Tom Brown v. E. Howard Carson, Jr. ( 2021 )

THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
March 1, 2021
In the Court of Appeals of Georgia
A20A2016, A20A2017. CARSON et al. v. BROWN et al.; and vice M c F - 0 7 2 ,
versa. McF-073
A21A0139. CARSON et al. v. BROWN et al. McF-014
MCFADDEN, Chief Judge.
These related cases stem from the efforts of a landowner, Red Bull Holdings
II, LLC, and its principal, E. Howard Carson, Jr. (collectively, “Carson”), to develop
real property at a particular density. Carson bought the Forsyth County property in
March 2016, after a meeting at which the Forsyth County planning director, Tom
Brown, confirmed that the property was zoned for development of 9000-square-foot
residential lots. But in August 2016, the Forsyth County Board of Commissioners
imposed a moratorium1 on the acceptance of applications for land disturbance permits
1
The parties dispute whether there was a single moratorium or a series of
moratoria. We do not reach that issue and so use “moratorium” only for convenience.
for lots of that size. In September 2016, Carson unsuccessfully sought a land
disturbance permit to develop the property with 9000-square-foot lots. The next
month, the Board of Commissioners amended the County’s United Development
Code (the “zoning code”) to prohibit development of lots of that size.
Case No. A21A0139 concerns Carson’s petition for an administrative
determination by the County’s planning department that he had vested rights to
develop the property with 9000-square-foot lots. In that case, Carson argued that he
had obtained vested rights by purchasing the property and making expenditures in
reliance upon the probability that a building permit would issue, based upon the
property’s then-current zoning status and the assurances of zoning officials. Carson’s
claim of vested rights was denied, the County’s zoning board of appeals (ZBA)
affirmed that denial, and on a writ of certiorari the Superior Court of Forsyth County
also affirmed. We reverse, because the evidence presented to the ZBA showed that
Carson acquired vested rights in this manner.
Cases No. A20A2016 and A20A2017 concern a separate action in which
Carson sought mandamus and injunctive relief based on his claim that he obtained
vested rights to develop the property with 9000-square-foot lots in September 2016,
when he applied for a land disturbance permit. Because we find in Case No.
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A21A0139 that Carson already had acquired vested rights by that point, Cases No.
A20A2016 and A20A2017 are moot, thereby depriving us of appellate jurisdiction
over them. So we dismiss the appeal and cross-appeal in Cases No. A20A2016 and
A20A2017.
1. The administrative vested rights determination (Case No. A21A0139).
Carson appeals the superior court’s ruling affirming, on certiorari, the decision
of the ZBA affirming an administrative determination that he did not have vested
rights to develop the property with 9000-square-foot lots. The superior court’s review
in this case was
limited to alleged errors of law, as set forth in the petition [for writ of
certiorari], and the determination of whether the decision was supported
by any evidence. On appeal, this [c]ourt’s duty is not to review whether
the record supports the superior court’s decision; instead, we must
determine whether the record supports the determination of the [ZBA].
Longo v. City of Dunwoody, 351 Ga. App. 735, 739 (832 SE2d 884) (2019) (citations
omitted). In doing so, we apply the any-evidence standard of review. Emory Univ. v.
Levitas, 260 Ga. 894, 896-897 (1) (401 SE2d 691) (1991); City of Atlanta Govt. v.
Smith, 228 Ga. App. 864, 865 (1) (493 SE2d 51) (1997). “If, under the appropriate
standard of review, the evidence does not support the [ZBA’s] decision, that decision
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would constitute an abuse of discretion and be subject to reversal.” Emory Univ.,
supra at 896 (1) n. 1. In other words, the evidence, viewed in the light most favorable
to the ZBA’s decision, nevertheless may establish as a matter of law that Carson
acquired vested rights. See generally Beugnot v. Coweta County, 231 Ga. App. 715,
718-721 (1) (a) (500 SE2d 28) (1998) (reversing superior court’s summary judgment
rulings on ground that evidence established mobile home park owner had vested
rights, as a matter of law, to develop the park in a particular manner).
(a) Facts and procedural history.
In October 2016, Carson filed with the County’s planning department an
application for a determination of his vested rights in the property, specifically
regarding his entitlement to develop the property with 9000-square-foot lots. In a
January 6, 2017 letter, the county attorney issued a decision that Carson did not have
such vested rights. Tom Brown, the director of the County’s planning department,
concurred in that decision. Carson appealed the decision to the ZBA, which held a
public hearing on the issue on March 30, 2017.
