Presenting And Litigating Special Use Permits In Georgia

David H. Flint, Esq.
Mark W. Forsling, Esq.
Schreeder, Wheeler & Flint, LLP
Atlanta, Georgia

Introduction

This is a summary of the statutory and case law that has developed in Georgia with respect to the granting of special use permits.  Within the past decade, critical changes to the law have occurred – changes which have greatly affected how special use permits are presented and litigated.  In the wake of these changes, a small but informative body of case law has also developed which will likely prove useful in guiding both applicants and local governments through the process of granting special use permits.

Special Use Permits:  What Are They?

A "special use permit" is a permit designed to deal with particular uses of land that are difficult to fit within any existing use zones.  These permits are often desired by the community at large, but by their very nature have: "(1) a tendency to generate excessive traffic, (2) a potential for a large number of persons to be attracted to the area of the use, thus creating noise or other pollutants, (3) a detrimental effect upon the value of potential development of other properties in the neighborhood, or (4) a extraordinary potential for accidents or danger public health or safety." ¹ A special use permit is often referred to under many other names including conditional use permit, special approval, special exception, or special permit.  In essence, a special use permit allows for a use that does not necessarily fit neatly within the various land use districts and because of its potential interference with surrounding land uses, the granting of this permit may require the imposition of conditions, safeguards, or other special treatment in order to protect the neighboring property owners and the public at large.

The Former Law Governing Special Use Permits

Not too long ago, the method by which a local government issued a special use permit was an administrative procedure which was conducted along administrative law guidelines.  The local government would render its decision regarding whether to issue a permit and would stipulate what conditions, if any, to attach to the issuance only after conducting a formal hearing in accordance with administrative law requirements.  The great weight of legal challenges related to the special use permit process centered on the administrative hearing and specifically, whether the local board had adhered to due process requirements and administrative law guidelines when formulating its decision.  As will be discussed below, this all began to change in 1998 when the Georgia legislature changed the law's definition of zoning decisions and new case law began to develop.

The prior legal framework for a special use permit challenge generally turned on the ordinance governing the special use permit.  The analysis focused on the standards governing the grant of a special use permit, and the challenge might be whether the ordinance was too subjective and lacked criteria, or whether the ordinance had specific objective criteria that had been satisfied, thereby rendering the denial arbitrary.

For example, in Fulton County v. Bartenfeld, 257 Ga. 766, 363 S.E.2d 555 (1988), the applicant sought a special use permit for a landfill and was denied.   A petition for mandamus was granted and the county appealed.  The court found that the local ordinance contained objective criteria that had been met, and that the denial of the requested permit was "an act of discretion which is lacking in any articulable, objective ground of support."  257 Ga. at 770.  Therefore, the applicant had a clear legal right to the issuance to the permit.

In contrast, in Lithonia Asphalt Company v. Hall County Planning Commission, 258 Ga. 8, 364 S.E.2d 860 (1988), the applicant sought a certificate of zoning compliance and building permit from Hall County to build an asphalt plant on land zoned for heavy industrial use, and was denied.  The Court found that the language in the zoning ordinance governing the grant or denial of the special use was too general and unconstitutionally vague, and therefore denied due process.  The language in the ordinance stated "uses… which may cause injurious or obnoxious noise, vibrations, smoke, gas, fumes, odors, dust, fire hazard or other objectionable conditions shall require a finding by the Planning Commission that the proposed location, construction, and operation will not injury unduly the surrounding developments or the community either present or future."  Thus, this ordinance was the reverse of the Fulton County ordinance discussed in Bartenfeld that constrained the discretion of the county with objective standards.

