Simon H. Bloom of Powell Goldstein LLP
20-1
Moratoria:
What Do The Cases Tell Us On When A Jurisdiction Can Impose A Moratorium?
Simon H. Bloom, Esq.
Stephanie E. Dyer, Esq.
Powell Goldstein, LLP
Fourteenth Floor
1201 West Peachtree Street, NW
Atlanta Georgia 30309-3488
Direct Dial: 404.572.6791
Facsimile: 404.572.6999
Email: [email protected]
I.
Introduction
A moratorium is a resolution or ordinance passed by the local governmental body which
freezes certain land uses. It is designed to maintain the status quo in a given area. Georgia’s
counties and cities have used building moratoria to stop the issuance of certain types of permits
when special land use problems arise. “[B]uilding moratoria are sometimes referred to as ‘stopgap’ zoning measures which are intended to temporarily ‘freeze’ land development by permitting
only existing land uses of land or by allowing issuances of building permits for only those land
uses that would not be inconsistent with a contemplated plan or zoning change.”1 For example,
the City of Roswell issued a moratorium on billboard applications after a court invalidated its
existing sign ordinance.2 Fulton County enacted a sewer moratorium until it could determine
how to connect more users and comply with federal environmental laws. One Louisiana
jurisdiction used a moratorium to prohibit any new fast-food restaurants in certain locations.3
Sometimes local governments enact moratoria to allow time for studies on a particular issue or to
1
1 Rathkopf’s The Law of Zoning and Planning § 13:1 (4th Ed. 2006).
City of Roswell v. Outdoor Systems, Inc., 274 Ga. 130, 549 S.E.2d 90 (2001).
3
Copeland Enterprises v. City of New Orleans, 372 So.2d 764 (La. Ct. App. 4th Cir. 1979).
2
Law Seminars International | Growth Management in Georgia | January 22 & 23, 2007 | Atlanta, GA
develop a new law or comprehensive plan. 4 In areas of expanding development and rapid
growth, municipalities use moratoria to “hit the brakes” to give planning and zoning departments
time to catch up and breathe.
Although, there is no explicit statutory authority enabling Georgia’s municipalities to
issue these moratoria, the municipalities often do so under their broad zoning power.5
The
Georgia Constitution gives expansive zoning power to counties. Article IX, § II, Par. IV states
that “[t]he governing authority of each county and of each municipality may adopt plans and
may exercise the power of zoning. This authorization shall not prohibit the General Assembly
from enacting general laws establishing procedures for the exercise of such power.”6 The
Georgia Supreme Court recognized the ability to institute a moratorium in Taylor v. Shetzen.7 In
that case, the Georgia Supreme Court explained that an “interim” zoning ordinance adopted
because of an “emergency” was not automatically render the ordinance void.8
This paper will address how Georgia’s courts have addressed the moratoria phenomenon
and challenges mounted on behalf of property owners. Specifically, Georgia courts considering
the use of moratoria appear to focus on procedural due process defects and substantive defects
that render the ordinance void.
II.
Procedural Defects
Because these interim laws are often imposed without the formal requirements of other
zoning regulations, frustrated property owners often try to challenge the prohibitions.9 Georgia
law requires that all zoning decisions comply with the notice and hearing requirements set forth
4
See generally 4 Rathkopf’s The Law of Zoning and Planning § 69:15 (4th Ed. 2006).
See 1 Rathkopf’s The Law of Zoning and Planning § 13:10 (4th Ed. 2006).
6
Ga. Const. 1983 Article IX, § II, Par. IV.
7
212 Ga. 101, 90 S.E.2d 572 (1955).
8
Id.
9
32 Am. Jur. Proof of Facts 3d 485 (2006).
5
2
in the Zoning Procedures Law.10 Specifically, a local government making a zoning decision
must publish notice and hold a public hearing.11 These statutory requirements serve as the
minimal due process owed to individuals when the government uses its zoning power to affect
property rights.12 Moratoria, however, are often passed without the formal notice and hearing
process outlined in O.C.G.A. § 36-66-4.
