dissenting.
The majority opinion essentially requires nothing more than that a party intone before an administrative body that an ordinance is unconstitutional in order to preserve any and all arguments that the ordinance is unconstitutional. Therefore, I must respectfully dissent.
Outdoor contends that application of the sign ordinance offends OCGA § 32-6-83.1 If true, the ordinance would violate Article III, Section VI, Paragraph IV (a) of the State Constitution. See State v. Hartrampf, 273 Ga. 522, 523-524 (544 SE2d 130) (2001), which Outdoor *609contends controls this case. But Outdoor did not make a challenge concerning OCGA § 32-6-83 or Hartrampf until its “Second Amendment to Petition for Writ of Certiorari and Complaint,” which was not filed until the County’s motion for summary judgment was pending in the superior court, well over a year after the BZA had acted. A challenge to the constitutionality of an ordinance cannot be raised for the first time in the superior court, but must be raised in the administrative proceedings below so that the appropriate body has an opportunity to “rectify the situation.” State Bd. of Equalization v. Trailer Train Co., 253 Ga. 449, 450 (320 SE2d 758) (1984). Neither Outdoor’s written appeal to the BZA, nor its statements at the BZA hearing, made any mention of any conflict between the ordinance and OCGA § 32-6-83. By not making this challenge until the case was before the superior court, Outdoor prevented the BZA from taking any action to, rectify the matter, assuming that application of the ordinance would run afoul of the statute, as application of the ordinance did in Hartrampf, supra. Therefore, this challenge was waived. State Bd. of Equalization, supra.
The majority decides that Outdoor raised a “sufficient attack” on the constitutionality of the ordinance before the BZA. But Outdoor is required to do more before the BZA than merely intone that the ordinance is unconstitutional; what the majority refers to as a “relaxed standard” is, in fact, considerably more exacting. Under Ashkouti v. City of Suwanee, 271 Ga. 154, 155-156 (516 SE2d 785) (1999), Outdoor must put the BZA on “fair notice” of the constitutional challenge, and “fair notice” is that which would put the BZA “on notice that [Outdoor was] challenging the constitutionality of the existing [ordinance], and [which] focused the [BZA]’s attention upon the factors which might have rendered the classification unconstitutional.” Merely stating that the ordinance was unconstitutional did not achieve that in regard to any challenge based on OCGA § 32-6-83. Nor was this achieved by Outdoor’s contention that application of the ordinance would constitute a taking under the Fifth Amendment to the United States Constitution by depriving Outdoor of all economically viable use of the property. See Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1019 (112 SC 2886, 120 LE2d 798) (1992). That is the only claim Outdoor made to the BZA, in writing or orally. But OCGA § 32-6-83 is concerned merely with the removal of signs. OCGA § 32-6-83 does not address whether operation of the ordinance would deprive Outdoor of all economically viable use of its property, nor does an argument of a Fifth Amendment taking involve specific questions pertaining to OCGA § 32-6-83.2 It is only the separate tak*610ing challenge that Outdoor made before the BZA.
Decided November 19, 2001 Reconsideration denied December 14, 2001. Schreeder, Wheeler & Flint, David H. Flint, Mark W. Forsling, Scott W. Peters, for appellant. Freeman, Mathis & Gray, John D. Thalhimer, Bentley, Bentley & Bentley, Fred D. Bentley, Jr., Debra H. Bernes, Coleen D. Hosack, for appellees.Further, the majority mischaracterizes this Court’s opinion in Hartrampf, supra. Hartrampf did not declare that Ordinance § 134-346 operates unconstitutionally in every instance, but ruled that the specific application at issue there did so. Id. at 523-524. For Outdoor to claim the benefit of the application of the principle addressed in Hartrampf, Outdoor must timely raise the claim that application of the ordinance in its case would violate OCGA § 32-6-83. It did not do so. It is not the County that is attempting to rely on what the majority labels an unconstitutional ordinance, but Outdoor which is attempting to rely on an argument concerning the application of that ordinance which it simply did not advance before the BZA. As the BZA was given no opportunity to address the argument, and in fact never heard of this attack on the ordinance until more than a year had passed after it acted, this Court cannot, at least by its precedents to date, countenance the untimely assertion that the ordinance conflicts with OCGA § 32-6-83 and therefore violates Article III, Section VI, Paragraph IV (a) of the State Constitution.
We should affirm the trial court on this issue and address the remaining enumerations of error.
I am authorized to state that Presiding Justice Sears and Justice Benham join in this dissent.
OCGA § 32-6-83 provides in part that
[a]ny . . . county is authorized to acquire by purchase, gift, or condemnation and to pay just compensation for any property rights in outdoor advertising signs, displays, and devices which were lawfully erected . . . [but] which at a later date fail to comply with the provisions of any lawful ordinance, regulation, or resolution due to changed conditions beyond the control of the sign owner. No . . . county shall remove or cause to be removed any such nonconforming outdoor advertising sign, display, or device without paying just compensation.
Among issues which are crucial to the question of whether OCGA § 32-6-83 may *610apply, but which are outside a takings analysis, are whether any violation of the ordinance was “beyond the control of the sign owner,” or its predecessor in title, and whether the sign was “lawfully erected.” The County contested these issues in the superior court after Outdoor raised them in its “Second Amendment to Petition for Writ of Certiorari and Complaint.” The County did not raise these issues before the BZA as they were simply not relevant to the taking question and Outdoor had not yet introduced any challenge based on OCGA § 32-6-83.