On occasion, other ordinances were found to both provide some objective criteria, thus avoiding a vagueness challenge, and yet also provide discretion to the governing authority (that is, to not constrain them with rigid criteria).  See, for example, Suddeth v. Forsyth County, 258 Ga. 773, 373 S.E.2d 746 (1988)("We find the balancing test imposed on the board by the Forsyth ordinance sufficiently restricts the exercise of the board's discretion and distinguishes this ordinance from those considered in Arras and Lithonia Asphalt. While the zoning ordinance might have set forth in greater detail the criteria to be considered by the board in making its decision, nonetheless [the ordinance] is not so vague as to be constitutionally deficient and does establish ascertainable standards by which an applicant can intelligently seek to qualify." 258 Ga. at 776).

The Current Law Regarding Special Use Permits

As mentioned above, the law governing special use permits changed in 1998.  In 1998, the legislature amended the definition of "zoning decision" contained in O.C.G.A. 36-66-3, the Zoning Procedures Law.  First, "zoning decision" was changed by inserting the word "legislative" into the definition, becoming "final legislative action by a local government."  The existing four actions (adoption of zoning ordinance, amendment to text, map rezoning, annexation rezoning) were amended to include "the grant of a permit relating to special use of property." ² The implications of this change were enormous.  Due to the shift in Georgia law, the granting of a special use permit came to be seen as legislative action (like other zoning decisions) and was no longer subject to the same requirements of due process that a quasi-judicial proceeding would entail.³

Treating the granting of a "special use" permit as a legislative matter acts to provide a great deal of deference to the initial decision by the local board.   As one treatise asserted, when addressing the issuance of a special use permit, if the legislative body is deemed to be acting legislatively, it is "therefore subject only to such method and scope of review as attends legislative acts".⁴ In addition, a legislative body does not usually have to issue the findings of fact that an administrative body has to issue when rendering a decision.⁵It should be noted that although Georgia law was changed to specify that the issuance of a special use permit is a legislative action, most courts outside of Georgia have held that a legislative body, acting on the issuance of such a permit, is still acting administratively and is therefore subject to other, more stringent requirements.⁶

As evidenced above, amending the law to include the issuance of a special use permit as a zoning decision, and therefore final legislative action, has resulted in much greater deference being given to local zoning boards with respect to such decisions.  Generally speaking, if the granting of a special use permit is considered a legislative action, a writ of mandamus to require issuance of the permit is often the appropriate remedy to seek. ⁷ Case law in Georgia also supports this contention.  In the case of City of Atlanta v. Wansley Moving and Storage Company, the Supreme Court of Georgia held that mandamus is the proper remedy to review the denial of a special use permit.⁸ In this same case, the court said that "Mandamus will issue against a public officer under two circumstance: (1) where there is a clear legal right to the relief sought,…and (2) where there has been a gross abuse of discretion".⁹

Georgia courts have continued to flesh out the current law regarding the issuance of special use permits in Georgia and the effects of the 1998 legislative amendment.  The first major post-1998 amendment case, which helped to lay out the general framework of the current standing of the law, was Gwinnett County v. Ehler.¹⁰ In Ehler, an applicant was denied a special use permit and successfully sought a writ of mandamus in superior court.¹¹ In reversing the superior court's decision to grant mandamus, the court reiterated the holding from City of Atlanta v. Wansley Moving and Storage Company which said that mandamus shall issue "only where the petitioner has demonstrated a clear legal right to relief or a gross abuse of discretion".¹² The court went on to assert that because the guidelines in the county's zoning ordinance for the issuance of a special use permit had some subjective criteria, the applicant must show that denial was a gross abuse of discretion.¹³ In essence, the court said that if the criteria for the issuance of a special use permit contain any discretionary elements, the applicant cannot assert the argument that he is entitled to a clear legal right, but instead, must assert that the board has grossly abused its discretion.  The court went on to recognize that zoning is a legislative function (as opposed to a judicial function) and to hold that the standard of review for whether there has been a gross abuse of discretion is whether there is "any evidence" on the record to support the decision of the local zoning board.¹⁴

