FOURTH DIVISION
DOYLE, P. J.,
COOMER and MARKLE, JJ.
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.
http://www.gaappeals.us/rules
July 2, 2019
In the Court of Appeals of Georgia
A19A0298. CLAYTON COUNTY, GEORGIA v. NEW IMAGE
TOWING AND RECOVERY, INC.
MARKLE, Judge.
In this appeal, we are asked to decide whether the Clayton County Board of
Zoning Appeals (“BZA”) may require a business license permit applicant to comply
with sections 6.2 and 6.321 of the Clayton County Zoning Ordinance (“the Zoning
Ordinance”), and to submit a site plan of its proposed use of the property to show
such compliance. After the BZA concluded that New Image Towing and Recovery,
Inc. (“New Image”) was required to comply with those sections, New Image filed a
petition for writ of certiorari in the Superior Court of Clayton County challenging the
BZA’s decision. The superior court reversed the BZA’s decision. We granted Clayton
1
These sections set forth certain development standards and requirements for
applicable zoning districts. Section 6.32 addresses parking standards, specifically.
County’s (“the County’s”) application for discretionary appeal, and the County now
appeals, arguing that the superior court applied an improper standard of review and
erred in refusing to consider Article 1 of the Zoning Ordinance. We conclude that the
superior court misinterpreted the applicable ordinances, and therefore reverse.
On a petition for writ of certiorari, “[t]he scope of review of the superior court
is limited to all errors of law and determination as to whether the judgment or ruling
below was sustained by substantial evidence.” (Citation and punctuation omitted.)
City of Dunwoody v. Discovery Practice Mgmt., Inc., 338 Ga. App. 135, 138 (2) (789
SE2d 386) (2016); OCGA § 5-4-12 (b). “In the appellate courts, the standard of
review is whether there is any evidence supporting the decision of the local governing
body, not whether there is any evidence supporting the decision of the superior
court.” (Citation and punctuation omitted.) Jackson County v. Earth Res., Inc., 280
Ga. 389, 391 (627 SE2d 569) (2006).
So viewed, the record reflects that New Image, a towing and wrecker service,
leased a facility located in Morrow, Georgia in Clayton County’s Heavy Industrial
(“HI”) zoning district. The property had previously been occupied by a fencing
company. In October 2016, the Clayton County Planning and Zoning Administrator
(“the Administrator”) verified that towing and wrecking was a permitted use of the
2
property, and New Image was able to pursue its application for a business license.
During the application process, New Image met with the Technical Review
Committee (“TRC”), which included the County Water Authority, the Transportation
and Development Department, the Planning and Zoning Department, and the Fire
Department. The TRC directed New Image to submit a site plan to facilitate its
review, but New Image refused to do so.2 New Image’s application for a business
license was then suspended.
In an email dated March 2017, the Administrator responded to New Image’s
request for a written decision and confirmed that New Image was required to submit
a proposed site plan to show how it would comply with parking and other
development requirements under the Zoning Ordinance. New Image appealed this
decision to the BZA, and requested the issuance of its business license.
At a hearing before the BZA, New Image challenged the application of sections
6.2 and 6.32 of the Zoning Ordinance to its use of the property. Section 6.2 requires
compliance with the minimum development standards under Article 6, including the
2
New Image has not articulated a reason for its refusal to submit a site plan
before this Court or, as the record reflects, at any point during the proceedings below.
3
parking standards set forth in section 6.32, when a “structure, parking area or other
site feature . . . [is] enlarged, altered, or expanded.” (emphasis supplied).
New Image argued that the term “altered” related to physical alterations only;
therefore, because it did not intend to improve or alter the physical features of the
property, sections 6.2 and 6.32 did not apply, and the site plan was thus unnecessary.
The Administrator testified that it was common to request a site plan during the
business license application process, and that, in this instance, the site plan was
necessary to evaluate the effects of the proposed change in the use of the land on the
environment, and public safety and welfare. The BZA unanimously voted to uphold
the Administrator’s decision and found that New Image must submit a site plan to
show its compliance with sections 6.2 and 6.32.