At the hearing, the ZBA decided the administrative appeal in an oral ruling, but
it did not make any express written findings of fact or conclusions of law.
Consequently, we may consider the entire evidentiary record on appeal. Cf. Hughes
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v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015) (scope of appellate review is
limited when trial court has made express findings of disputed facts). Moreover, the
ZBA heard no live testimony, but made its decision based on affidavit testimony and
supporting documents. And most of that affidavit testimony is undisputed. Viewed
in the light most favorable to the ZBA’s decision, see DeKalb County v. Bull, 295 Ga.
App. 551, 552 (1) (672 SE2d 500) (2009), the affidavits and supporting documents
establish the following facts.
On March 14, 2016, before buying the property, Carson met with planning
director Tom Brown. At that meeting, the two men discussed Carson’s plan to
develop the property as a 42-lot residential subdivision with 9000-square-foot
minimum lot sizes. They also reviewed a document depicting the proposed
subdivision layout. Carson asked Brown if he would confirm that the zoning code
allowed 9000-square-foot lots on the property, and Brown responded by confirming
that the zoning code, as it was then written, would allow that lot size. Brown,
however, “made no representations as to future [zoning code] changes that might
impact the indicated property nor did [he] guarantee that Carson would be able to
build out this subdivision at 9,000 square foot lots.”
5
After his meeting with Brown, Carson bought the property at a price based on
his plan to develop 9000-square-foot lots. In April and May 2016, he took steps to
obtain the necessary sewer easements for the property, Carson discussed his plan to
develop the property and his use of a specific process to obtain the easements with
the director of the County’s water and sewer department and obtained approval from
the director of preliminary sewer plans for the development, so that (in the director’s
words) Carson could “mov[e] forward in negotiating the easements or requesting use
of the Developer assisted [utility easement] condemnation policy.” Carson then
obtained appraisals of the sewer easements and made offers to adjoining landowners
to purchase them. Carson informed those adjoining landowners, in communications
copied to the water and sewer director, that he intended to develop 42 lots. He also
discussed the sewer easements with the water and sewer department’s right-of-way
coordinator. On May 27, 2016, that person informed Carson that the director had
“approved the project” and outlined the next steps Carson needed to take to obtain the
easements, and on June 6, 2016, she informed Carson that they could “move towards
condemnation” of the easements if the adjoining landowners did not agree to
Carson’s offer to purchase them.
6
Carson averred that, based upon his interactions and communications with
Brown and with persons in the County’s water and sewer department, he “spent in
excess of $83,000.00 obtaining the requisite plans, studies, appraisals, and the like,
pursuing development of the [p]roperty with a residential subdivision consisting of
up to 42 lots[.]”
After the ZBA affirmed the planning department’s decision denying Carson’s
claim of vested rights, Carson petitioned the Superior Court of Forsyth County for a
writ of certiorari, naming the County and its planning director, Tom Brown
(collectively, “the County”), as defendants-in-certiorari. Carson’s certiorari petition
sought a holding that Carson had the right to a determination that he had vested rights
to develop the property with 9000-square-foot lots. The superior court affirmed the
ZBA decision, and we granted Carson’s application for discretionary appellate
review.
On appeal, Carson argues that the evidence showed he had acquired vested
rights to develop the property consistent with the zoning regulations in place when
he bought it and undertook to obtain sewer easements for the property. We agree that
the evidence did not support the ZBA’s decision, so we reverse on that ground and
do not reach Carson’s other arguments for reversal.
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(b) The evidence showed that Carson acquired vested rights.
The evidence presented to the ZBA, viewed most favorably to the County,
showed that Carson acquired vested rights to develop the property under the zoning
regulations permitting 9000-square-foot lots. See Spalding County v. East
Enterprises., 232 Ga. 887, 889 (209 SE2d 215) (1974) (landowner with vested rights
may use property in manner consistent with zoning code in existence at time rights
vested, even if another zoning code subsequently is adopted prohibiting such use).
A landowner acquires vested rights, among other ways, by making “a
substantial change in position by expenditures in reliance upon the probability of the
issuance of a building permit, based upon an existing zoning ordinance and the
assurances of zoning officials[.]” Barker v. Forsyth County, 248 Ga. 73, 76 (2) (281
SE2d 549) (1981). Accord WMM Properties. v. Cobb County, 255 Ga. 436, 439 (1)
(d) (339 SE2d 252) (1986). This rule for the acquisition of vested rights “is derived
from the principle of equitable estoppel[.]” Cohn Communities v. Clayton County,
257 Ga. 357, 358 (1) (359 SE2d 887) (1987). Under the principle of equitable
estoppel, the zoning official’s assurance may be in the form of an act or omission. See
North Ga. Mountain Crisis Network v. City of Blue Ridge, 248 Ga. App. 450, 452 (2)
(546 SE2d 850) (2001).