Although the Ehler case laid the groundwork for the current law regarding the issuance of special use permits, there have been several other important cases to note.  The Georgia Supreme court cases of City of Alpharetta v. Estate of Sims, and Fulton County v. Congregation of Anshei Chesed both reiterated the core holding in Ehler by: (1) recognizing that the issuance of a special use permit is a legislative matter, (2) asserting that mandamus is the appropriate remedy and that it will only issue upon the showing of a clear legal entitlement or a gross abuse of discretion, (3) and asserting that the proper standard of review is whether there is "any evidence" on the record of the original hearing which would support the decision of the local zoning board.¹⁵ In both of these cases, the court also clarified the standards under which mandamus shall issue by asserting that an ordinance with criteria which contain subjective aspects that must be met before a special use permit may issue, is discretionary, and therefore, a gross abuse of discretion must be shown.¹⁶

With regard to showing a gross abuse of discretion, one may inquire what amount of evidence on the record actually rises to the level of satisfying the "any evidence" standard which was established by the previously mentioned cases.  At first glance, this standard seems very broad and appears to quite literally mean that any amount of evidence present on the record, no matter how miniscule, will vindicate the board's decision.  Although there is no case or statutory law that directly addresses what level of evidence can satisfy this standard, several recent cases do provide some limited guidance.  In the case of Jackson County v. Earth Resources, an applicant was unhappy with the outcome of a board decision which denied a special use permit for a landfill. ¹⁷ After reiterating the previously established standards for mandamus, the court addressed whether there was "any evidence" on the record to support the decision rendered at the hearing.¹⁸The applicant asserted that the only evidence presented by opponents of the permit was "generalized fears" and that there was a tremendous amount of unrefuted expert testimony presented in favor of the application.¹⁹ In its decision, the Georgia Supreme Court held that some evidence had been presented at the hearing to support the decision of the board and said that whether the weight of the evidence presented at the hearing favored a decision, one way or another, was irrelevant as the standard of review was simply whether there was any evidence on the record to support the decision of the local governing body.²⁰ Another recent case of particular import is that of City of Roswell v. Fellowship Christian School.²¹ Here, a Christian school was denied a special use permit to expand its campus to include a 1500-seat stadium.²² In this case, the Georgia Supreme Court held that the "any evidence" standard had been met despite the fact that seemingly the only evidence on the record of the hearing were some concerns (although well founded) about the effect that the proposed use would have on traffic in the surrounding neighborhood.²³ In essence, although there is little statutory guidance and the existing case law is quite limited, it appears that the "any evidence" standard is quite broad and easy to meet (or, from the perspective of a party appealing a denial, very difficult to overcome).
In summary, in accordance with the 1998 amendment to O.C.G.A. 33-66-3, the granting of a special use permit is considered a zoning decision and, therefore, a final legislative matter.  If one wishes to challenge the denial of a special use permit, mandamus is the appropriate remedy, and it will only issue upon a demonstration of a clear legal entitlement (if there is no discretion afforded the board) or upon the showing of a gross abuse of discretion.  When evaluating whether a gross abuse of discretion has occurred, a court will uphold the board's decision so long as there is "any evidence" on the record of the board hearing which supports the board's decision.

Thoughts on Presenting or Trying a Special Use Permit

As made evident by the aforementioned legal decisions, the amendments to Georgia law made during the previous decade have created a significant change in the manner in which special use permits are analyzed.  Because the granting of a special use permit is a legislative matter, challenging a local board's decision is often a losing proposition.  It is often hard to overturn a denial of a permit so long as there is any evidence on the record to support the board's decision.  Assuming that a county's zoning ordinance provides some subjective criteria with regard to the issuance of a special use permit, in order to successfully appeal a denial, an applicant will have to address the "any evidence" standard head on.  In order to prevail under this standard, an applicant would likely have to show that there was no evidence anywhere on the record to support the decision of the local board.