New Image filed a petition for writ of certiorari to the superior court,
challenging the decision of the BZA. Following a hearing, the superior court reversed
the BZA’s decision. It strictly construed section 6.2 in favor of New Image as the
property owner, and found that section 6.2 applies only when enlarging, altering, or
expanding physical features of the property; therefore, New Image was not required
to adhere to the parking standards in section 6.32. The superior court further found
that New Image was not required to submit a site plan because there is no such
4
express requirement in Article 6. We granted the County’s application for
discretionary review, and this appeal followed.
1. In related enumerations of error, the County argues that the superior court
erred by reviewing de novo the BZA’s decision. The County further argues that the
superior court misinterpreted section 6.2 by ignoring its plain meaning and
impermissibly deferring to New Image’s interpretation of that section. We conclude
that the superior court erred in its construction of Article 6.
The County asserts that this matter does not involve construction of the Zoning
Ordinance because the BZA made a factual finding that New Image’s license
application was subject to sections 6.2 and 6.32, and, with regard to the requirement
for the site plan, the Administrator was exercising her administrative discretion. The
County thus contends that, instead of reviewing the BZA’s decision de novo, the
superior court was confined to consider “[w]hether the agency acted beyond the
discretionary powers conferred upon it, abused its discretion, or acted arbitrarily or
capriciously with regard to an individual’s constitutional rights.” City of Atlanta Bd.
of Zoning Adjustment v. Midtown North, Ltd., 257 Ga. 496, 499 (4) (360 SE2d 569)
(1987).
5
The standard of review in a certiorari proceeding before a superior court varies
depending on whether the matter involves an issue of fact or an issue of law. OCGA
§ 5-4-12 (b) provides that the superior court’s “review [is] limited to all errors of law
and determination as to whether the judgment or ruling below was sustained by
substantial evidence.” Because “the substantial-evidence standard is effectively the
same as the any-evidence standard,” courts apply the any-evidence standard when
reviewing issues of fact. (Citation omitted.) City of Atlanta Govt. v. Smith, 228 Ga.
App. 864, 865 (1) (493 SE2d 51) (1997). But when reviewing a question of law, such
as the interpretation of a zoning ordinance, the scope of review is de novo. See SDS
Real Property Holdings, Ltd. v. City of Brookhaven, 341 Ga. App. 862, 864 (1) (802
SE2d 100) (2017).
Here, the BZA did more than simply make a factual finding; rather, it did so
in the context of the Zoning Ordinance, specifically with respect to the meaning of
“altered” in section 6.2. Thus, the superior court was compelled, as we are, to
construe the ordinance in determining whether the agency overreached its authority.
Northside Corp. v. City of Atlanta, 275 Ga. App. 30, 31 (1) (619 SE2d 691) (2005);
see also SDS Real Property Holdings, Ltd., 341 Ga. App. at 864 (1); City of Atlanta
Bd. of Zoning Adjustment, 257 Ga. at 497-498 (1). And,
6
[w]e review the construction of a zoning ordinance under a de novo
standard. . . . Zoning ordinances are to be strictly construed in favor of
the property owner. Because statutes or ordinances which restrict an
owner’s right to freely use his property for any lawful purpose are in
derogation of the common law, they must be strictly construed and never
extended beyond their plain and explicit terms.
(Citation and punctuation omitted.) SDS Real Property Holdings, Ltd., 341 Ga. App.
at 862. Thus, the superior court’s error was not in the standard of review it applied,
but in the conclusion it reached upon construing the ordinance. Importantly, the
superior court failed to consider the common rules of statutory construction in its
analysis.
Our principles of statutory construction are well-settled and apply in our
construction of an ordinance. (Citation omitted.) Daniel Corp. v. Reed, 291 Ga. 596,
597 (732 SE2d 61) (2012).
As such, we look first to the text of the ordinance, and if the text is clear
and unambiguous, we look no further, attributing to the ordinance its
plain meaning. As we look to the words of the ordinance, we attribute
to those words their ordinary, logical, and common meanings, unless a
clear indication of some other meaning appears. And we read the
ordinance as a whole according to the natural and most obvious import
of the language, without resorting to subtle and forced constructions, for
the purpose of either limiting or extending its operation. Moreover, as
we consider the meaning of an ordinance, we remember that it is not to
be construed in a vacuum, but in relation to other ordinances of which
it is a part, and all ordinances relating to the same subject matter are to
be construed together, and harmonized wherever possible.
