ROCKDALE COUNTY. v. U. S. ENTERPRISES, INC. And Vice Versa ( 2021 )

In the Supreme Court of Georgia
Decided: November 2, 2021
S21A0718. ROCKDALE COUNTY v.
U.S. ENTERPRISES, INC. et al.
S21X0719. U.S. ENTERPRISES, INC. et al. v.
ROCKDALE COUNTY.
NAHMIAS, Chief Justice.
This case arises from Rockdale County’s denial of an
application for a permit to build a QuikTrip on property owned by
William Corey and U.S. Enterprises, Inc. (the “Owners”), on the
ground that the proposed facility is a “truck stop,” which is a
prohibited use under the County’s Unified Development Ordinance
(“UDO”). After the County’s Board of Adjustment affirmed the
denial of the permit, the Owners filed a petition in the Rockdale
County Superior Court seeking, among other things, certiorari
under OCGA § 5-4-1 et seq. The superior court sustained the petition
for certiorari, rejecting the County’s argument that the Owners’
lawsuit was barred by res judicata and reversing the Board’s
decision on the ground that the UDO’s applicable definition of a
“truck stop” was unconstitutionally vague and therefore violated
due process under the Georgia Constitution. See Ga. Const. of 1983,
Art. I, Sec. I, Par. I (“No person shall be deprived of life, liberty, or
property except by due process of law.”).
After this Court granted the County’s application for a
discretionary appeal, the County appealed, and the Owners then
cross-appealed. For the reasons explained below, in the County’s
appeal, we affirm the superior court’s rejection of the County’s res
judicata argument, reverse the part of the superior court’s judgment
ruling that the “truck stop” definition was unconstitutionally vague,
and remand the case for further proceedings. Our holding makes it
unnecessary to address the Owners’ cross-appeal, which we
accordingly dismiss as moot.1
1. The record shows the following. In August 2019, the Owners
applied to the County for a land disturbance permit to construct a
1 The County’s motion to dismiss the Owners’ cross-appeal on the ground
that the Owners’ principal brief was untimely filed is denied.
2
QuikTrip “convenience store with fuel pumps” on 7.6 acres of their
property that is located near Interstate 20 and zoned C-2, which
allows for a “[g]asoline station with convenience store” but prohibits
a “[t]ruck stop.” UDO §§ 218-1; 214-11. The site plans for the
QuikTrip include four entrances to the parking lot; a 7,318 square
feet convenience store; an 8,176 square feet canopy near the front of
the store with 10 gasoline fueling stations for automobiles; a 4,193
square feet higher canopy with six diesel fueling stations near the
back of the store; 69 parking spaces, including 14 spaces for heavy
trucks; truck weigh scales; and air pumps.
The Owners submitted “Constitutional and Statutory
Challenges” with their permit application, asserting, among other
things, that the proposed facility did not meet the UDO’s definition
of a “truck stop” and that a denial of the permit would violate their
right to due process under the Georgia Constitution because the
definition of a “truck stop” was “overbroad, vague, and fail[ed] to set
forth a standard [on] which a reasonable person could understand
3
and rely.” 2 In September 2019, the County’s Planning and
Development staff denied the Owners’ application on the ground
that the proposed QuikTrip constituted a prohibited “truck stop.”
Section 214-11 of the UDO says: “Truck stops are prohibited.
Furthermore, no adjoining or adjacent uses shall be physically
connected or used so as to effectively create a truck stop.” The UDO
in effect at the time the Owners applied for the permit defined a
“Truck stop” as follows:
A prohibited use that includes any building, premises, or
land in which or upon which a business, service, or
industry involving the maintenance, servicing, storage, or
repair of heavy trucks and similar commercial vehicles is
conducted or rendered, including the dispensing of motor
fuel or other petroleum products primarily for such heavy
trucks and similar commercial vehicles and the sale of
accessories or equipment for heavy trucks and similar
commercial vehicles, as well as overnight
accommodations, showers, overnight customer parking,
2 In addition, the Owners contended that a denial of the permit would
amount to an unconstitutional taking of their property and violate their right
to equal protection, and that the UDO was invalid because it was not adopted
in compliance with the Zoning Procedures Law, see OCGA § 36-66-1 et seq.,
and because it was not attached to or incorporated by reference in the minutes
of the meeting at which it was adopted. With the exception of the last claim,
which the Owners try to raise in this Court in their response brief in the
County’s appeal, see footnote 8 below, these claims are not at issue on appeal
and will not be further discussed.