Assuming that there is evidence on the record, the applicant's next recourse might be to argue that the "any evidence" standard is not as broad as it sounds and, therefore, the amount of evidence on the record was not enough to meet the required threshold such that a gross abuse of discretion has occurred.  In making this argument, one should be mindful of the aforementioned Fellowship Christian School case which found the "any evidence" standard met despite the fact that the little evidence on the record merely constituted some concerns about increased traffic.²⁴ In challenging this standard, an applicant may also be tempted to assert that the great weight of evidence was in his favor, but in keeping with the Earth Resources Case,²⁵this argument is unlikely to gain much traction.

As shown, challenging the denial of a special use permit is a difficult undertaking and is likely to result in failure.  Therefore, it is absolutely crucial for an applicant to prevail at the local zoning board level upon initial application.

Prevailing at the initial board hearing is the surest way for an applicant to meet with success.  Due to the heightened level of deference paid to a legislative zoning decision, not only is it difficult for an unsuccessful applicant to win an appeal, but potential opponents of the granting of a special use permit would also be hindered in an appeal as well.  Because of the great importance on prevailing at the initial hearing, there are some steps that should be taken in order to bolster an applicant's chances of success.

Prior to the hearing, an applicant should engage in a vigorous public relations campaign on behalf of his project.  He should specifically target this campaign to the residents (whether residential, commercial, and industrial) of the surrounding neighborhood in which he wishes to obtain a special use permit.  The applicant should listen to the neighbors' concerns, express empathy, present a strong argument in favor of the issuance of a special use permit, and provide candid answers to any questions.  The object of this campaign is twofold.  First, by listening to the concerns of the neighbors and answering questions truthfully, the applicant may build up a rapport with the neighbors and assuage their fears ahead of time such that vocal opposition to the permit might be tempered or eliminated entirely.  Second, by presenting to the neighborhood residents (and the public at large) a strong argument highlighting the benefits of granting the special use permit, the applicant will achieve positive publicity and may gain more support within the relevant community for the granting of the permit.  Local zoning boards are political animals, and the direction that the partisan winds are blowing will be very relevant if the issuance of a particular special use permit is a controversial issue.

The concerns of the zoning board members should be addressed as well.  At the actual board hearing, an applicant should have a compelling presentation prepared in order to maximize support for the permit.  This presentation should highlight the benefits of the permit and forcefully and factually address any concerns that are raised at the hearing.  If the applicant can afford it, expert testimony in favor of the project should also be given at the hearing.  The aforementioned should all be done with the objective of presenting as strong a case as possible and ensuring that there is ample evidence presented on the record at the hearing that would support the issuance of a special use permit.

Another issue that may confront an applicant or a zoning board is that of ex parte contacts.  Traditionally, ex parte contacts have been disallowed in adjudicative actions.  However, under Georgia law, a zoning decision, and therefore the issuance of a special use permit, is a final legislative decision.²⁶ Because the issuance of a special use permit is a legislative decision, ex parte contacts may be permissible between an applicant and members of the zoning board.  Generally, ex parte communications in legislative matters are not only allowed but even encouraged as part of the political process.²⁷ "Since legislative action involves the political process of lobbying and bargaining, elected representatives and their staff often speak ex parte with interested parties concerning the merits of a particular zoning proposal".²⁸

Ex parte contacts between an applicant and a board member may be beneficial from both parties' perspectives.  An applicant may wish to engage in lobbying on behalf of his permit with a board member in order to gain support for his permit.  By speaking to board members individually and away from the microscope of a public hearing, an applicant may have a better opportunity to persuade them to support his permit application.  In addition, in the less formal setting, both parties may come to a better understanding about the nature of the project.  As mentioned earlier, ex parte contacts and lobbying in particular are integral to the political process.  One recent Federal Court decision noted, "The Constitution does not require legislatures to use adjudicative –type procedures to give reasons for their enactments, or to act 'reasonably' in the sense in which courts are required to do; as already noted, legislatures can base their actions on considerations-such as the desire of a special-interest group…that would be thought improper in judicial-decision making".²⁹ In summation, because the issuance of a special use permit is a legislative matter, ex parte contacts between an applicant and a zoning board member are permissible and may be of value to both parties.