In City of Roswell v. Outdoor Systems, Inc., a property owner challenged the sign permit
moratorium because the City of Roswell did not comply with the notice and hearing procedures
described in the Zoning Procedures Law.13 In November of 1999, a trial court struck Roswell’s
sign ordinance as unconstitutional.14 Roswell responded by issuing a moratorium on acceptance
of sign applications for signs that exceeded a certain size.15 The moratorium expired in thirty
days unless the city council repealed it earlier. The City enacted the moratorium so that it might
draft and enact new sign regulations.16 When the city did not grant an outdoor sign company’s
four sign permit applications, the sign company filed a mandamus action seeking to have the
court intervene. The sign company sought to invalidate the ordinance because the city did not
comply with the notice provisions of O.C.G.A. § 36-66-4(a) regarding final zoning decisions. 17
The Supreme Court reversed the trial court’s writ of mandamus finding that the temporary
moratorium was not a “final legislative action” and therefore not a zoning decision.18 The court
reasoned that the prohibition was not permanent, but merely an emergency measure designed to
10
O.C.G.A. § 36-66-4.
O.C.G.A. § 36-66-4(a).
12
City of Roswell v. Outdoor Systems, Inc., 274 Ga. 130, 549 S.E.2d 90 (2001).
13
274 Ga. 130, 549 S.E.2d 90 (2001).
14
SMD v. City of Roswell, Civil Action Number E-65358 (Fulton County Superior Court Nov. 18, 1999).
15
City of Roswell v. Outdoor Systems, Inc., 274 Ga. 130, 549 S.E.2d 90 (2001).
16
Id. at 130, 549 S.E.2d at 91.
17
Id.
18
Id. at 130-31, 549 S.E.2d at 91.
11
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preserve the status quo so that a new law could be enacted. Because the moratorium was not a
final zoning decision, it was exempt from the notice requirements and valid.19
Although the Supreme Court upheld this moratorium, other moratoria could still be
challenged on procedural grounds.
In Outdoor Systems, the Court held that the City of
Roswell’s moratorium was not a zoning decision because it only lasted 30 days and was in
response to a trial court invalidating its sign ordinance. One should still consider arguing that
moratoria that are longer in nature and non necessitated by emergency are distinguishable and
should be characterized as zoning decisions, thus triggering the Zoning Procedures Law
requirements.
III.
Substantive Challenges
Property owners also challenge moratoria based upon a substantive defect making the
ordinance void or unconstitutional. First, some have argued that the moratorium exceed the
government’s police power. Second, in other cases, moratoria have been invalidated because
they sought to impact an area preempted by state statute. Third, the moratorium may violate the
home rule act. Fourth, the landowner may argue that the moratorium interferes with his vested
rights or that it is an illegal taking.
A.
Invalid Use of Police Power.
In Dekalb County v. Townsend Associates, Inc., the Court focused on the validity of the
County’s exercise of its police power in passing the moratorium.20 In Townsend, the landowner
alleged that it acted upon assurances of the County that sewer services would be available to the
property by the end of the year.21 The following year TAI purchased and developed the
19
Id. at 131, 549 S.E.2d at 92.
243 Ga. 80 (1979).
21
Id.
20
4
property. Two months prior to the completion of the development, the County imposed a
moratorium on the issuance of sewer tap-ins.22 The moratorium was not limited in time nor was
its necessity indicated in its terms.23 The court applied a three-pronged test for assessing whether
this was a proper exercise of the police power: 1) did the public interest require such
interference; 2) were the means used reasonably necessary for the accomplishment of the
purpose; and 3) is the result unduly oppressive upon individuals.24 The court therefore concluded
that there was insufficient evidence of reasonable necessity for the moratorium and upheld the
trial court’s decision ordering the issuance of the tap-ins.25
B.
Moratorium Is Void for Vagueness.
Moratoria may also be struck as too vague and uncertain to be enforceable.26 Monroe
County adopted a “Moratorium on Commercial Development” in 1981.27
Although the
ordinance was entitled a moratorium, it was not a complete ban on new commercial
development, but instead established a system whereby commercial development could proceed
after permission by the Board of Commissioners.28 The Supreme Court struck the moratorium
because it gave absolute discretion to the commissioners without providing sufficient objective
standards to meet the due process requirements.
The “resolutions are void because they
improperly allow uncontrolled discretion by the [board of commissioners] in granting or denying
a permit application and are otherwise too vague, indefinite and uncertain to be enforceable.”29
22
Id.
Id. at 81.
24
Id. at 82.
25
Id.
26
Davidson Mineral Properties, Inc. v. Monroe County, 267 Ga. 215, 357 S.E.2d 95 (1987).
27
Davidson Mineral Properties, Inc. v. Monroe County, 267 Ga. 215, 357 S.E.2d 95 (1987).
28
Id. at 216, 357 S.E.2d at 96.
29
Id.
23
5
C.
State Law Preempts Moratorium.
