Summary of a Recent
Judicial Development in
Urbanization & Agriculture

County Did Not Satisfy Notice Requirement for
Public Hearing on Conditional Use Permit

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In C & H Development, LLC v. Franklin County, 670 S.E.2d 491, 2008 WL 4966221 (Ga. Ct. App. 2008), the Georgia Court of Appeals held that a county had not satisfied the notice requirement for holding a public hearing on a conditional use permit application, and therefore its zoning action was invalId.

Background

C & H Development (C & H) sued Franklin County and its neighboring landowner, claiming that the county failed to follow its zoning regulation and governing state law in considering and granting the landowner's request for a conditional use permit to build chicken houses on his property. Id. at *1. The properties at issue were located in the county's "agricultural intensive district." Id. The county's zoning regulation provided that poultry operations which met the district's minimum requirements constituted a "conditional use." Id. The county had published notice of a public hearing on the conditional use permit request in the local newspaper 46 days prior to the hearing. Id. The trial court granted summary judgment to the county, and C & H appealed. Id.

Arguments

C & H argued that because the notice was published more than 45 days prior to the hearing date, it failed to comply with either state law or the county's zoning regulation, rendering the county's action approving the conditional use permit invalid. Id.

The county argued that the notice met all legal requirements because both the date of the publication and the date of the hearing should be excluded when calculating time periods for notice requirements. Id. at *1-2.

Analysis and Holdings

Section 1608 of the county's zoning regulation provides that following receipt of a request for a conditional use permit, notice of the application shall be published "at least one (1) time in a newspaper of general circulation in the community at least fifteen (15) days but not more than forty-five (45) days prior to the date of the public hearing," otherwise the zoning action will be invalid. Id. at *1. The court explained that in counting days, "the general rule of computation . . . requires the exclusion of the first day and the inclusion of the last," which meant that the notice was published 46 days prior to the hearing; therefore, the court reversed the trial court's order granting summary judgment to the county. Id. at *2.

The case was decided on November 24, 2008.