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Practice Pointer for Local Government Lawyers: In zoning Enforcements Matters, Try to Get Injunction Language in the Final Order

Posted on: August 10th, 2015

By: Coleen Hosack

Glynn County residents had to sit by and watch property owners use their ocean front beach house as a commercial event venue in violation of the Glynn County Zoning Ordinance during the pendency of an appeal because the County did not have an injunction order prohibiting the property owners from doing so.  While the County was successful in convincing the trial court that the property owners were using their property in a manner that was inconsistent with the zoning district and obtained an order saying as much, the trial court did not also enjoin them from using their property as a commercial event venue.  This case illustrates there is a fine line between declaring the rights of parties on a question of law and ordering a party to perform or refrain from performing a specified act. Burton v. Glynn County, S15A0082, Georgia Supreme Court (July 13, 2015). The automatic stay in the Georgia Appellate Practice Act applies to a declaratory judgment order; but the trial court has discretion to enforce an injunction during an appeal.

The Burtons built a lavish ocean-side home in 2008 on property zoned R-6 in Glynn County. The zoning restricted the use of the property to primarily residential use by a single family and other uses that are customarily incidental. In 2010, the Burtons began to regularly allow special events at the house, marketing and promoting the house as “Villas de Suenos” or “House of Dreams” allowing up to 100 or more guests. Following complaints by residents regarding noise, traffic, and parking issues arising from the large scale gatherings, Glynn County issued a cease and desist letter requesting the Burtons immediately discontinue the use because it violated the zoning ordinance.

The Burtons thereafter sued the County seeking declaratory and injunctive relief to stop the County’s efforts to enforce the zoning ordinance so as to prohibit the use of the property as an event venue. The County brought a counter claim requesting the opposite relief. Following an evidentiary hearing, the trial court agreed with the County and issued an order on December 20, 2013 adopting the County’s interpretation of the zoning ordinance and directing the Burtons to comply with the ordinance, so interpreted, in their future use of the property. The Burtons appealed challenging the trial court’s interpretation of the zoning ordinance.

During the pendency of the appeal, the Burtons continued to use the house for special events. The County filed a motion for contempt arguing that their use of the property in this manner was in violation of the trial court’s order; but the trial court denied the motion on the grounds that it lacked jurisdiction because the filing of the notice of appeal acted as an automatic supersedeas pursuant to O.C.G.A. § 5-6-46.  While the County argued this provision did not apply because the order was not just a declaratory judgment order; it was also an injunction order under O.C.G.A. § 9-11-62; the Georgia Supreme Court disagreed. While the order did require the Burtons to use their property consistently with the zoning ordinance, an order is not converted to an injunction merely because it directs a party to comply with the law.

The opinion affirming the trial court’s December 20, 2013 order was not decided until July 13, 2015. This means the Burtons were able to use their beach front property as a commercial venue in violation of the zoning ordinance for an additional eighteen months. Had the trial court included additional language enjoining the Burtons from doing so, the trial court would have had the authority to hold the Burtons in contempt of its injunction order during the pendency of the appeal. The result of this case is a good reminder to make sure you ask the trial court for language in the final order that not only declares the rights of the parties; but affirmatively enjoins the property owner from using the property in a manner that is in violation of the zoning ordinance. Had the trial court’s order enjoined the Burtons from using the property as a commercial event venue, they would have been prohibited from doing so during the pendency of the appeal or at the very least; the trial court would have had the discretion and the teeth to hold them in contempt if they did not comply.

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