A local order that is pre-empted by state law is void. The Georgia Constitution provides
that state statutes control over local ordinances. “Laws of a general nature shall have uniform
operation throughout this state and no local or special law shall be enacted in any case for which
provision has been made by an existing general law, except that the General Assembly may by
general law authorize local governments by local ordinance or resolution to exercise police
powers which do not conflict with general laws.”30 If the local moratorium interferes with a state
law, the court will invalidate the prohibition.
For example, in 2002, the City of Buford issued a one-year moratorium on the
construction of electric power substations within 500 feet of residential property.31 When
Georgia Power started to build a substation within 500 feet of residential property, the City
issued a stop work order.32 Georgia Power sought an injunction and a declaratory judgment that
the moratorium was unconstitutional.33 The Georgia legislature expressly provided that the
Public Service Commission has the power to regulate electric light and power companies, not
local governments.34 As such, the Court held that the regulation of electric companies is
preempted by state law and therefore the City of Buford’s moratorium was invalid.35
D.
The Moratorium Violates Georgia’s Home Rule Act.
Courts will also invalidate a moratorium if it violates the Home Rule Act. The Home
Rule Act of the Georgia Constitution allows the governing authority of each county the
legislative authority “to adopt clearly reasonable ordinances, resolutions, or regulations relating
30
Ga. Const. 1983, Art. III. Sec. VI, Par IV(a).
City of Buford v. Georgia Power Co., 276 Ga. 590, 581 S.E.2d 16 (2003).
32
Id.
33
Id.
34
Id. at 591, 581 S.E.2d at 17-18.
35
Id.
31
6
to its property, affairs, and local government for which no provision has been made by general
law and which is not inconsistent with this Constitution.”36 Recently, Georgia’s Supreme Court
has considered whether county ordinances enacting moratoria violated the Home Rule Act by
interfering with a condemning authority’s eminent domain power.
In June of 2000, Rabun County’s Board of Commissioners adopted a moratorium, which
issued a moratorium on the construction of high voltage lines in the county for three (3) years.37
The County stated that the moratorium was necessary to allow ongoing research and studies on
whether exposure to the electromagnetic fields caused by additional electricity transmission
facilities are likely to present a risk to the health, safety and welfare of Rabun County’s
citizens.38 The Georgia Transmission Corporation (“GTC”) filed a declaratory judgment action
challenging the constitutionality of the moratorium. In Rabun County v. Georgia Transmission
Corporation, the Supreme Court started its analysis by recognizing that Georgia’s statutes
explicitly give GTC eminent domain power to fulfill its purpose of providing electric power and
services to Georgia.39 It then reasoned that Rabun County’s moratorium prevented the GTC
from building any additional electric lines in a seven mile portion of Rabun County and therefore
effectively infringed on GTC’s power to acquire property through eminent domain.40 The Court
found that Rabun County’s ordinance violated the Home Rule because it interfered with GTC’s
right to exercise eminent domain.41 As such, the Court upheld the superior court’s judgment
invalidating Rabun County’s moratorium.
36
Georgia Constitution of 1983, Art. IX, § I, Par. I(a).
Rabun County v. Georgia Transmission Corporation, 276 Ga. 81, 575 S.E.2d 474 (2003).
38
Id. at 83, 575 S.E.2d at 475.
39
Id. at 84-85, 575 S.E.2d at 476-77.
40
Id.
41
Id.
37
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Cobb County also attempted to restrict construction on new electric lines. The Cobb
County Board of Commissioners enacted a seven and one-half month moratorium on the
construction of above-ground electrical transmission lines exceeding 115 kilovolts.42 The only
difference between Cobb County’s moratorium from Rabun County’s prohibition was the length
of the ban.43
Based on the Court’s decision in Rabun County v. Georgia Transmission
Corporation, the Supreme Court also invalidated Cobb County’s prohibition.44
In June of 2004, Forsyth County amended its Unified Development Code creating the
Forsyth County Power Transmission Line Overlay Zoning District (“Ordinance”).45 Under the
Ordinance, Forsyth County prohibited construction, installation, or operation of high voltage
transmission lines in the district unless the electric utility associated therewith complies with the
Ordinance’s procedures and obtains the commissioner’s approval.46 The Georgia Transmission
Corporation (“GTC”) did not seek approval under Forsyth’s Ordinance; instead, it brought a
declaratory judgment action challenging the constitutionality of the ordinance.47 Forsyth County
argued that its Ordinance was not a moratorium like Cobb County and Rabun County’s
ordinances, but merely provided “modest oversight” to GTC’s process.48 The Georgia Supreme
Court, however, found that the Ordinance allowed the County to prevent GTC from constructing
lines unless it successfully complied with its procedures. The Court found this to be an unlawful
restriction on GTC’s eminent domain power and following the previous cases held that the
Ordinance violated the Georgia Constitution’s home rule and was therefore unconstitutional.49
42
Cobb County v. Georgia Transmission Corporation, 276 Ga. 367, 578 S.E.2d 852 (2003).
