Georgia Supreme Court Hoechstetter v. Pickens County Decision Poses Zoning Process Challenges for Georgia Local Governments
David C. Kirk, FAICP
Under Georgia’s Zoning Procedures Law (the “ZPL”), “a local government taking action resulting in a zoning decision shall provide for a hearing on the proposed action.” Additionally, the local government must provide adequate notice of such hearing through a newspaper notice and, when rezoning a property, a sign or signs posted on the subject property. Such notices must be in place no more than 45 days and no less than 15 days prior to the hearing. There has been debate among practitioners regarding whether a single hearing before a subordinate advisory body, such as a Planning Commission, satisfies the ZPL’s notice-and-hearing requirement or whether the ZPL requires a hearing before the final decision-maker, such as a City Council or Board of Commissioners. On June 4, 2018, the Georgia Supreme Court issued its opinion in Hoechstetter et al. v. Pickens County et al. that partially clarified what local governments choosing to hold a single hearing before a subordinate advisory body must do to ensure compliance with the ZPL. However, this decision left additional issues unresolved, creating uncertainty for local governments in Georgia seeking to assure meaningful public input into zoning decisions.
According to the record in the case, in August 2015, Doug and Lynda Tatum applied for a conditional use permit to use their 75-acre property in Pickens County for special events, such as weddings. Following adequate notice, in October 2015, the Pickens County Planning Commission held a public hearing on the permit application at which several neighbors voiced numerous concerns and objections. At that same meeting, the Planning Commission recommended the Board of Commissioners grant the permit. Three months later, in January 2016, the Board of Commissioners approved the permit application. The Board of Commissioners meeting did not include a public hearing, and the only public notice provided was a notice in the county’s legal paper that appeared the same day as the Board meeting. The plaintiffs, who are neighbors of the Tatum property, appealed the decision of the Board of Commissioners, claiming the Board failed to provide sufficient notice of its meeting on January 21 as required by the ZPL and that, as a result, the neighbors were denied a meaningful opportunity to be heard. The Superior Court of Pickens County found the notice was sufficient because the Planning Commission hearing and Board of Commissioners meeting took place during the “continuous course of a zoning matter,” and thus required only a single hearing to meet the ZPL’s minimum requirements. The Court of Appeals affirmed the decision of the Superior Court. The Court of Appeals held simply that “notice was not required at every stage of the process…[and]…a hearing is required at only one point….” The Georgia Supreme Court issued a writ of certiorari and in its June 4, 2018 opinion, reversed the decision of the Court of Appeals.
Georgia Supreme Court Decision
In the opening paragraph of the unanimous opinion, the Supreme Court notes the ZPL requires a county or municipality to “afford affected landowners and other interested citizens an opportunity to be heard” in a zoning decision. This procedural requirement formed the basis for the Court’s reversal. Although the Court agreed with the Board of Commissioners’ contention that the “statute requires one hearing during the continuous course of a zoning matter before the local government,” it reiterated that “the whole point of the statutory notice-and-hearing requirements is to afford interested citizens a meaningful opportunity to be heard….” The Court further noted that if a hearing “is too attenuated in time or circumstance from the final zoning decision, another hearing may be required.”
The Court then focused on what it saw as the inadequacy of the record of the hearing before the Planning Commission, noting the one-page memorandum given to the Board of Commissioners by the Planning Commission failed to “inform the Board in a meaningful way of what happened at the hearing.” The record only disclosed “that the Planning Commission had heard testimony from the applicant and considerable objections from the surrounding neighborhood in attendance.” The neighbors’ specific objections, which were made during the Planning Commission hearing, were not “transmitted to the Board.” Therefore, the Court concluded they did not have a meaningful opportunity to be heard by the Board. The Court clarified in a footnote that if there is only one hearing before the subordinate advisory body, “a record more fulsome than the one in this case” must be transmitted to the final decision-maker, although it does not have to be “a contemporaneous and verbatim transcript of the hearing.”
Thoughts for Practitioners
Any Georgia jurisdiction exercising zoning powers should review its notice-and-hearing process in light of the Hoechstetter decision and, if necessary, modify such process to ensure compliance with these newly-articulated requirements. By failing to act, local governments risk the distinct possibility of having their zoning decisions challenged and nullified.
There are at least three options local governments may take moving forward from this opinion that seem consistent with the ZPL’s requirements. These options, and any others, should be discussed with a city or county attorney. First, for local governments that now hold only one public hearing before an advisory body, such as a Planning Commission, prior to the governing body’s zoning decision, it is clear a “fulsome” record of such public hearing must now be prepared and provided to the final decision-maker. What is not clear is what qualifies as a “fulsome” record. In the Court’s view, the record provided to the Pickens County Board of Commissioners was not sufficient, but at the same time, the Court stated “a contemporaneous and verbatim transcript” is not required. While the Court said it was not necessary to provide such a transcript, doing so would adequately describe the testimony, support, and objections expressed by the public. Local governments may be able to provide less than a complete transcript but should do so only after consulting their city or county attorney. The time between the public hearing and final decision also should be considered, so as to not run afoul of the Court’s concern about hearings being “too attenuated in time or circumstance from the final zoning decision.” Second, the local government could conduct two public hearings, one before the subordinate advisory body and another before the final decision-maker. In that way, citizen concerns, support, and objections could be given directly to the members of City Council or Board of Commissioners, avoiding the pitfalls of a record that may be less than “fulsome.” Finally, local governments could dispense altogether with the public hearing before the subordinate advisory body and hold a single public hearing before the final decision-makers, similarly assuring citizens’ concerns are provided directly to the decision-makers.
In deciding which option to choose, local governments must consider multiple factors. First, the administrative burden on the staff in providing notice, preparing for and attending hearings, and preparing a record of such hearings must be considered. Second, the need to involve the city or county attorney to ensure the record given to the final decision-maker is sufficiently “fulsome” should be taken into account, as well as any associated increase in legal fees. Third, the potential burden on elected officials to extend their already lengthy meetings to include zoning hearings should be weighed. Fourth, the incremental costs involved with an additional hearing, such as advertising the meeting, preparation of a transcript or other “fulsome” record, and the associated staff time needs to be accounted for, although there is a possibility that at least some of these costs could be passed onto applicants through increased application fees. Finally, any procedural changes must be reflected in appropriate amendments to the text of the Zoning Ordinance, following proper notice and hearing, and in any procedural rules adopted by the local advisory and governing bodies.
While many observers anticipated Hoechstetter would answer the simple question of how many public hearings are required during the continuous course of a zoning proceeding, as described above, the Georgia Supreme Court’s opinion seems to indicate the answer is “it depends.” By carefully reviewing and, if needed, modifying their public hearing process in light of Hoechstetter, local governments in Georgia can afford “interested citizens a meaningful opportunity to be heard” and, at the same time, assure the integrity of their zoning decisions.
David C. Kirk, FAICP is a Partner at Troutman Sanders LLP.
Kitan Ajanaku is a student at the Georgia State University College of Law and a Summer Associate in Troutman Sanders LLP’s Atlanta office.
The opinions expressed are those of the authors and do not necessarily reflect the views of Troutman Sanders LLP, its clients, Georgia State University College of Law or any of its or their respective affiliates. This article is for general educational and informational purposes only and is not intended to be and should not be taken as legal advice.