Agenda - Planning Commission - 03/05/2009

Home

January 10, 2009/ Volume 31 No.1 .J tional use permit request was approved, C & H sued the county and Lunsford. C & H alleged, among other things, that the county failed to follow its zoning regulation and governing state law in considering and granting Lunsford's request. Specifically, C & H qrgued that be- cause the Notice published on December 22, 2005 was "mbre than 45 . days prior to" the February 6, 2006 hearing date, the notice failed to comply with either State law or the county's zoning regulations. Ac- cordingly, C & H contended that Lunsford's conditional use permit was invalid. ., In response, the county argued that the Notice met all legal requirements. ' The trial court ruled in favor of the county. C & H appealed. DECISION: Reversed ~. ) The court of appeals concluded that the Notice failed to meet the state and county zoning law because it was published 46 days before the hearing. Relevant state law, OCGA ~ 36-66-4(a), provided that a local government taking action resulting in a zoning decision, including the grant of a special use permit, must: (1) provide for a hearing on the proposed action; and (2) "[a]t least 15 but not more than 45 days prior to the date of the hearing ..." publish notice of the hearing in the local newspaper. The relevant county zoning regulation provided the same. The court said that the publication requirement was "mandatory, not directory," and that a county's failure to comply with the state law would invalidate the subject zoning action. In its defense, the county pointed to a state law related to measuring a period of time prescribed by statute for the exercise of any duty. That law, OCGA ~ 1-3-1(d)(3), provided that, when measuring time, if the last day fell on a Saturday or Sunday, the party with the duty had until the following Monday to discharge the duty. The county argued that since the 45th day after the Notice fell on Sunday, February 5, then the Board was permitted to hold the public hearing on the following Mon- day, February 6. The court rejected that argument. It said that since OCGA ~ 36-66-4(a) required notice not more than 45 days prior to the date of the hearing, it was "the hearing date that [wa]s the date certain from which the timeliness of the notice must be considered." Since the hearing was neither set for Sunday, February 5 nor held on that date, no pertinent date "fell on" a Sunday for purposes Of measuring time under OCGA ~ 1-3-1(d)(3). The county had also contended that the Notice was legally sufficient because the statute did not provide that notice be published "within" 45 days of the hearing date. Therefore, argued the county, both the date of publication and the date of the hearing should have been excluded in Zoning Bulletin @ 2009 Thomson Reuters 7 j 73