dissenting.
Because I believe the superior court was correct in concluding, as argued by the Department of Transportation, that the use of Simmons’ property for a trucking business was a nonconforming usé under the zoning ordinance, thereby restricting his recovery for condemnation of a portion of that property to fair market value based upon residential/agricultural use, I must respectfully dissent.
The primary issue in a condemnation case is “[t]he fair market value of the property or interest taken or other evidence of just and adequate compensation.” OCGA § 32-3-16. The factors to be used in making this evaluation are not restricted to the agricultural or productive qualities of the land, “but inquiry shall be made as to all other legitimate purposes to which the land could be appropriated.” (Emphasis supplied.) OCGA § 22-2-109 (a).
The relevant point of inquiry is the status of Simmons’ property in 1991 when the zoning ordinance was enacted because, if the trucking business was not grandfathered in under the nonconforming use provision, then, as a matter of law, such use could not be considered in determining “legitimate” uses of the property. See Dept. ofTransp. v. Brooks, 153 Ga. App. 386, 389 (2) (265 SE2d 610) (1980). As acknowledged by the majority, Simmons had not obtained a business license from the county at the time the zoning ordinance was enacted in 1991 and did not obtain one until 1994. In 1994, the use of his property for the business covered by the license was in violation of the zoning ordinance, and the zoning board refused to change the zoning of his property after the initiation of the condemnation proceeding.
In order to be grandfathered in under the zoning ordinance, and therefore have a compensable right in that business use, the nonconforming use must have been, “at that time, in full compliance with all applicable federal, state and local laws, rules and regulations, and *577for which use all required federal, state or local permits or authorizations were then, and continue to be, in existence.” (Emphasis supplied.)
“The term Vested rights’ means ‘ “interests which it is proper for (the) state to recognize and protect and of which (the) individual cannot be deprived arbitrarily without injustice.” (Cits.)’ Hayes v. Howell, [251 Ga. 580,] 584 (2) (b) [(308 SE2d 170) (1983)].” Recycle & Recover v. Ga. Bd. of Nat. Resources, 266 Ga. 253, 254 (2) (466 SE2d 197) (1996). To say that Simmons has a vested right in the use of his property as a trucking business solely because he had a business license (for a business which violated the zoning ordinance) for less than a year before the filing of the Declaration of Taking overlooks the many cases dealing with -the issue of government estoppel, although that appears to be the theory relied upon by the majority for its conclusion.
The issuance by the county of a business license “in violation of existing zoning or regulatory laws is considered an ultra vires act and vests no one’s rights. Corey Outdoor Advertising v. Bd. of Zoning, &c. of Atlanta, 254 Ga. 221 (3) (327 SE2d 178) (1985).” Jackson v. Delk, 257 Ga. 541, 543 (4) (a) (361 SE2d 370) (1987). See Plaza Liquor Store v. City of Atlanta, 220 Ga. 615, 618 (2) (140 SE2d 868) (1965). The public may not be estopped by acts of an officer done in the exercise of an unconferred power. City of Atlanta v. Black, 265 Ga. 425, 426 (457 SE2d 551) (1995).
This situation is factually similar to City of Hampton v. Briscoe, 207 Ga. App. 501 (428 SE2d 411) (1993). There, Briscoe sought inverse condemnation against the city contending that, because he was issued a license for an auction business although that business was in violation of applicable zoning, he had been denied just compensation for the loss of the business. We concluded that Briscoe could not recover if he had no “vested right” in the first place.
While a building permit may create a vested right in the existing zoning ordinances, “ ‘a business license is typically not a device for ensuring compliance with zoning ordinances. “Although the general aim of both zoning and licensing regulations is the promotion of the general welfare, each is independent of the other and seeks to accomplish its purpose by a different means. The fact that a zoning ordinance permits a use in a particular district does not authorize the use there without a license. On the other hand, a license or permit does not authorize a use in violation of zoning laws. In other words, a license or permit does not relieve one from complying with a zoning ordinance. . . .” ’ ” Id. at 503.
Further, to say, as does the majority, that the DOT lacks “standing” to argue the validity of the zoning action overlooks the obvious. First, the DOT is not attempting to contest zoning action, as in *578Sneakers of Cobb County v. Cobb County, 265 Ga. 410 (2) (455 SE2d 834) (1995), where the property owner had been dispossessed of the property and therefore had no standing to contest the zoning. Second, the sole issue here is the worth of the property or vested right therein, to which zoning is relevant and admissible.
Decided March 18,1997 David C. Jones, Jr., for appellant. Michael J. Bowers, Attorney General, McClure, Ramsay & Dickerson, Luther H. Beck, Jr., for appellee.Therefore, I would affirm the trial court’s judgment since Simmons could show no valid nonconforming use to entitle him to compensation for his improperly operated business.