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Must Read: Zoning Decisions May be in Danger

January 23, 2017  |  Phil Friduss
This article appeared in the January 2017 issue of the Georgia's Cities newspaper.
Phil Friduss
Hoechstetter v. Pickens County
Georgia Court of Appeals Case No. A17A0565
I guess you can blame yours truly if things go south in the Hoechstetter (Hock-stetter) case—one pertaining to a long-standing, statewide custom dealing with public notice in zoning matters. We’re going to want to stay on this as it works its way through the courts. Here’s what we have.
This odd mix of a story takes place in the stunning North Georgia Mountains, Pickens County. Beginning in the 1970s, investors here started developing one of Georgia’s premier gated mountain communities, Big Canoe. A sparkling new premier gated mountain community smack dab in the middle of centuries of North Georgia Mountain life and history, Big Canoe is home to over 3,000 residents.
Part of Big Canoe nestles against the 75-acre Tatum property. The Tatum property has two structures on it, one of them a magnificently refurbished barn nice enough to host upscale wedding receptions and other events on the weekends. And, that’s what the Tatums aimed to do, asking for a conditional use permit so as to allow them to do so. Several Big Canoe residents vociferously opposed the granting of the permit on peace and serenity grounds.
The Pickens County Planning Commission recommended, and the County Board of Commissioners approved the Conditional Use Permit, some 3 months later, and Big Canoe residents appealed.
Notice? Or Not?
Most of us know we have to put up signs and give special notice when we’re going to hold the state-required hearing for a zoning matter. Whether we call it a zoning board, a planning commission, or any other name, notice must be provided. At that stage, evidence is introduced, the public and immediately interested parties participate, and then that body generally makes recommendations to the legislative branch—city councils, boards of commissioners, etc. That body then rules on the earlier-made recommendation. Quite often the hearing occurs on a different day than the actual legislative vote.
And, there then is the rub. Most cities do the signs and special notice for step one (the hearing), but do not repeat that notice process for the later-convened formal vote on the matter. No, we usually just do Open Meetings-compliant notice for that later meeting. The decision to execute this later signs/special notice is what is up for questioning in the Hoechstetter case.
Again, this has been the custom for numerous of our cities and counties since the Zoning Procedures Law was first enacted in the 1980s. No telling what the overall effect would be if the Court of Appeals rules that second notice is required. No telling if such a ruling would be retroactive, and if so, how far back things might could go.
While the decision currently doesn’t effect most municipalities, an eventual decision made by the Georgia Court of Appeals could impact the state. “Depending on how an adverse ruling was framed, this could have dire consequences as to the legality and enforceability of many, many land use decisions throughout Georgia,” said Milton City Attorney Ken Jarrard.
I’ll stay on top of this.
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