BROWN v. CARSON ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: May 3, 2022
S21G0857. BROWN et al v. CARSON et al.
COLVIN, Justice.
We granted certiorari in this case to decide whether E. Howard
Carson1 acquired a vested right to develop property in a particular
manner based upon alleged assurances made to him by Tom Brown,
the Forsyth County Planning Director. Based on the record before
this Court, we conclude that Carson did not acquire a vested right;
therefore, we reverse the decision of the Court of Appeals to the
contrary and remand the case with direction. See Carson v. Brown,
358 Ga. App. 619 (856 SE2d 5) (2021). 2
1Carson is the principal for Red Bull Holdings II, LLC, the property
owner in this case.
2 Carson filed three appeals in the Court of Appeals, two of which
concerned separate actions for mandamus and injunctive relief based on his
claim that he obtained vested rights to develop the property when he applied
for a land disturbance permit. The Court of Appeals dismissed those two cases
1. On March 14, 2016, Carson met with Brown and
discussed Carson’s plans to purchase approximately 17 acres of land
and develop that property into 42 separate 9,000-square-foot
residential lots. See id. at 621. The record shows that, in his role as
Planning Director, Brown was allowed to interpret the zoning code;
however, he could not unilaterally promise or authorize the issuance
of a building permit. The record further shows that Carson knew
prior to that meeting that the current zoning code allowed for 9,000-
square-foot lots.
During the March 14 meeting, Carson showed Brown a hand-
drawn document depicting Carson’s proposed subdivision layout,
and then asked Brown to confirm whether the current zoning code
allowed for 9,000-square-foot lots on the subject property. See id.Brown confirmed that the code, as currently written, provided for
that lot size. See id. “Brown, however, ‘made no representations as
as moot, concluding that, because Carson already had a vested right, he did
not need mandamus or injunctive relief. See Carson, 358 Ga. App. at 619.
Neither party petitioned for review of those rulings; however, because our
holding affects the Court of Appeals’s reasoning on mootness, the court will
need to reconsider those appeals on remand.
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to future zoning code changes that might impact the indicated
property nor did he guarantee that Carson would be able to build
out this subdivision at 9,000[-]square[-]foot lots.’ ” See id. Two days
later, Carson made an offer on the property, see id., and the record
shows that he closed on the property approximately two weeks later.
Carson claimed that based upon his interactions with Brown
and, later, with persons in the County’s water and sewer
department, “he spent in excess of $83,000.00 obtaining the
requisite plans, studies, appraisals, and the like, pursuing
development of the property with a residential subdivision
consisting of up to 42 lots.” Id. at 621-622 (punctuation omitted).
Then, in August 2016, the Forsyth County Board of Commissioners
“imposed a moratorium on the acceptance of applications for land
disturbance permits” for 9,000-square-foot residential lots. Id. at
619 (footnote omitted). 3 Shortly after the moratorium went into
3 In October 2016, the Board of Commissioners amended the County’s
zoning code to prohibit the development of 9,000-square-foot residential lots.
See id. at 619.
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effect, Carson sought a land disturbance permit, which was denied.
See id. Carson then filed an application with the Forsyth County
planning department for a determination of his vested rights to
develop the property with 9,000-square-foot lots. See id. at 620. The
county attorney issued a decision that Carson did not have a vested
right to develop the property. Carson appealed to the zoning board
and the Forsyth County Superior Court, both of which affirmed the
decision of the county attorney. See id. at 620-622. Carson then
appealed, arguing that he had “acquired vested rights to develop the
property consistent with the zoning regulations in place when he
bought it and undertook to obtain sewer easements for the
property.” Id. at 622. The Court of Appeals reversed the decision of
the zoning board, concluding that Carson bought the subject
property and made expenditures regarding the property’s
development after relying upon the assurances of zoning officials
that a building permit would issue. See id. at 623 (quoting Cohn
Communities, Inc. v. Clayton County, 257 Ga. 357, 358 (1) (359 SE2d
887) (1987)). We granted certiorari. For the reasons set forth below,
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we reverse the decision of the Court of Appeals.
2. This Court has recognized four different scenarios
wherein a landowner could acquire a vested right to initiate a
specific use of a property despite a change in zoning laws. Those
instances are when the landowner relies upon (1) issued building
and other permits, (2) the law in existence at the time a landowner
properly files an application for a permit, (3) formally and informally
approved development plans, or (4) official assurances that a
building permit will probably issue. See WMM Properties, Inc. v.
Cobb County, 255 Ga. 436, 438-439 (1) (339 SE2d 252) (1986). This
case concerns a right asserted based on the last category.