7
(Citations and punctuation omitted.) Id.; see also City of Buchanan v. Pope, 222 Ga.
App. 716, 717, (1) (476 SE2d 53) (1996).
Turning to the Zoning Ordinance, section 6.2 provides:
No structure, parking area, or other site feature regulated by this
ordinance shall be enlarged, altered, or expanded unless the minimum
improvements required by this Article are provided to the property to the
extent of its alteration or expansion. In the case of a substantial
expansion, the portion of the site affected must meet the requirements
of this Article. An alteration or expansion to an existing property is
substantial when the area or square footage of the expanded or altered
land (including property used for building space, parking, or storage) or
structure, respectively, exceeds twenty (25) percent of the area or square
footage of the existing land or structure, exclusive of the alteration or
expansion.
Section 6.32 pertains to parking standards, generally, and subpart PK-03 applies to
HI districts, providing minimum requirements for parking lots, such as paving,
drainage, and lighting.
Guided by the principles set forth above, as we consider the term, “altered,” in
section 6.2, we look to its plain and ordinary meaning. Daniel Corp. v. Reed, 291 Ga.
at 597. “Altered” is generally defined in broad terms as “made different in some
way.” https://www.merriam-webster.com/dictionary/altered. Next, we consider
sections 6.2 and 6.32 in the context of Article 6 in its entirety. Georgia Power Co. v.
8
Clark, 69 Ga. App. 273, 277 (1) (25 SE2d 91) (1943) (“In construing ordinances, as
in the case of statutes, those in pari materia should be consulted together, in order to
arrive at the meaning of one.”). The County points to section 6.1 of the Zoning
Ordinance as the basis of the Administrator’s authority to request a site plan. We find
that it is also germane to our interpretation of sections 6.2 and 6.32.
(a) Section 6.1 provides:
All structures, land uses, land use changes, structural alterations,
structural relocations, structural additions, and structural enlargements
that are constructed, created, established, or otherwise occur after the
effective date of this ordinance (except as may otherwise be provided
within this ordinance) shall be subject to all Development Standards and
regulations for the applicable zoning district.
This section expressly includes “land uses” and “land use changes” within the scope
of Article 6. Therefore, Article 6 applies to New Image’s business application –
regardless of whether the features of the property are physically altered- because New
Image proposed a change in the use of the property.
In light of the broad scope set forth in section 6.1, we conclude that the
superior court’s interpretation of the term “altered” in Section 6.2 is too narrow. See
SDS Real Prop. Holdings, Ltd., 341 Ga. App. at 866 (1) (“All parts of an ordinance
relating to the same subject matter must be harmonized to reconcile conflicts, and any
9
section of an ordinance must be construed in relation to the whole ordinance of which
it is a part.”) (citations and punctuation omitted). Moreover, under section 6.32,
certain parking standards are dependent upon the intensity of a property’s use, e.g.,
a factory is subject to a different parking space ratio than a salvage, storage, or junk
facility. Therefore, we must read section 6.2 to include alterations in the use of a
property; a narrower interpretation is patently unreasonable. And, although zoning
ordinances, as well as any ambiguities therein, are to be strictly construed in favor of
the property owner, they “nevertheless must be given a reasonable construction.”
(Citation omitted.) Bo Fancy Productions, Inc. v. Rabun County Bd. of Commrs., 267
Ga. 341, 343 (1) (b) (478 SE2d 373) (1996). Viewing sections 6.2 and 6.32 in
harmony with section 6.1, we find that the term “altered” in section 6.2 includes
changes in land use unaccompanied by physical alterations to the site.
Here, there was evidence that New Image’s proposed use varied from that of
the former lessee. See Jackson County, 280 Ga. at 391 (under the appropriate
standard of review, “we consider whether there is any evidence supporting the
decision of the local governing body.”) (citation omitted). As recognized by one of
the BZA members, and testified to by the Planning and Zoning Division consultant
at the BZA hearing, there is a significant difference in intensity of use between the
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former fencing company’s “laying wire” and New Image’s proposed use involving
“laying down any number of vehicles.” Therefore, the BZA correctly found that New
Image was altering the site and was thus required to comply with sections 6.2 and
6.32. The superior court erred in reversing the BZA’s decision.
(b) Turning to the site plan, the County argues that the Administrator’s
authority to request one stems from section 6.1, as a means to gauge an applicant’s
compliance with Article 6 Although there is no specific reference to site plans in
section 6.1 or 6.2, other sections of Article 6 contemplate the submission of one.