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In this case, the evidence showed that Carson and Brown discussed Carson’s
planned development of the property with 9000-square-foot lots. At that meeting, in
response to Carson’s inquiry, Brown confirmed that the current zoning code
permitted development at that density. Based on the two men’s discussion at the
meeting, Carson proceeded to buy the property and make expenditures pursuing the
property’s development. This evidence shows that Carson
ma[de] a substantial change in position by expenditures in reliance upon
the probability of the issuance of a building permit, based upon an
existing ordinance and the assurances of zoning officials, [thereby]
acquir[ing] vested rights . . . entitl[ing him] to have the permit issued
despite a change in the zoning ordinance which would otherwise
preclude the issuance of a permit.
Cohn Communities, 257 Ga. at 358 (1). See Barker, 248 Ga. at 73, 76 (2) (purported
assurances that a “project would be permissible under existing agricultural zoning as
a commercial recreation use if certain modifications were made” could give rise to
vested rights, but the landowner was not entitled to summary judgment because there
was a factual dispute as to whether such assurances had actually been given).
We are not persuaded by the County’s arguments to the contrary. The County
argues that Brown’s meeting with Carson regarding the proposed development did
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not constitute an assurance that could give rise to vested rights because the evidence
showed that Brown, in the words of his affidavit, “made no representations as to
future [zoning code] changes that might impact the indicated property nor did [he]
guarantee that Carson would be able to build out this subdivision at 9,000 square foot
lots.” But there is no requirement that the zoning official’s assurances cover possible
future changes. Georgia law does not require the assurance to make any specific
representation or contain any magic words. As stated above, the assurance may take
the form of an act or omission. See North Ga. Mountain Crisis Network, 248 Ga.
App. at 452 (2). See also Barker, 248 Ga. at 78 (Hill, J., dissenting) (noting that the
assurances at issue in a case in which the majority found the landowner might have
acquired vested rights were not assurances “that the existing ordinance would not be
changed”).
And we do not agree with the County’s assertion that Brown’s confirmation of
the property’s zoning status was insufficient to create vested rights. The County cites
for this proposition our Supreme Court’s decision in Cohn Communities v. Clayton
County, supra, 257 Ga. 357, which the County argues “is on all fours and controls.”
We disagree with the County’s reading of Cohn Communities. In that case, our
Supreme Court held that a “neutral statement of the present zoning in effect” did not
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create a vested right. Id. at 359 (1). That statement was a “letter from the county
planner stating that the multi-family parcel at issue in th[e] appeal ‘is presently zoned
R-3 Multi-Family Residence District according to the current Clayton County Zoning
Resolution text and map.’” Id. at 357. There was no evidence in Cohn Communities
that the county planner who made that statement had “notice . . . that the landowner
[was] about to expend substantial sums in reliance on information received.” Id. at
359 (1). By contrast, Brown’s confirmation to Carson that the then-existing zoning
code would allow development of 9000-square-foot lots occurred within the context
of a face-to-face discussion between the two men about Carson’s intention to
purchase and develop the property. In addition, the landowner in Cohn Communities
only spent $600 in reliance upon the county planner’s letter. Id. Here, by contrast,
after meeting with Brown Carson spent more than $83,000 to prepare the property for
development. Given these significant distinctions, Cohn Communities does not
require a conclusion that Carson did not acquire vested rights.
The County also challenges the evidence that Carson made expenditures in
good faith reliance on his conversation with Brown, arguing that Carson’s affidavit
testimony on that point was insufficiently detailed. The County suggests that some
of Carson’s expenditures could have occurred before Carson met with Brown or after
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Carson learned that the County had imposed a moratorium affecting his ability to
obtain a land disturbance permit. But the County did not dispute this testimony before
the ZBA; it merely argued that “the information [about expenditures was] a little thin”
before returning to its argument that Carson had not shown he received the necessary
assurances to give rise to vested rights. Simply put, there was no evidence before the
ZBA that Carson’s expenditures were other than what he claimed them to be. Given
that no live testimony was presented to the ZBA and the ZBA made no express
written findings of fact or conclusions of law, we will not assume that the ZBA chose
not to credit Carson’s undisputed testimony on the issue of expenditures. See
generally Hyperdynamics Corp. v. Southridge Capital Mgmt., LLC, 305 Ga. App.
