. met with Forsyth County Department of Planning & Community Development Director Tom Brown in March 2016 to secure 9,000-square foot minimum lot sizes would be allowed. Brown confirmed that the zoning code at the time would allow for that lot size, according to court documents.

But when Carson applied for a land disturbance permit six months later to develop the property with 9,000-square-foot lots, officials denied the application.

The Forsyth County Board of Commissioners imposed a moratorium on accepting applications for land disturbance permits in August 2016 and later amended the zoning ordinance to prohibit development on 9,000-square-foot lots. After “relying on the likelihood that planning permission would be issued based on the then-current zoning status of the property and the assurances given by zoning officials,” Carson argued that despite the moratorium.

Chief Justice of the Georgia Court of Appeals Chris J. McFadden

The Forsyth County Board of Commissioners, the Forsyth County Zoning Board of Appeals, and the Superior Court of Forsyth County dismissed Carson’s argument, but the Georgia Court of Appeals agreed and issued a reverse.

“The evidence presented to him [Zoning Board of Appeals] has shown that Carson acquired rights so acquired,” reads the interlocutory appeals decision, authored by Chief Judge Christopher J. McFadden. “As of September 2016, Carson had already obtained title to develop the property with 9,000 square foot lots. Consequently, although the zone code has subsequently changed, Carson is eligible to obtain the necessary building permits [develop the property in accordance with his vested rights] if [he] fulfill[s] with all the requirements for the building permits.’”

“No promise, no incentive”

Representing Brown and the Forsyth County Zoning Board of Appeals, Ken E. Jarrad of Jarrad & Davis in Cumming appealed the Georgia Court of Appeals decision in the virtual High Court on Tuesday.

Brown argued that developers could use the inter-appeal decision to exploit interactions with local zone personnel to protect themselves and their land from future zone code changes that would affect the density of their proposed development.

“This is a situation where there was no assurance, no promise, no inducement. That developer was not reached,” argued Jarrad. “This person comes in, makes an appointment, tells my client something they already knew that anyone can figure out in code. It is very clearly stated in the code, and then [the appellee] says: “Voilà! I’ve changed my position now, and you can’t do zoning to me.’”

Jarrad argued that Brown made no representations regarding future zoning changes that might affect the property, nor did he guarantee that Carson would be able to build a subdivision with the desired 9,000 square foot lots.

But the judges questioned Jarrad why a just estoppel, where a litigant may be prevented from making an argument or a legal defense, didn’t apply. To which Jarrad replied that the doctrine could not be used “to frustrate government territorial divisions.”

Jarrad argued, “A government employee does not have any private promise binding on the duties of the office.” Therefore, no conversation between Brown and Carson would override county policy since there are written zone codes available to the public.

“Contradicts logic”

Representing Carson on the appeal, Kyle L. Wise of Wilson Brock & Irby in Atlanta opened his arguments by addressing the appellant’s allegation that the meeting between Carson and Brown was fabricated.

“It defies logic and common sense,” Wise said. “Why would Carson have to make anything? The change came months later, after receiving approval from Brown for its intended use, according to the site plan.”

When asked by the judges what specific assurances Carson was given and whether Brown had authority to make such promises, Wise argued that the investment made by his client established his vested interest.

“Before making this deal and executing it hard, risking his capital and spending millions of dollars, Carson requested this meeting with Brown for confirmation of what … development claims were permitted on this property,” Wise argued. “Carson knew the development designation for the lot… but there’s a big difference between knowing the development designation for something and knowing what can actually be built on the property. This is particularly important for the evidence in this case.”

Wise argued that as director of Forsyth County’s planning division, Brown had ultimate authority to review and approve permits issued under zoning ordinances that were challenged by the judges.

“Brown gave you no opportunity to do anything other than confirm the rule of law in place, right?” Judge Charles Bethel posed.

Judge Nels SD Peterson then asked if Brown promised the law would never change.

“No, he didn’t,” Wise replied. “Ownership must be pursued [Carson’s] Intended use as shown in the site plan.”