Legislative Update and Important Zoning Decisions 2011

Presentation given by Frank Jenkins

February 2011

 

New Acts from the 2010 General Assembly session on Zoning and Land Use

 

O.C.G.A. §§ 8-2-170 and 8-2-171

Relating to Factory-Built Buildings and Dwelling Units

Effective September 1, 2010, these new acts prohibit any county or city from imposing health and safety standards or conditions based on the age of a manufactured home. They authorize the establishment of health and safety standards, but none may be based upon age.

 

“A county or municipality may establish health and safety standards and conditions and an inspection program for pre-owned manufactured homes which are relocated from their current locations.”

 

“Neither a county or municipality nor any inspector thereof inspecting a pre-owned manufactured home pursuant to this Code section shall be liable for any injuries to persons resulting from any defects or conditions in such pre-owned manufactured home.”

 

King v. City of Bainbridge: Excluding Manufactured Homes from Residential Districts

A local government may exclude manufactured homes from a zoning district and at the same time permit modular homes in the same district.

 

The “Advanced Broadband Collocation Act,” O.C.G.A. § 36-66b-1 et seq.

In reviewing an application for modification or collocation of a pre-existing wireless support structure, a local government may not condition approval on additional zoning land use zoning, use, or special use permit approvals beyond the initial zoning, land use, or special use permit approval issued for the existing wireless support structure where collocation does not increase the height, width, dimensions, or weight limits of the wireless support structure.

 

Amendments to O.C.G.A. §§ 8-2-11 and 8-2-12,

Establishing Limitations on Local Governments Restricting Residential Industrialized Buildings

A local government is prohibited from excluding residential industrialized buildings from any residential

district solely because the building is an industrialized building.

 

Dawkins and Smith Homes LLC vs. Lowndes County (2010)

Zoning ordinances must be construed in favor of the property owner. But a zoning ordinance must be given reasonable construction.

 

In 2004 the state legislature amended O.C.G.A. § 8-2-20 to provide that the International Building Code (ICC) would constitute the state minimum standard code. As provided in O.C.G.A. § 8-2-25(a), the International Building Code shall have statewide application without adoption by a municipality or a county.

 

Parker vs. City of Glennville (2010)

The following code section for the City of Glennville, Georgia was found to be constitutional by the Georgia Supreme Court: It shall be unlawful for any owner or resident of any lot, area, or place located within this city to permit any weeds, grass, or deleterious, unhealthful growths to obtain a height exceeding ten inches on such property. For purposes of this section, the term "weeds" shall be deemed to mean jimpson, burdock, ragweed, thistle, cocklebur, dandelion or other unsightly growths of a like kind.

 

Administrative hearing procedures apply to the following:

- Variances

- Approval of subdivision plats

- Appeals of administrative decisions

- Conditional use permits

 

Key Case on Procedures for Administrative Hearings – Jackson vs. Spalding County (1995)

The administrative decision-making process is akin to a judicial act; the board determines the facts and applies the ordinance legal standards to them.

 

Emory University vs. Levitas (1991)

On appeal, the Superior Court only reviews the record of the hearing before the local government; no new evidence is presented.

 

ADMINISTRATIVE HEARINGS

1. Provide the required notice of the hearing as set forth in the local ordinance.

 

2. Establish written procedures for conduct of the hearing and provide a copy to all attendees.

The recommended procedures are as follows:

a. Allow the applicant to make the first presentation.

b. Provide for witness testimony.

c. Allow for cross-examination by interested parties (require interested parties to be represented by someone).

d. Allow interested parties to introduce evidence.

e. Allow cross-examination of the interested parties by applicant.

f. Require that all documents be marked as exhibits.

g. Upon conclusion of the hearing for each application, make a decision.

h. Reduce all decisions to writing.

 

3. Prepare a record or file for each application which should include the application and any documents

introduced or provided as exhibits and the transcript of the hearing. It is especially important that this be prepared in the event of an appeal.

 

4. Have a professional staff member explain the case to the Board. Allow him or her to be examined as appropriate by the applicant or interested parties. The professional staff may make a recommendation of a desired result, but it is not required.

 

5. Provide the same file to the applicant as is provided to each board member. Make sure each board member has a copy of the file prior to the hearing. Make the file available to the parties interested upon request.

 

6. Have the official zoning map and future land use plan present at the hearing for use by anyone at the hearing.

 

7. Record the public hearing, either by a tape recorder or a court reporter. If the case is appealed, prepare a transcript.