Letter to the Editor: Attorney Says Daycare Expansion Illegal
The attorney representing residents of Flagler Circle opposed to the expansion of Oxford Academy asserts that the city of Smyrna isn't protecting its residents' Fifth and Fourteenth Amendment rights.
Alan Aycock is the real estate consultant who represents some of the residents of Flagler Circle who are opposed to the expansion of Oxford Academy. He shared this letter that was sent to Smyrna Mayor Max Bacon, Smyrna City Council Representatives and city staff that asserts that the expansion is illegal.
City of Smyrna, Georgia
2800 King Street
Smyrna, Georgia 30080
RE: Proposed expansion of illegal use at 811 Church Street (Oxford Academy).
Dear Mayor, Councilmembers, Mr. Suddreth, Ms. Broyles and Mr. Taylor:
As you know, this firm represents Donald and Bonnie Berry of 835 Flagler Circle, Smyrna Georgia with respect to their stated objections to the proposed expansion of the Oxford Academy along Church Street and onto Flagler. This objection is made more poignant by the observation that Oxford Academy is not an authorized use under the R-15 zoning category as Church Street is designated a “minor road” on the Transportation Plan and is not designated a major or minor arterial. As you know, Section 703.2 (1)requires such uses to be located on a major or minor arterial. Accordingly the current use should not have been allowed.
It additionally has come to our attention that the current use covers 71% of the property. As you also know, Section 801 imposes a 35% impervious lot coverage requirement (regardless of the “use” of the R-15 property). Accordingly, the site is dramatically overbuilt with no apparent variances and has been illegal since its inception.
As I am sure you are aware, a permit granted in violation of the existing ordinance vests no rights in its continuation and the use should be terminated immediately. It is no defense that a building permit or license already has issued for the existing facility. “A permit issued for a use or structure which is forbidden by the ordinance is beyond the power of the officer to issue; consequently, it has no legal status, is invalid, and is itself entirely without power to clothe its holder with any legal rights thereunder.” 56 Rathkopf, The Law of Zoning and Planning, § 1 (1964) and cit. “A permit for a use prohibited by a valid zoning ordinance, regulation, or restriction is void, of no effect, and subject to revocation. This is true although the permit has been issued under a mistake of fact.” 8 McQuillin, Municipal Corporations, § 25.153 (3d ed. 1983). “The expenditure of even substantial sums in reliance upon a permit found to be void is generally held not to raise an estoppel against its revocation or against enforcement of the ordinance found to be violated by the use or structures maintained pursuant to the permit.” Rathkopf, supra, § 56-13. See Corey Outdoor Adver., Inc. v. Bd. of Zoning Adjustments of City of Atlanta, 254 Ga. 221 (1985).
Georgia courts consistently have held “that a permit issued for either an illegal use or an illegal nonconforming use is void; it cannot be used as an excuse to continue the use in violation of a zoning ordinance, and it does not vest constitutional rights. Id. Accordingly, the conversation should be about the termination of the illegal use and not the unlawful expansion.1 1
Additionally, it has been incorrectly opined that the applicant’s submission of a partial plan somehow vests their rights under the existing ordinance (which, as above, still would not permit the use). That is not correct. Only submission of a then-proper,complete application for a permit “gives an applicant a vested right to consideration of the application under the law in existence at the time the application is filed.” Fulton County v. Action Outdoor Advertising, JV, 289 Ga. 347 (2011).