Conclusion

Tremendous changes related to the granting of special use permits have taken place in Georgia law during the past decade.  In addition, Georgia case law has rapidly evolved in order to keep up with the amended statute.  By making the issuance of special use permits a legislative matter, the legislature has granted even more deference to local government decisions concerning the approval or denial of such permits.  Furthermore, viable methods for appealing a local board's decision have also been altered.  Local governments and applicants, alike, would do well to take heed of these changes as they will greatly influence future applications for special use permits.

¹ 3 Ziegler, Rathkopf's The Law of Zoning and Planning, §41:01 (2003)

² O.C.G.A. 33-66-3 (4)(E).

³ Joseph A. All, Local Government Zoning Procedures: Change Definition of Zoning Decision to Include Grant of Special Use Permits, 15 Ga. St. U. L. Rev. 194 (1998).

⁴ 3 Ziegler, Rathkopf's The Law of Zoning and Planning, §61:45 (2003).

⁵3 Ziegler, Rathkopf's The Law of Zoning and Planning, §61:48 (2003).

⁶ 3 Ziegler, Rathkopf's The Law of Zoning and Planning, §61:45 (2003).

⁷3 Ziegler, Rathkopf's The Law of Zoning and Planning, §62:04 (2003).

⁸City of Atlanta v. Wansley Moving and Storage Company, 245 Ga. 794, at 796 (1980).

⁹ City of Atlanta v. Wansley Moving and Storage Company, 245 Ga. 794, at 796 (1980).

¹⁰ Gwinnett County v. Ehler, 270 Ga. 570 (1999).

¹¹Gwinnett County v. Ehler, 270 Ga. 570 (1999).

¹² Gwinnett County v. Ehler, 270 Ga. 570 (1999).

¹³Gwinnett County v. Ehler, 270 Ga. 570 (1999).

¹⁴ Gwinnett County v. Ehler, 270 Ga. 570 (1999).

¹⁵ City of Alpharetta v. Estate of Sims, 272 Ga. 680, at 680-681 (2000); See also Fulton County v. Congregation of Anshei Chesed, 275 Ga. 856, at 859 (2002).

¹⁶City of Alpharetta v. Estate of Sims, 272 Ga. 680 (2000);  See also Fulton County v. Congregation of Anshei Chesed, 275 Ga. 856, at 859 (2002).

¹⁷ Jackson County v. Earth Resources, 280 Ga. 389, at 389-390 (2006).

¹⁸ Jackson County v. Earth Resources, 280 Ga. 389, at 389-390 (2006).

¹⁹ Jackson County v. Earth Resources, 280 Ga. 389, at 391(2006).

²⁰Jackson County v. Earth Resources, 280 Ga. 389, at 391 (2006).

²¹ City of Roswell v. Fellowship Christian School, 281 Ga. 767 (2007).

²²City of Roswell v. Fellowship Christian School, 281 Ga. 767 (2007).

²³City of Roswell v. Fellowship Christian School, 281 Ga. 767, at 768-769 (2007).

²⁴ City of Roswell v. Fellowship Christian School, 281 Ga. 767, at 768-769 (2007).

²⁵Jackson County v. Earth Resources, 280 Ga. 389, at 391 (2006): Holding that the "any evidence" standard was met by a local zoning board despite the applicant offering an extraordinary amount of uncontested expert testimony on his behalf.

²⁶ O.C.G.A. 33-66-3

²⁷2 Ziegler, Rathkopf's The Law of Zoning and Planning, §32:11 (2003).

²⁸2 Ziegler, Rathkopf's The Law of Zoning and Planning, §32:11 (2003).

²⁹ Conistan Corp. v. Village of Hoffman Estates, 844 F.2d 461 (7th Cir. 1988); See also 2 Ziegler, Rathkopf's The Law of Zoning and Planning, §32:11 (2003).