Agenda - Planning Commission - 01/04/2007

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Page 6 - Special Issue: Biweekly Edition Z.B. Equal Protection Board treats two similar lots differently on same day One lot had a preexisting nonconforming use Citation: Rockdale County V.- Burdette, Supreme Court of Georgia, No. S04A0719 GEORGIA - Burdette asked the board of commissioners to rezone his land so he could use his property as a small used-car sales lot, a use prohibited by the current C-I ("local commercial") zoning. He wanted the board to change the zoning to C-2 conditional, which would permit a more intense "general commer- cial" use of the property. In addition, Burdette was willing to limit his use of the property to a car lot containing a maximum of 15 cars. The board of commissioners denied his request. Burdette sued, claiming the decision violated his equal protection rights, and the court ruled in l.1is favor. The court concluded that the denial to rezone constituted. a violation of Burdette's equal protection rights because, on the same day the board denied Burdette's rezoning application, it had approved a rezoning applica.tion on a parcel five miles away. The board allowed the second parcel to be rezoned from C-2 conditional (limited to use as a used-car lot) to C-1, with the con4lition that the owner of the second parcel operated a small used-car lot as a legal. noncon- forming use. The owner of the second parcel had operated a small u~ed"'carlot on the property since 1989, when his property was zoned as C-2 conc:l~tional~ In 1991, however, the county adopted a comprehensive land-use plan that called for both the used-car lot and Burdette's parcel to be zoned C-l. The county appealed. DECISION: Reversed. Burdette's equal protection rights were not violated. The owners of the two separate parcels of property were not cOIl:sidered to be similarly situated for equal protection purposes whfm only one Qfthe par- cels had a preexisting nonconforming use. The lower court determined that both landowners were similarly situated because the second parcel did not have a preexisting nonconfonning use. However, the lower court erred in limiting a preexisting nonconfonning use to only those uses in existence at the time the governing authority ena~ted its initial zoning ordinance. Instead, a preexisting nonconforming use was defined as '~a l1se which lawfully existed prior to the enactment of a zoning ordinance ... \illd which therefore may be maintained after the effective date of the ordinance ,or amend- ment although it does not comply with the zoning restrictions." Since the sec- ond parcel was rezoned to C-I zoning, the use of the property as a used-car lot was a nonconforming use. Therefore, Burdett was not similarly sit}1ated with @ 2006 West, a Thomson business. Quinlan m is a Thomson West brand. Any reproduction is prohibited. 162 .r (. , - , i i I \ ! i i 1 ,j - :! : i r i - ; , !