Accordingly, in order to determine whether Carson acquired a
vested right, we must look to whether he “ma[de] a substantial
change in position by expenditures in reliance upon the probability
of the issuance of a building permit, based upon an existing zoning
ordinance and the assurances of zoning officials.” Cohn, 257 Ga. at358 (citing Barker v. Forsyth County, 248 Ga. 73, 76 (2) (281 SE2d
5
549) (1981)).4
The Court of Appeals erroneously concluded that the March 14,
2016 discussion established that Brown made an assurance to
Carson. Specifically, the Court of Appeals explained that Georgia
law does not require “that the zoning official’s assurances cover
possible future changes” or that the assurance “make[s] any specific
representation or contain any magic words.” Carson, 358 Ga. App.
at 623. In order to acquire a vested right based on an assurance,
4 Barker summarily announced this test, relying on a 1963 Illinois
Supreme Court opinion. See 248 Ga. at 76 (citing Cos Corp. v. City of Evanston,
190 NE2d 364, 367-368 (Ill. 1963)). Neither Barker nor Cohn define the term
“zoning officials” or clarify how many or what kind of “zoning officials” need to
be consulted before a landowner can reasonably rely on their assurances that
a building permit will issue. These cases also appear to be in tension with
Georgia statutory law that “[a] governing authority may not be estopped
regarding an ultra vires act.” City of Warner Robins v. Rushing, 259 Ga. 348,
348 (381 SE2d 38) (1989) (citing OCGA § 45-6-5, which states: “Powers of all
public officers are defined by law and all persons must take notice thereof. The
public may not be estopped by the acts of any officer done in the exercise of an
unconferred power”). See also Corey Outdoor Advertising v. Board of Zoning,
254 Ga. 221, 224 (327 SE2d 178) (1985) (explaining that “equitable estoppel
will not apply so as to frustrate or contravene a governmental function of a
governmental unit”); City of Calhoun v. Holland, 222 Ga. 817, 819 (152 SE2d
752) (1966) (“In dealing with public agents, every person must take notice of
the extent of their powers at his peril.” (punctuation and citation omitted)).
Though the Barker majority opinion did not mention what is now OCGA § 45-
6-5, the statute was cited by the dissent. See Barker, 248 Ga. at 78 (Hill, J.,
dissenting). However, we need not address these issues further here, as there
was no assurance made to Carson in this case.
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however, a landowner must show, in part, the landowner’s “reliance
upon the probability of the issuance of a building permit,” meaning
that the alleged assurance requires a representation that a building
permit will likely issue in the future. Cohn, 257 Ga. at 358-359(emphasis supplied) (explaining that “this rule is derived from the
principle of equitable estoppel,” and that Georgia courts have
applied it “to situations where the landowner, relying in good faith
on official assurances that a building permit will probably issue to
develop the property in question as it is currently zoned, makes a
substantial change in his position by the expenditure of substantial
sums of money” (emphasis supplied)). Cf. WMM Properties, 255 Ga.
at 439 (1) (d) (approval of development plan from all relevant county
departments without stipulations, together with county planning
commission’s issuance of a certificate of zoning, qualified as an
assurance creating a vested right); Spalding County v. East
Enterprises, Inc., 232 Ga. 887, 887-889 (209 SE2d 215) (1974)
(landowner acquired a vested right to develop property when he
purchased the property in reliance upon the assurance of one county
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commissioner that the property was zoned for the intended use, the
landowner’s development plan was informally approved by the
county commissioners, and he expended money in reliance on the
same).
Here, the record shows no assurance from Brown that a
building permit would probably issue or that the county would not
change the property’s zoning. In other words, Brown’s words were
“no more than a neutral statement of the present zoning in effect, a
fact [Carson] could easily [have] obtain[ed] himself by consulting the
proper records.” Cohn, 257 Ga. at 359. The Court of Appeals’s
determination to the contrary was erroneous.
We are also unpersuaded by the Court of Appeals’s attempt to
distinguish our decision in Cohn from the present case. In
concluding that this case did not fall squarely within Cohn’s
limitation on what qualifies as an assurance, the Court of Appeals
relied on the fact that Brown’s confirmation to Carson “occurred
within the context of a face-to-face discussion,” wherein Carson
expressed an interest in purchasing and developing the property
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and, later, spent in excess of $80,000 to prepare the land.. Carson,
358 Ga. App. at 623-624. However, neither the letter issued by the
zoning official in Cohn nor the discussion with Brown in this case
included any assurance that a building permit would probably issue.
The Court of Appeals also concluded that, unlike Cohn, there
was evidence that Brown had notice that Carson “was about to
expend substantial sums in reliance on information received.”
Carson, 358 Ga. App. at 624. However, the record shows that, at the
time of the March 14 meeting, Brown only knew that Carson was
interested in purchasing a parcel of land and potentially developing
the land into 42 lots, and “the purchase of land by itself does not
confer a vested right to a particular use upon the purchaser.” North
Georgia Mountain Crisis Network, Inc. v. City of Blue Ridge, 248 Ga.
App. 450, 452 (546 SE2d 850) (2001). Moreover, the record shows
that Carson knew that the zoning ordinance allowed for 9,000-
square-foot lots prior to his March 14 conversation with Brown, and
“there can be no estoppel by conduct where both parties have equal
knowledge or equal means of knowing the truth.” City of Atlanta v.
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Black, 265 Ga. 425, 429 (457 SE2d 551) (1995) (citation omitted).
Based on the foregoing, we agree with Brown that our decision in
Cohn controls in this case. Accordingly, we reverse the decision of
the Court of Appeals, and we remand the case with direction to
consider the two other appeals that the court mooted based upon the
holding we are reversing.
Judgment reversed and case remanded with direction. All the
Justices concur, except Warren, J., not participating.
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