Agenda - Planning Commission - 04/01/1997

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Page 2 -- March 10, 1997 Z.B. Commercial Use L Promoters ignore court order and stage rally Bo Fancy Productions I~c. v. Rabun County Board of Commissio~ers, 478 S.E. 2d 373 (Georgia) 1996 Bo Fancy Productions Inc. rented land in Rabun County, Ga., to hold "Bo's Mountain Rally," a three-day event with camping, motorcycles, concerts and more than 200 vendors. Three weeks before the rally, the county sued Bo Fancy to stop the event. The county claimed Bo Fancy had ignored the county's zoning ordinance and Georgia's Mass Gathering Act. The Act required a party to apply for a permit fi-om the state Department of Human Resources 45 days before holding or promoting a mass gathering. The Act did not require the department to process the application within a certain time. Bo Fancy never applied for a permit. Part of the land Bo Fancy had rented was zoned agricultural; another part was zoned residential. The zoning ordinance prohibited commercial activity on residential property, but did not clearly restrict the same activity on agricultural property. The ordinance allowed agricultural property to be used for "public and semi-public ... land uses[,] ... recreation facilities and grounds." Bo Fancy told the court it would hold the rally's commercial parts on the agricultural land and use the residential land for free parking. The court ruled the ordinance did not allow "clearly commercial endeavors" on agricultural property. It also said the ordinance prohibited commercial activity on residential property. Though the parl~ing was free, it would support the rally-- a commercial purpose. The court ordered Bo Fancy not to hold a raI[y. Bo Fancy ignored the court order and held the rally. The court found Bo Fancy in contempt. Bo Fancy appealed the decision, arguing the court interpreted the ordinance incorrectly, and that the Act was unconstitutional. DECISION: Reversed in part and returned to the lower court. The lower court properly ruled Bo Fancy could not use the residential land for parldng. However~ it erred in ordering Bo Fancy not to hold a ccrmme~c~al function on agricultura! property. While the zoning ordinance clearly outlawed commercial activity on residential land, it did not clearly prohibit commercial use on agricultural property. In addition, the activities Bo Fancy planned to hold during the rally could be considered "public" and "recreational" -- both of which the zoning ordinance authorized. And since any unclear language in a zoning ordinance had to be interpreted in favor of the property's free use, holding the rally on agricultural property did not violate the ordinance. The lower court also incorrectly ruled the Act was constitutional. By requiring a permit for holding or promoting a mass gathering, the Act restrained free expression. Prior restraints had to have reasonable time limits, or else they risked indefinitely suppressing allowable speech. Here, the Act did not restrict the length of the department's decisionmaking process. Even though some of the lower court's rulings were incorrect, Bo Fancy was still in contempt because at the time it ignored the lower court's order, the order had not been overruled.