Cohn Communities, Inc. v. Clayton County

Gregory, Justice.

In 1970 National Homes Development proposed to develop a mixed-use tract in Clayton County, including commercial, multi-family, single family and mobile home uses. By August 10, 1970, zoning had been approved, as applied for, for all four contiguous parcels on the 700 acres.1 National Homes initially began development of the single family residential parcel and built over 200 residences. It sold the mobile home tract in 1983.2 National Homes sold the remaining undeveloped parcels to appellant in September 1985. This included 50 acres zoned multi-family; 19 acres zoned commercial; and 305 acres zoned single-family. Prior to the sale the appellant obtained a letter from the county planner stating that the multi-family parcel at issue in this appeal “is presently zoned R-3 Multi-Family Residence District according to the current Clayton County Zoning Resolution text and map.” The appellant says but for this “assurance” from the county planner, it would not have purchased the property since its intention was to use the proceeds from the sale of the commercial and multi-family parcels to finance its development of the single-family parcel.3 Subsequently homeowners in the single-family development built by National Homes petitioned the Clayton County Commission to rezone the multi-family parcel to single-family residential. In April 1986, the Commission on its own motion filed an application to rezone *358the property. Cohn obtained a TRO to prevent the Commission from acting on the rezoning proposal. It then filed this action for injunctive and mandamus relief. No action has been taken on the proposed rezoning.

The trial court entered judgment in favor of the County, finding that the letter from the county planner was not an “assurance” which would confer a vested right on the appellant. The trial court further found that the $600 appellant has expended on developing the multifamily parcel since the time of purchase is not a substantial sum such as would confer vested rights on appellant within the meaning of Cannon v. Clayton County, 255 Ga., supra.

1. The primary issue before us is whether Cohn has any vested rights in the multi-family zoning in question. It is undisputed that Cohn’s predecessor, National Homes, spent in excess of $700,000 installing sewer systems and water treatment plants for the entire tract. It is also undisputed that while the appellant has spent nearly $900,000 in developing the single-family parcel, it has spent no more than $600 in grading and developing the multi-family parcel.

The rule in Georgia is that where a landowner makes a substantial change in position by expenditures in reliance upon the probability of the issuance of a building permit, based upon an existing zoning ordinance and the assurances of zoning officials, he acquires vested rights and is entitled to have the permit issued despite a change in the zoning ordinance which would otherwise preclude the issuance of a permit. Barker v. County of Forsyth, 248 Ga. 73 (281 SE2d 549) (1981); Cannon v. Clayton County, 255 Ga. 63, supra; WMM Properties v. Cobb County, 255 Ga. 436 (339 SE2d 252) (1986). This rule is derived from the principle of equitable estoppel in that the landowner, relying in good faith upon some act or omission of the government, has made a substantial change in position or incurred such extensive obligation and expenses that it would be highly inequitable and unjust to destroy the rights he has acquired. 4 Rathkopf, The Law of Zoning and Planning, § 50.04; Town of Largo v. Imperial Homes, Corp., 309 S2d 571 (Fla.2d DCA 1975). “Courts which have adopted [this] view have taken the realistic position that the expenses involved would not ordinarily have been incurred if a landowner had not reasonably assumed that after all the pre-permit approvals were secured so that the property was both zoned and approved for the contemplated use and structures, the building permits required to effectuate it, in all reasonable probability, would issue.” 4 Rathkopf, The Law of Zoning and Planning, § 50.03 at 50-23. The Georgia cases cited have applied the rule to situations where the landowner, relying in good faith on official assurances that a building permit will probably issue to develop the property in question as it is currently zoned, makes a substantial change in his position by the expenditure of sub*359stantial sums of money.

Appellant relies on a letter from the county planner stating the present zoning of the tract in question. This is not the kind of assurance required in the creation of vested rights under Barker, supra. It lacks the quality of promise necessary to an estoppel. There is no notice to the zoning official that the landowner is about to expend substantial sums in reliance on information received. Nor is there any assurance that necessary permits will probably issue. It is no more than a neutral statement of the present zoning in effect, a fact the landowner could easily obtain himself by consulting the proper records. Further, the sum of $600, under the circumstances, is not a substantial expenditure sufficient to vest rights.

Appellant maintains that we should consider the $700,000 National Homes spent in developing the entire tract in determining whether appellant has expended a “substantial sum” in reliance on the multi-family zoning. This argument overlooks the fact that the landowner must make a substantial change in position in reliance on the official assurances that a building permit will probably issue. Barker v. County of Forsyth, supra.

Even if we were to hold that the letter in question was an “official assurance” which, coupled with substantial expenditures would vest zoning rights in the appellant, the “substantial sums” expended by National Homes were not made in reliance on this letter.

2. Appellant contends that Section 125 of the Clayton County zoning ordinance is violative of due process because it provides that the “governing authority of the county . . . may file an application for rezoning if deemed to be in the best interest of the county without actual written notice to the individual property owner.”

The appellant is correct in stating that due process requires that a landowner be given notice and a right to be heard before a governing authority may rezone the landowner’s property. Bell v. Studdard, 220 Ga. 756 (141 SE2d 536) (1965). However, as the trial court found, the challenged section of the Clayton County zoning ordinance applies only to the filing of an application to rezone property. Section 122 of the zoning ordinance provides that “a public hearing shall be held by the Board of County Commissioners before adoption of any proposed amendment [to rezone] and at least fifteen days notice of the time and place of the hearing shall be published in a newspaper of general circulation in Clayton County.” Thus the required due process is afforded. See Wilson v. City of Snellville, 256 Ga. 734 (352 SE2d 759) (1987).

3. We agree with appellant that since no action has been taken on the application to rezone appellant’s property, the trial court acted prematurely in applying the standards of Guhl v. Holcomb Bridge Rd. Corp., 238 Ga. 322 (232 SE2d 830) (1977), to the facts of this case. *360The trial court was correct, however, in its determination that appellant is not entitled to an injunction on any of the grounds alleged.

Judgment affirmed.

All the Justices concur, except Smith, J., who dissents.

At this time the Clayton County Zoning Ordinance contained no provision for a planned unit development.

Cannon v. Clayton County, 255 Ga. 63 (335 SE2d 294) (1985), arose out of the county’s refusal to issue building permits to the purchaser of the mobile home tract.

The appellant has closed in escrow on the sale of the multi-family parcel pending outcome of this litigation.