As discussed before the Planning Commission, the proposed expansion of the facility along Church and Flagler is similarly illegal. These roads are not classified as arterials nor are they classified as “collectors” under the Transportation Plan. The current efforts to “clarify” the existing Zoning Ordinance makes less clear what types of roads permit this type of construction but it remains clear that Church is not classified either as a collector or as an arterial; according the requested building permits should be denied. “It is a fundamental rule of statutory construction that where the language of a statute is plain and unambiguous, the terms used therein should be given their common and ordinary meaning. See generally Sledge v. Employee's Ret. Sys. of Georgia, 196 Ga. App. 597 (1990)(citing Board of Tax Assessors of Decatur Co. v. Catledge, 173 Ga. 656). Importantly, the law will not permit adjudicatory (or administrative) bodies or agents to “strain the construction of the [statute] so as to discover an ambiguity. State Farm Mut. Auto. Ins. Co. v. Staton, 286 Ga. 23 (2009)(citing Shaw v. State Farm Mut. Ins. Co., 107 Ga. App. 8).
Here the statute is unambiguous. Section 703.2 (1) mandates that any day-care facility being located in an R-15 zoning district must be “located on a lot which has access to a major or minor arterial.” Neither Church Street nor Flagler are major or minor arterials; indeed the Comprehensive Plan 2005-2030, identifies Church Street as a “minor road” out of five possible choices: Interstate Highway; Major Road; Minor Road; Arterial road; and Other Roads (outside Smyrna). The Thoroughfare Plan similarly lists Church Street lists as “Minor,” which, of the five categories, is the correct category for a “minor road.” It has vehicle counts of less than 2500 vehicle trips a day and is not an arterial no matter how strained a reading is attempted.
Finally, on behalf of my clients, the proposed building permit and text amendment are objected to because they constitute an attempt to circumvent the prohibition on spot zoning. Spot zoning is “‘the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners.’ ” Bobo v. Cherokee County, 248 Ga. 554, 285 S.E.2d 177 (1981)(emphasis added) (citing 2 Rathkopf, The Law of Planning and Zoning, § 26.02, p. 26-1, quoting Rodgers v. Village of Tarrytown, 302 N.Y. 115, 123, 96 N.E.2d 731, 734 (1951).
Here the contemplated use is clearly a commercial enterprise which is trying to shoe-horn its way into a use description which was enacted at the time the current owner was a council member. The new property is not adjacent to nor directly across the street from a non-residential zoning category. If the City begins to permit merger of properties to reach out like a tentacle to find frontage on a road which satisfies the ordinance, what next will be permitted? A ten-foot strip across the back of yards which reaches out to an arterial? For purposes of measuring “adjacent to” the City could and should employ the maps in existence when the ordinance was created. Those lots which existed at the time are the ones against which “adjacent to” should be measured, not whatever Frankenstein-lot can be created by merging lots to round a corner while “preserving” the “across the stree” definition of “adjacent to.”
On behalf of my clients it is submitted that the City’s failure to enforce the current Zoning Ordinance and its contemplation of further violations of the Zoning Ordinance is unlawful and violative of our clients’ constitutional due process rights and constitutes a taking of their private property without just compensation in violation of the Fifth Amendment and Fourteenth Amendment of the Constitution of the United States, and Article I, Section I, Paragraph I and Article I, Section III, Paragraph I of the Constitution of the State of Georgia and the Due Process Clause of the Fourteenth Amendment of the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.
Further, approval of the proposed expansion or permitting the existing illegal use to continue discriminates in an arbitrary, capricious and unreasonable manner against our clients who have had use and enjoyment of their property stripped from them in violation of Article I, Section III, Paragraph I of the Constitution of the State of Georgia and the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States.
Finally, it is submitted that this text amendment and any grant of the building permit is also violative of the Constitutional prohibition on gratuities found in Article Art. 3, § 6, Par. 6(a) as there is no rational basis for such an amendment and it is not designed for any public purpose but is, instead, begin created solely to facilitate one developer who is a former city council member. On behalf of my clients, the City is respectfully urged to deny the application and to review toward termination the current illegal use. Please feel free to contact me with any questions.
Sincerely, ROBERTS & DAUGHDRILL, P.C. Brian E. Daughdrill Brian E. Daughdrill
Read More About the Oxford Academy Expansion on Smyrna-Vinings Patch