Making Real Estate Work

Setting the Record Straight – for Appeal

Posted In Real Estate

Recording a Meeting

Perfecting the record is essential to a successful appeal of a trial court decision. In a zoning case a complete record includes documentation of all government actions prior to filing suit. A recent case of the Georgia Supreme Court hinged upon an incomplete record. Hoechstetter et al v. Pickens County, 2018 Ga. LEXIS 402, 2018 WL 2465513 (June 4, 2018).

Doug and Lynda Tatum applied to the Pickens County Board of Commissioners for a conditional use permit on 75 acres. The application went to the county planning commission, which published notice and held a hearing in October 2015. Several neighbors appeared and objected. The planning commission recommended approval anyway. The Board of Commissioners approved the application in January 2016.

Some of the neighbors filed suit and alleged that the Board of Commissioners failed to give notice of the January 2016 meeting as required by the Zoning Procedures Law (O.C.G.A. §33-66-1 etc.) and thereby failed to give them meaningful opportunity to be heard. See O.C.G.A. § 36-66-4 (a). The Board responded that the October 2015 hearing with its precedent notice was sufficient. The neighbors filed a motion for summary judgment. The superior court denied it and the Georgia Court of Appeals affirmed. Hoechstetter v. Pickens County, 341 Ga.App. 213 (799 SE2d 352) (2017). The Supreme Court granted certiorari.

The Supreme Court reasoned that, although a hearing is not required at every stage of the zoning process (and one may be sufficient), interested citizens must have a meaningful opportunity to be heard by the body vested with the decision-making authority. The Board of Commissioners (the decision maker; the planning commission being authorized only to make recommendations) had the benefit only of a one-page memorandum summarizing the October 2015 hearing. The memorandum stated only that the planning commission heard “testimony from the applicant and considerable objections from the surrounding neighborhood in attendance.” It gave no details of the objections. That record failed to show satisfaction of the notice-and-hearing requirements of the Zoning Procedure Law, and the Supreme Court reversed the Court of Appeals.

The onus of preparing a proper record should be that of the zoning authority, as recognized, for example, by the zoning ordinance of Pooler, Georgia:

"The city clerk or an agent of the city clerk shall mechanically record the proceedings of all zoning public hearings. If requested by any party, verbatim transcripts of the public hearing can be prepared, but only if requested and purchased in advance by the requesting party, who must arrange at his expense for a certified court reporter to record and transcribe the hearing and furnish the original of the transcript to the city council for its records. The record of the public hearing and all evidence (e.g., maps, drawings, traffic studies, etc.) submitted at the public hearing shall be noted as such and shall become a permanent part of the particular zoning action's file."

Zoning Ordinance, Pooler, Georgia, Article V, Section 6 (d). Counsel for a zoning applicant in jurisdictions such as Pooler should confirm with the clerks proper completion of the record. In other jurisdictions the attorney should take the initiative to arrange for recording and transcription, in consultation with the clerk or other contact for the zoning authority. This cost of assuring a complete record is minimal, especially when compared to the lost costs of an overturned zoning decision.

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