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May v. Morgan County, Georgia

United States Court of Appeals, Eleventh Circuit

December 21, 2017

CHRISTINE B. MAY, Plaintiff-Counter Defendant-Appellant,
v.
MORGAN COUNTY, GEORGIA, Defendant-Counter Claimant-Appellee.

         Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 3:15-cv-00052-CAR

          Before ED CARNES, Chief Judge, HULL, and MARCUS, Circuit Judges.

          PER CURIAM.

         Christine May filed this lawsuit against Morgan County, Georgia, seeking relief from a 2010 zoning ordinance that prohibited short term rentals of single family dwellings. The district court dismissed some of May's claims, concluding that they were barred by the Rooker-Feldman doctrine. It granted summary judgment on her remaining claim, concluding that it was barred by issue preclusion. The district court likewise denied May's motion for partial summary judgment, which contended that her right to use her vacation home for short term rentals was a constitutionally protected "grandfathered" use. This is May's appeal.

         I.

         A. THE PROPERTY AND UNDERLYING ZONING DISPUTE

         This saga began when May purchased a parcel of lakefront property in Morgan County intending to build a vacation home. She planned to use the house for short term vacation rentals in order to allay the cost of its construction. May started renting it out in 2008.

         At the time, the County's zoning ordinances applicable to May's property allowed only those uses that the ordinances listed as "permitted" or "conditional." Short term rentals of single family dwellings were not listed as either a "permitted" or a "conditional" use.

         In 2010, the Morgan County Board of Commissioners adopted Regulation 15.35, which explicitly bans rentals of single family dwellings for less than thirty consecutive days in the zoning district for May's property.[1] Because May continued to rent her property on a short term basis, in August 2011 she was given a criminal citation for violating Regulation 15.35.

         B. THE FIRST CIVIL CASE

         In April 2012 May filed a lawsuit under 42 U.S.C. § 1983 against the County in Georgia state court. She contended that she had a "grandfathered" right under the County's zoning ordinances to continue offering short term rentals on the property, and she sought an injunction and declaratory judgment on that basis. She also argued that application of Regulation 15.35 to her property was unconstitutional under the due process and equal protection clauses of the United States and Georgia constitutions, and the privileges and immunities clause of the Fourteenth Amendment.

         The state trial court found that May's use of her property was grandfathered, but the Georgia Court of Appeals vacated that judgment and remanded the case for a ruling on two threshold arguments raised by the County: first, whether May's action was barred for failing to exhaust her administrative remedies by not seeking a rezoning and conditional use permit from the County before filing suit, and second, whether Georgia Code § 5-3-20(a) barred May's claims because she failed to challenge the adoption of Regulation 15.35 (facially or as applied to her property) within 30 days of its passage.[2]

         The state trial court concluded that May's action was barred for both reasons and dismissed all of May's claims against the County. May appealed to the Georgia Court of Appeals, which denied her application for a discretionary appeal, and ...


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