Agenda - Planning Commission - 04/05/2018

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Zoning Bulletin February 10, 2018 I Volume 12 I Issue 3 Citation: May v. Morgan County Georgia, 2017 WL 6521296 (11 th Cir. 2017) The Eleventh Circuit has jurisdiction over Alabama, Florida, and Georgia. ELEVENTH CIRCUIT (GEORGIA) (12/21/17)—This case addressed the issue of whether the constitutionality of a zoning ordinance that is challenged in state court can later be challenged in federal court. The Background/Facts: Christine May ("May") purchased lakefront property in Morgan County, Georgia (the "County") on which she constructed a vacation home. In order to allay the cost of construction, May planned to (and did) use the home for short-term vacation rentals. At the time, the County's zoning ordinance only allowed uses that were listed as "permitted" or "conditional." Short-term rental of single family dwell- ings (such as May's) were not listed as "permitted" or "conditional." In 2010, the County adopted Regulation 15.35. That regulation explicitly banned rentals of single family dwellings for less than 30 consecutive days in the zoning district in which May's property was located. May continued to rent her property on a short-term basis. In August 2011, the County issued to May a criminal citation for violating Regula- tion 15.35. In April 2012, May filed a lawsuit in Georgia state court. In her lawsuit, she argued that she had a "grandfathered" right under the County zoning ordinances to continue offering short-term rentals on her property. She also argued that application of Regulation 15.35 to her property was un- constitutional under the due process and equal protection clauses of the United States and Georgia Constitutions, and the privileges and immuni- ties clause of the Fourteenth Amendment of the United States Constitution. Ultimately, the state trial court concluded that May's action was barred because: (1) she had failed to exhaust her administrative remedies by not seeking a rezoning and conditional use permit from the County before fil- ing suit; and (2) Georgia Code § 5-3-20(a) barred May's claims because she failed to challenge the adoption of Regulation 15.35 (on its face, or as applied to her property) within 30 days of its passage. May appealed. The Georgia Court of Appeals denied her application for a discretionary appeal. May again appealed, and the Supreme Court of Georgia also denied review. May then attempted an administrative remedy. She filed an application for rezoning with the County, which would allow her property to be rezoned for short-term rentals. She also asked the County to amend the zoning ordinance to allow short-term rentals by property owners who rented before enactment of Regulation 15.35. She also requested that the County declare her right to continue offering short-term rentals on her property. The County denied her request and her applications. In May 2015, May filed a lawsuit against the County in federal district court. In that action, she again argued that she had a grandfathered right to © 2018 Thomson Reuters 3