BBC Land & Development, Inc. v. Butts County , 281 Ga. 472 ( 2007 )

640 S.E.2d 33 (2007)

BBC LAND & DEVELOPMENT, INC. et al.
v.
BUTTS COUNTY et al.

No. S06A1686.

Supreme Court of Georgia.

January 8, 2007.

Winston A. Denmark, Steven M. Fincher, Fincher Denmark & Williams, LLC, Jonesboro, for Appellant.

Kenneth Gene Lawrence, Fears Lawrence & Turner, P.C., Michael A. O'Quinn, J. Kevin Walters, O'Quinn & Cronin, McDonough, for Appellee.

BENHAM, Justice.

This appeal concerns the question whether vested rights to build in accordance with prior zoning requirements are transferable. Appellants BBC Land & Development, Inc., (hereinafter, BBC) and JohnScar, LLC, (hereinafter, JohnScar) each bought property in Butts County for development. Both properties were zoned R-1-C, which at the time of appellants' purchases permitted construction of homes with a minimum size of 1,500 square feet. Both developers submitted plats showing houses of that size. After the County approved the plats and both developers expended money developing the properties consistent with the existing zoning, the County amended the zoning ordinance to provide for a minimum house size of 2,000 square feet in R-1-C. The developers subsequently sold lots in the subdivisions to builders, including appellant HTB Builders, Inc. When applications by the builders for building permits were denied on the ground the planned houses did not comply with the 2,000-square-foot limit of the R-1-C zoning classification, BBC, JohnScar, and HTB sued Butts County seeking injunctive relief, mandamus, declaratory judgment, and damages. The trial court's judgment held, pursuant to the parties' stipulation, that the developers had acquired vested rights to build on the property in accordance with the prior zoning, citing WMM Properties, Inc. v. Cobb County, 255 Ga. 436, 339 S.E.2d 252 (1986), but concluded that those vested rights were not transferable to subsequent purchasers. This appeal is from the trial court's denial of the equitable and extraordinary relief sought by appellants.

Appellants' position is that a landowner's vested right to develop land in accordance with previous zoning attaches to the land and benefits a subsequent purchaser. Appellants concede there is no Georgia law establishing that proposition and argue instead that such vested rights are analogous to nonconforming uses, and since nonconforming uses run with the land to the benefit of successors in title (see, e.g., Ansley House, Inc. v. City of Atlanta, 260 Ga. 540, 397 S.E.2d 419 (1990)), so should the vested rights of the landowner. Because there are crucial differences between a nonconforming use and a landowner's vested right to build in accordance with prior zoning, we do not accept appellants' analogy or the conclusion they draw from it.

One crucial difference between vested rights and nonconforming uses is temporal. "Nonconforming uses are uses of structures which were existing prior to the enactment of an ordinance rendering them nonconforming." Corey Outdoor Advertising, Inc. v. Board of Zoning Adjustments of City of Atlanta, 254 Ga. 221(4), 327 S.E.2d 178 (1985). "``A use which is merely contemplated for the future but unrealized as of the effective date of the regulation' does not constitute a nonconforming use. [Cit.]" North Georgia Mountain Crisis Network, Inc. v. City of Blue Ridge, 248 Ga.App. 450(1), 546 S.E.2d 850 (2001). By contrast, a landowner's vested right to build in accordance with previous zoning relates to the future, to an unrealized use of land.

Another crucial difference is the degree to which each is defeasible. A vested right is one which cannot be divested without the consent of the person to whom it belongs. Goldrush II v. City of Marietta, 267 Ga. 683(7), 482 S.E.2d 347 (1997). A nonconforming use, however, is not so indefeasible since "[a] governing authority can require a nonconforming use to be terminated in a reasonable time. [Cits.]" Flippen Alliance for Community Empowerment, Inc. v. Brannan, 267 Ga.App. 134(2), 601 S.E.2d 106 (2004).

Perhaps the most telling difference with regard to the question of transferability with the land is the way vested rights and nonconforming uses come into being. Vested rights to develop property in accordance with prior zoning, and therefore not in accordance with current zoning, come into being because the owner of the rights has made a substantial change of position in relation to the land, has made substantial expenditures, or has incurred substantial obligations. Goldrush II v. City of Marietta, supra, 267 Ga. at 698, 482 S.E.2d 347; WMM Properties, Inc. v. Cobb County, supra, 255 Ga. at 439, 339 S.E.2d 252. Nonconforming uses come into being initially as legal uses (Corey Outdoor Advertising, Inc. v. Board of Zoning Adjustments of City of Atlanta, supra, 254 Ga. at 227, 327 S.E.2d 178), and become nonconforming because of a subsequent change of zoning. Id. at 226, 327 S.E.2d 178. Thus, while vested rights to develop property in accordance with prior zoning come into being because of the investment of the owner and may thus appropriately be deemed the property of the owner, a nonconforming use develops because of actions of the governing authority and, not being due to any action of the owner, becomes part of the character of the property.

We conclude, therefore, based on the difference between nonconforming uses and vested rights to develop property in accordance with prior zoning, and especially on the nature of the vested rights as a property interest of the owner of the property, earned by the owner's substantial change of position in relation to the land, substantial expenditures, or incurring of substantial obligations, that vested rights to develop property in accordance with prior zoning are personal to the owner of them and are not transferable with the land.

Finally, appellants argue that such a holding is contrary to the holding in Goldrush II v. City of Marietta, supra, 267 Ga. at 694, 482 S.E.2d 347, that an owner cannot be divested of a vested right without his consent. However, since appellants are fully entitled to exercise the rights themselves so long as they own the property, and the choice to sell the property is voluntary, any loss of the right occasioned by the sale must be considered to be with appellants' consent. Thus, the holding that the rights in question are not transferable does not divest appellants BBC and JohnScar of any right without their consent.

Judgment affirmed.

All the Justices concur.