283, 284 (I) n. 1 (699 SE2d 456) (2010) (noting importance of live testimony to trial
court’s ability to make credibility assessments of witnesses) (physical precedent
only).
(b) Other arguments for reversal.
Alternatively, Carson argues that we should reverse the superior court’s ruling
because he acquired vested rights by initiating a county procedure for obtaining sewer
easements, and because the zoning ordinance governing the administrative process
for determining vested rights did not contain sufficiently ascertainable standards for
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that determination. Given our above conclusion that Carson acquired vested rights by
another means, we do not address the merits of these alternative arguments.
2. The action for mandamus and injunctive relief (Cases No. A20A2016 and
A20A2017).
Cases No. A20A2016 and A20A2017 are an appeal and cross-appeal from the
superior court’s summary judgment ruling in Carson’s action for mandamus and
injunctive relief, which he brought against Brown and another person in the County’s
planning department. In that action, which previously has been before this court in
a different procedural posture, see Carson v. Brown, 348 Ga. App. 689 (824 SE2d
605) (2019), Carson asked that the superior court compel the defendants to declare
the moratorium on land-disturbance-permit applications to be void and to process
Carson’s September 2016 permit application and approve it under the version of the
zoning code permitting 9000-square-foot lots, without regard to the moratorium. In
a ruling on cross-motions for summary judgment, the superior court denied most of
Carson’s requested relief, including Carson’s request that his permit application be
processed without regard to the moratorium. The trial court did rule that Carson was
entitled to have his permit application accepted and processed — but subject to the
moratorium.
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On appeal, Carson argues that the trial court erred in ruling that the moratorium
was valid, in ruling that the defendants had not accepted his permit application in
September 2016 when he turned it in, and in refusing to require the defendants to
process the permit application without regard to the moratorium. On cross-appeal, the
defendants argue that the trial court erred in requiring them to accept Carson’s permit
application, in concluding that Carson’s action was not barred by his failure to
exhaust administrative remedies, and in ruling that an earlier iteration of the
moratorium was invalid.
We cannot consider the merits of these cross-appeals if our resolution of
A21A0139 renders them moot. See Barrow v. Raffensperger, 308 Ga. 660, 666 (2)
(b) (842 SE2d 884) (2020). And we find that it does.
A case is moot, among other reasons, “when it seeks to determine an issue
which, if resolved, cannot have any practical effect on the underlying controversy[.
W]hen an alternative remedy exists that is as complete and convenient as mandamus,
the extraordinary remedy of mandamus will not lie. The same is true as to injunctive
relief.” Barrow, 308 Ga. at 667 (2) (b) (citations and punctuation omitted).
The controversy underlying Carson’s action for mandamus and injunctive relief
is whether Carson may develop the property with 9000-square-foot lots. In that
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action, he asserts that he is entitled to do so because he acquired vested rights when
he sought a land disturbance permit in September 2016. See WMM Properties, 255
Ga. at 438 (1) (b) (“A landowner has a right . . . to be issued a building permit in
accordance with zoning regulations as such regulations exist at the time a proper
application for building permit is submitted to the proper authority.”). The specific
issues presented in the appeal and cross-appeal, concerning the validity and effect of
the moratorium and the circumstances surrounding Carson’s filing of and the county’s
response to the September 2016 permit application, pertain to Carson’s assertion that
he acquired vested rights by virtue of that application.
But as explained above in our resolution of Case No. A21A0139, by September
2016 Carson already had obtained vested rights to develop the property with 9000-
square-foot lots. Consequently, even though the zoning code subsequently changed,
Carson is “entitled to receive the necessary building permits to [develop the property
in accordance with his vested rights] if [he] complie[s] with all requirements for the
building permits.” Cannon v. Clayton County, 255 Ga. 63, 64 (335 SE2d 294) (1985).
Whether or not we affirm the superior court’s ruling in the action for mandamus and
injunctive relief has no effect on those vested rights or on Carson’s ability to seek a
land development permit based on those rights. Given our ruling in Case No.
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A21A0139, Carson now has an alternative remedy “as complete and convenient as
mandamus [or] injunctive relief.” Barrow, 308 Ga. at 667 (2) (b) (citations and
punctuation omitted). He may simply file a new application for a land disturbance
permit. For this reason, Carson’s action for mandamus and injunctive relief is moot,
meaning that Cases No. A20A2016 and A20A2017 “must be dismissed, not
adjudicated.” Barrow, supra at 666 (2) (b).
Appeals dismissed in Cases No. A20A2016 and A20A2017. Judgment reversed
in Case No. A21A0139. Doyle, P. J., and Hodges, J., concur.
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