Id. at 368, 578 S.E.2d at 853.
44
Id.
45
Forsyth County v. Georgia Transmission Corporation, 280 Ga. 664, 632 S.E.2d 101, 102 (2006).
46
Id. at 665, 632 S.E.2d at 102.
47
Id.
48
Id. at 667, 632 S.E.2d at 104.
49
Id.
43
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E.
Moratorium Interferes with Property Owner’s Vested Rights.
A property owner who has already received assurances from the permitting authority may
argue that the moratorium interferes with his vested rights.50 If a property owner becomes an
actual applicant seeking to alter the use of his land, he has a vested right to consideration of his
application under the statutory law then in existence.51 In Recycle and Recovery, Inc. v. Georgia
Board of Natural Resources, the defendant issued a permit for the construction of a solid waste
treatment facility.52 Soon thereafter, RRI applied for a major modification of the facility. The
General Assembly then amended the applicable statute so as to block any such modifications.
The Court ultimately found that the filing of a proper application for a sanitary landfill permit
gave the landowner a vested right to issuance of the permit.53
In Cannon v. Clayton County, Clayton County imposed a moratorium on building
permits for mobile home parks after Cannon had purchased the property for that purpose and
applied for the permits.54 The Court found that the County may not defeat the application by
placing a moratorium on the permits sought after he applied for the permit, made substantial
expenditures, and received assurances from zoning officials.55
Depending on where the landowner is in the process of obtaining the permit, he should
argue that he has a vested rights in the property and therefore the moratorium is inapplicable.
50
1 Rathkopf’s The Law of Zoning and Planning § 13:15 (4th Ed. 2006).
Recycle and Recovery, Inc. v. Georgia Board of Natural Resources, 266 Ga. 253, 255 (1996).
52
Id.
53
Id. See also, Inner Visions, Ltd. v. City of Smyrna, 260 Ga. 902 (1991)(landowner had the right to have his
application for a license considered under the terms of the ordinance as it existed at the time that the application was
filed); WMM Properties v. Cobb County, 255 Ga. 436 (1986)(“a landowner has a right, enforceable by mandamus,
to be issued a building permit in accordance with zoning regulations as such regulations existed at the time a proper
application for building permit is submitted to the proper authority.”); Gifford-Hill v. Harrison, 229 Ga. 260 (1972)
54
255 Ga. 63 (1985),
55
Id. at 64. See also, WMM Properties, (when a landowner makes expenditures in reliance on the existing zoning
and assurances by zoning officials that they would be able to get a permit for the use planned, county officials may
not subsequently impose a moratorium on the issuance of all building permits for the use intended).
51
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F.
Moratorium As An Illegal Taking.
A property owner may also argue that the moratorium temporarily denies the owner all
reasonable use of her land and thus is an illegal taking.56 There appear to be three lines of
reasoning on this issue from other jurisdictions: 1) a moratorium that allows the owners a
reasonable use of her land is not a “taking”; 2) a moratorium that denies the owners all
reasonable use of her land will not be a “taking” if it is reasonably limited in time and the
governing body acts in good faith to expeditiously adopt a final zoning plan or change; and 3) a
moratorium that temporarily denies the owners all reasonable use of land will not be a “taking”
when the controls are reasonably limited in time and further a significant public purpose. 57
Georgia courts have not yet ruled on this issue and thus it remains to be seen whether this will be
an effective argument against building moratoria.
IV.
Conclusion
As cities and counties continue to struggle with rapid development and the problems that
arise therein, they will also likely to continue to use moratoria to halt the process and deny
permits for development.
Since Georgia law defers such wide-ranging authority to local
governments, property owners are forced to be creative and vigilant in an effort to protect their
rights to use their property as they see fit.
::ODMA\PCDOCS\ATL\1115967\1
56
57
1 Rathkopf’s The Law of Zoning and Planning § 13:3 (4th Ed. 2006).
1 Rathkopf’s The Law of Zoning and Planning § 13:17 (4th Ed. 2006)(citations omitted).
10