Notably, pursuant to the section pertaining to parking standards, the Administrator
may defer some parking requirements if she determines that the parking standards for
a proposed use are excessive and if the applicant’s site plan allocates space for future
parking improvements. Clayton County Zoning Ordinance § 6.32, PK-03 (Q).
At the BZA hearing, the Administrator testified that a site plan is required
during the application process so that the TRC can make informed zoning decisions
and consider potential environmental and safety impacts of the proposed use. The
consultant testified that, without a site plan, the County planners and the
Administrator “have nothing to go by” and cannot make determinations regarding
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essential criteria, such as the arrangement of the vehicles on the property or their
ingress and egress.
New Image contends that the Administrator’s authority to require a site plan
during the business application process is arbitrary because there are no express
guidelines set forth in the Ordinance governing her discretion to do so. In support of
this argument, New Image cites to Arras v. Herrin, 255 Ga. 11 (334 SE2d 677)
(1985). We are not persuaded.
In Arras, a convenience store owner brought a constitutional challenge against
a county ordinance where he was denied a license to sell alcoholic beverages despite
satisfying the technicalities of the applicable county ordinance. The ordinance at issue
gave the local governing body unfettered discretion in determining both the fitness
of an applicant to operate such a business and whether the business “is proper and to
the best welfare and in the best interests of” the county. Id., 255 Ga. at 12. The
Supreme Court of Georgia found that the applicant was denied due process because
this language was impermissibly vague and afforded no control over the governing
body’s discretion. Id.
First, we note that the posture here is somewhat different from that in Arras
because New Image has not yet completed the application process, which stalled upon
12
its unexplained refusal to submit a site plan; thus, there is no deprivation of a
constitutional right at issue here, as in Arras. Moreover, the development standards
that guide the business license application process are set forth in Article 6, and those
include the submission of site plans. Finally, apart from selective language taken from
the BZA hearing minutes,3 New Image points to no evidence that would show that the
requirement for the site plan was arbitrary in this instance. To the contrary, as
discussed above, the Administrator explained that a site plan was necessary to
determine whether New Image’s proposed use was in compliance with sections 6.2
and 6.32. This explanation is entirely reasonable, especially in the absence of any
evidence of harm New Image would suffer due to the requirement for the site plan.
Cf. Frazier v. Deen, 221 Ga. App. 153, 154 (470 SE2d 914) (1996) (waiver of garage
3
In an attempt to show arbitrariness, New Image points to a phrase in the
Administrator’s statement at the commencement of the hearing: “we require site plans
in certain instances and this is one of those instances . . .” However, prior to this
comment, the Administrator explained that the reason a site plan may be required is
to facilitate her department’s task of determining whether a property is permitted
under the zoning classifications. Furthermore, in explaining the procedures for the
pre-application meeting with the TRC, the Administrator later stated that they would
typically request a site plan as part of that process. And, as discussed above, the
Administrator adequately justified her rationale for requiring a site plan under these
circumstances throughout the hearing.
13
placement covenant not arbitrary and capricious where there was no evidence of harm
to plaintiffs).
Viewing Article 6 as a whole, and considering the record below in its entirety,
the Administrator did not abuse her discretion in requiring New Image to submit a
site plan during the business license application process, nor did the BZA abuse its
discretion in upholding that decision. See City of Atlanta Bd. of Zoning Adjustment,
257 Ga. at 499 (4). Accordingly, the superior court erred in its holding that the site
plan was not required.
Because we find that the superior court misconstrued the applicable sections
of the Zoning Ordinance, we reverse the superior court’s decision.
2. Based on our ruling in Division 1, we need not address the County’s
remaining enumeration of error.
Judgment reversed. Doyle, P. J., concurs. Coomer, J., dissents.
*THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF
APPEALS RULE 33.2
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A19A0298. CLAYTON COUNTY, GEORGIA v. NEW IMAGE
TOWING AND RECOVERY, INC.
COOMER, Judge, dissenting.
Because the majority’s interpretation of the applicable zoning ordinances
expands the ordinances’ plain and ordinary meaning, I find it necessary to dissent.
“Zoning ordinances must be strictly construed in favor of the property owner and
never extended beyond their plain and explicit terms.” Northside Corp. v. City of
Atlanta, 275 Ga. App. 30, 32 (2) (619 SE2d 691) (2005) (footnote omitted). “Where
the language of the ordinance is plain and unambiguous, and does not lead to
contradictory, absurd, or wholly impracticable results, it is the sole evidence of
legislative intent and must be construed according to its terms.” Id. (footnote and
punctuation omitted). It is well established that “[s]ince statutes and ordinances
which restrict an owner’s right to freely use his property for any lawful purpose are
in derogation of the common law, . . . ambiguities in the language of zoning
ordinances should be resolved in favor of the free use of property, . . . and any
ambiguity or uncertainty in a land regulation ordinance must be construed in favor
of the free use of the land.” DeKalb County v. Post Apartment Homes, L.P., 234 Ga.
App. 409, 410 (1) (506 SE2d 899) (1998) (citations and punctuation omitted).
Here, Article 6, Sections 6.1 and 6.2 of the Clayton County Zoning Ordinance
states, in pertinent part that:
Sec. 6.1 - Introduction. All structures, land uses, land use changes,
structural alterations, structural relocations, structural additions, and
structural enlargements that are constructed, created, established, or
otherwise occur after the effective date of this ordinance . . . shall be
subject to all Development Standards and regulations for the applicable
zoning district.
Sec. 6.2 - Expansion or Modification of Existing Uses and Structures.
No structure, parking area, or other site feature regulated by this
ordinance shall be enlarged, altered, or expanded, unless the minimum
improvements required by this Article are provided to the property to the
extent of its alteration or expansion. In the case of a substantial
expansion, the portion of the site affected must meet the requirements
of this Article. An alteration or expansion to an existing property is
substantial when the area or square footage of the expanded or altered
land (including property used for building space, parking, or storage) or
structure, respectively, exceeds twenty (25) [sic] percent of the area or
2
square footage of the existing land or structure, exclusive of the
alteration or expansion.
In its interpretation of these ordinances, the majority focuses on the meaning
and application of the term “altered” in section 6.2 to reach its conclusion that the
term “altered” “includes changes in land use unaccompanied by physical alterations
to the site.” However, the term that is most ambiguous and unaddressed in the
majority opinion is “other site feature.” A plain and ordinary reading of section 6.2
shows that certain minimum improvements required by the article must be performed
when a “structure, parking area, or other site feature” will be “altered.” Apparently,
the majority has assumed the term “other site feature” includes all terms recited in the
section 6.1,“Introduction.”
To read section 6.2, as the majority infers, to include “land uses” and “land use
changes” in the definition of “other site feature” is to impermissibly expand the
ordinance beyond its explicit terms. The majority cites section 6.1’s use of the terms
“land use” and “land use changes,” which are included in the list of occurrences that
are subject to the ordinance’s requirements, to conclude that changes in the
Appellee’s use of its land require it to satisfy the strictures of section 6.2. This
3
conclusion is contrary to the record and is not supported by ordinary principles of
construction nor the common law.
Construction of an ordinance is a question of law, subject to the
canons of statutory construction, and it is the court’s duty to determine
and put into effect the intention of the lawmakers. In construing a
legislative act, a court must first look to the literal meaning of the act. If
the language is plain and does not lead to any absurd or impracticable
consequences, the court simply construes it according to its terms and
conducts no further inquiry. Further, statutes are to be construed in
accordance with their real intent and meaning and not so strictly as to
defeat their legislative purpose, and statutory construction must square
with common sense and sound reasoning. These rules apply to the
interpretation of city ordinances as well as statutes.
City of Atlanta v. Miller, 256 Ga. App. 819, 820 (1) (569 SE2d 907) (2002) (citations
and punctuation omitted).
