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May v. Morgan County

Court of Appeals of Georgia, Fourth Division

October 20, 2017

MAY
v.
MORGAN COUNTY.

          DILLARD, C. J., RAY, P. J., and SELF, J.

          Dillard, Chief Judge.

         In 2011, Morgan County issued a criminal citation to Christine May, alleging that she offered her Lake Oconee vacation home for short-term rentals in violation of a 2010 amendment to its zoning ordinances. The criminal prosecution was stayed for several years while May litigated a civil action against the County regarding the ordinance. But in June 2015, May filed a motion to dismiss the citation, arguing that the use of her lake home as a short-term rental property was permissible under the prior zoning ordinance and, therefore, a "grandfathered" use and, alternatively, that the prior ordinance was unconstitutionally vague. Following a bench trial, the Superior Court of Morgan County denied May's motion to dismiss and found her guilty of violating the current zoning ordinance as charged in the citation. On appeal, May contends that the trial court erred in finding that the pre-amendment zoning ordinance prohibited the short-term rental of her vacation home, and, alternatively, that this same ordinance was unconstitutionally vague. May further contends that the trial court erred by denying her right to a trial, finding that the evidence was sufficient to support her conviction, and admitting hearsay during the sentencing hearing. For the reasons set forth infra, we agree that the prior zoning ordinance prohibited May from using her property for short-term rentals. Nevertheless, because the trial court has yet to address May's alternative argument that the prior zoning ordinance is unconstitutionally vague, we vacate its judgment and remand for further proceedings consistent with this opinion.

         Construing the evidence to uphold the trial court's findings and judgment, [1] the record shows that in 2007, Christine May built a vacation home on Lake Oconee in Morgan County, Georgia, and, shortly thereafter, she began renting the home for short-term vacations. May's home was (and is) located in the "Lakeshore Low Density Residential Recreation" zoning district. At that time, the County's applicable zoning ordinance did not explicitly allow vacation rentals and, in fact, prohibited all uses not specifically allowed.[2] Thus, in July 2009, the County demanded that May and a few other homeowners cease offering their homes for short-term rentals. But despite the County's demand, May continued renting her property for short-term rentals.

         In 2010, the County began considering more detailed regulations of short-term home rentals under its zoning ordinances. And on October 5, 2010, the County amended its zoning ordinances to explicitly prohibit all rentals of single-family dwelling units for less than 30 consecutive days in all zoning districts, except for those districts where such rentals were permitted by conditional use. On December 7, 2010, the County designated the zoning districts in which short-term rentals would be conditionally permitted, but the district where May's lake home was located was not included in this designation. Nevertheless, despite being aware of the new zoning ordinance, May did not challenge it and continued renting her home on a short-term basis.

         Subsequently, in June 2011, the County issued a warning to May for continuing to rent her lake house on a short-term basis. And then, on August 11, 2011, after determining that she was still offering her home for short-term rentals, the County issued a citation to May for violating the new zoning ordinance. But in April 2012, May filed a civil lawsuit against the County, and the criminal prosecution was stayed. Specifically, May sought an injunction to restrain the County from applying the 2010 zoning ordinance to her property and a declaratory judgment that the use of her property as a short-term rental home was permitted under the pre-2010 zoning ordinance, making such use grandfathered, and that the 2010 ordinance was unconstitutional.

         On September 10, 2012, a bench trial was held on May's civil complaint, and at its conclusion, the court ruled that May's use of her lake home for short-term rentals was grandfathered and, therefore, the explicit prohibition of such rentals under the 2010 zoning ordinance did not apply to her property. But the court did not grant any of May's other requests for relief, and consequently, both parties appealed. This Court vacated the trial court's judgment and remanded the case with direction that the trial court address the threshold issues of whether May's complaint was barred because she had failed to exhaust her administrative remedies for challenging the zoning ordinance and because she had failed to challenge the ordinance within 30 days of its enactment. On remand, the trial court ruled against May on both threshold issues, and her attempt to appeal that decision to this Court, and later to the Supreme Court of Georgia, was denied.

         Thereafter, on June 3, 2015, May filed a motion to dismiss the criminal prosecution, arguing once again that the use of her property as a short-term rental home was permitted under the pre-2010 zoning ordinance, and thus, such use was grandfathered and, alternatively, that the pre-2010 zoning ordinance was unconstitutionally vague and, thus, void. The County filed a response, and on that same day, the case proceeded to a bench trial, in which both parties stipulated to the majority of the facts and focused, instead, on the legal arguments at issue. At the conclusion of the trial, the court took the matter under advisement. Subsequently, the trial court denied May's motion to dismiss, and on March 23, 2016, the court found May guilty beyond a reasonable doubt of violating the County's 2010 zoning ordinance. This appeal follows.[3]

         1. May first contends that the trial court erred in finding that the pre-2010 zoning ordinance prohibited the short-term rental of her vacation home, and thus, that the use of her property for rental purposes was not grandfathered even after the enactment of the 2010 amendment to the ordinance. We disagree.

         It is, of course, well established that a nonconforming but

protected use is ordinarily defined as a use which lawfully existed prior to the enactment of a zoning ordinance, or of an amendment to a theretofore existing zoning ordinance, and which therefore may be maintained after the effective date of the ordinance or amendment although it does not comply with the zoning restrictions applicable to the area.[4]

         And in order to establish a grandfathered, nonconforming use, it is necessary to show that "the land was used for the nonconforming purpose prior to the enactment [or amendment] of the zoning ordinance."[5] Here, as previously noted, May contends that the use of her lake home for short-term vacation rentals was a grandfathered nonconforming use because she had been renting the home since 2007 and such use was not prohibited by the pre-2010 zoning ordinance. Accordingly, we turn now to a textual review of that ordinance and its meaning.

         In this regard, the principles that guide our consideration of the meaning of statutes are well established, [6] and "we apply those same principles when we consider the meaning of an ordinance."[7] Consequently, we look first to "the text of the ordinance, and if the text is clear and unambiguous, we look no further, attributing to the ordinance its plain meaning."[8] And as we look to the words of the ordinance, we "attribute to those words their ordinary, logical, and common meanings, unless a clear indication of some other meaning appears."[9] Furthermore, we read the ordinance "as a whole according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending its operation."[10] And finally, statutes or ordinances which "restrict an owner's right to freely use his property for any lawful purpose are in derogation of the common law; therefore, they must be strictly construed and never extended beyond their plain and explicit terms."[11]

         Turning to the pre-2010 ordinance at issue, Article 11, Chapter 11.1 of the Morgan County zoning ordinances pertains to the zoning district where May's home is located.[12] Section 11.1.1 of that chapter, titled "Purpose and Intent, " provides: "The purpose of the LR-1 District is to encourage the development of low density, single family residential neighborhoods, and certain uses allied to or customarily incidental to traditional residential developments while stressing the preservation of the natural beauty of the lakeshore line and surrounding land." In addition, Section 11.1.2, titled "Permitted and Conditional Uses" provides: "Permitted and conditional uses shall be provided in Table 11.1 'Permitted and Conditional Uses by Lakeshore District Zoning District.' Uses that are neither permitted nor conditional are not allowed, and uses not specifically ...


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