Section 6.1 does not provide definitions for the terms in section 6.2 and does
not support the conclusion of the majority. Reading the sections in the context of the
entire article of the ordinance, section 6.1 is tantamount to a jurisdictional statement.
It sets out all the possible occurrences that are or may be subject to the substantive
portions of the ordinance. Section 6.2 must operate within the jurisdictional limits
established by section 6.1, but it does not necessarily apply to every possible
4
occurrence listed in section 6.1. Section 6.2 only applies to the alteration of any
“structure, parking area, or other site feature regulated by” the ordinance. The
alteration in issue before the Court is not an alteration to a structure or parking area
and, therefore, can only be subject to section 6.2 if it is an alteration to an “other site
feature.” The term is not defined anywhere in the ordinance that is before the Court.
Reading the ordinance as a whole, the drafters intended section 6.2 to apply to
physical alterations to structures or features of the land – changes to land uses were
not contemplated by the ordinance. The second and third sentences of section 6.2
indicate it applies to an “alteration or expansion” that is physical, tangible, and
quantifiable and that expands or alters either “land...or [a] structure.” In this context,
the majority’s conclusion that section 6.2 is unambiguous in its application to a
change in land uses cannot be supported.
Turning to the issue of whether the site plan was required under the ordinance,
the majority correctly states that there is no specific requirement for site plans in
section 6.1 or 6.2 of the ordinance. It concludes that other sections of the article
contemplate the submission of one,1 and relies on the testimony of the Administrator
1
The majority cites to five other sections within article 6 of the ordinance that
contemplate the submission of a site plan. Section 6.29 requires site plans be
submitted and approved prior to the expansion or development of mobile home parks.
5
who stated that in certain instances a site plan is required during the business licenses
application process. However, the majority should not infer requirements that are not
expressly stated in the applicable ordinance. Otherwise, the purpose of written
ordinances that have been debated in public and approved by an elected body become
irrelevant, or worse, become tools of personal interpretation by individual
bureaucrats. Our Court has held that the “testimony by county officers cannot change
the plain meaning of an unambiguous ordinance[, and] neither should [a] county be
allowed to extend the plain, objective intent of [an ordinance’s terms] by testimony
that county officers subjectively meant for it to attach to more than what [the
ordinance] plainly stated.” Post Apartment Homes, L.P., 234 Ga. App. at 411 (1)
(citations and punctuation omitted). Here, the county suspended the business license
application process because New Image did not submit a site plan which, under the
applicable ordinance, it was not required to do. Contrary to the majority’s conclusion
Section 6.30 requires site plans before building six foot walls or privacy fences.
Section 6.34 requires site plans for landscaping, but only if the building around which
the landscaping will be planted required a site plan. Section 6.36 applies to lighting,
but only where a work permit to install lighting has been applied for. Section 6.32
requires a site plan when an applicant seeks variance from county parking standards
during construction of a parking lot. Each of these sections has specific, unambiguous
requirements for when site plans must be provided. None of these provisions applies
to Appellee’s request for a business license.
6
that New Image failed to show that the county’s requirement for the site plan was
arbitrary in this instance, neither the majority’s opinion nor the record reveals any
ordinance that required such a submission by New Image.2
Accordingly, I would affirm the trial court and must respectfully dissent.
2
The facts of this case fit squarely within the guidance provided by our
Supreme Court in Arras v. Herrin, 255 Ga. 11 (334 SE2d 677) (1985). The majority
seeks to distinguish Arras on the ground that the Appellant has not denied Appellee’s
business license and, consequently, has not deprived Appellee of a constitutional
right. This distinction is not persuasive. In the present case, Appellant “suspended”
Appellee’s application process until such time as Appellee would submit a site plan.
The process was “suspended” by the Administrator in October 2016 and confirmed
by the BZA in May 2017. The Appellee has not reinstated the process, nor has it
taken action to deny Appellee’s application, which has the same result as denying the
application. Because New Image has complied with all necessary requirements for
obtaining a business license and is not required to submit a site plan in this instance,
the county must issue the business license applied for. See Mayor & Aldermen of
City of Savannah v. TWA, Inc., 233 Ga. 885, 886 (214 SE2d 370) (1975) (where
applicants for business license had complied with all the requirements necessary for
obtaining business licenses, municipality was required to issue the licenses).
7