4
or restaurant facilities for the use of crews of heavy trucks
and similar commercial vehicles.
UDO § 106-1 (c). 3 The UDO defines “Truck, heavy” as “[t]rucks,
including truck tractors, and similar vehicles with two or more rear
3 In December 2020, three months after the superior court ruled that this
definition was unconstitutionally vague, the County completely revised the
definition to say:
Truck stop: A gasoline station or gasoline station with convenience
store that dispenses diesel or any other fuel or petroleum product
used by heavy trucks, and which includes one or more of the
following additional facilities:
(1) A parking area designed for use by heavy trucks,
(2) Weight scales designed for use by heavy trucks,
(3) A raised canopy used primarily or exclusively by heavy
trucks to dispense diesel or other heavy truck fuel that is
separate or distinct from the canopy or area used to dispense
fuel to cars,
(4) A restaurant or fast food restaurant which includes either
dine-in facilities or a drive-through window or both,
(5) Facilities for the maintenance and/or repair of heavy
trucks,
(6) Facilities for the overnight storage of heavy trucks,
(7) Shower facilities made available to crews of heavy trucks,
(8) Graded hard surface areas designed specifically to
accommodate the wide turning radius utilized by heavy
trucks,
(9) Specially designed entrances and exits to accommodate
access by numerous heavy trucks and/or
(10) Any other specialized facility or amenity designed
specifically for the use of heavy trucks and/or the crews of
heavy trucks.
Truck stops are a prohibited use. Any MPD’s (Multi-Product
Dispenser) having a flow rate faster than five gallons per minute
shall be prohibited.
This new definition is not at issue here.
5
axles.” Id. The UDO defines “Vehicle, commercial” in pertinent part
as “[v]ehicles with a gross vehicle weight rating . . . of 10,001 pounds
or more used as a part of a business.” 4 Id. The UDO does not define
“restaurant facilities,” but it defines “Restaurant” as “[a]n
establishment in which the primary purpose is preparing, serving,
and consuming food and beverages.” Id.
Although the UDO prohibits truck stops in all zoning districts
in the County, it permits “[g]asoline station[s] with convenience
4 The full definition of “Vehicle, commercial” is as follows:
Vehicles with a gross vehicle weight rating (GVWR) of 10,001
pounds or more used as a part of a business (including a non-profit
organization), including, but not limited to any vehicle which falls
into one or more of the following categories: (1) truck tractor; (2)
semi-trailer, which shall include flat beds, stake beds, roll-off
containers, tanker bodies, dump bodies and full or partial box-type
enclosures; (3) vehicles of a type that are commonly used for the
delivery of ice cream, milk, bread, fruit or similar vending supply
commercial or delivery trucks. This category shall include vehicles
of a similar nature which are also of a type commonly used by
electrical, plumbing, heating and cooling, and other construction
oriented contractors; (4) tow trucks; (5) commercial hauling trucks;
(6) vehicle repair service trucks; (7) vehicles with blades attached
for plowing or grading; (8) construction vehicle, such as a
bulldozer, backhoe and similar vehicles; (9) a vehicle which has
permanently mounted outside brackets or holders for ladders,
tools, pipes, or other similar equipment; (10) passenger carrying
vehicles with more than 15 passengers including the driver; (11)
combinations of vehicles (such as a truck pulling a trailer or other
equipment), and (12) vehicles that carry hazardous materials.
6
store[s]” in zone C-2, where the Owners’ property is located. UDO §
218-1. The UDO defines “Gasoline station with convenience store”
as “[a] gasoline station that includes a retail store that sells a limited
line of groceries and household items.” UDO § 106-1 (c). Overnight
accommodations, showers, and overnight parking are prohibited at
gasoline stations with convenience stores, which “shall not be
combined with any other use(s) or facility so as to create a truck
stop.” UDO § 218-13 (aa) (11)-(12). Finally, the UDO says that all
words not otherwise defined in the UDO “are intended to have the
commonly accepted definitions contained in a recent edition of the
Merriam-Webster Dictionary.” UDO § 106-1 (b) (4).
The Owners appealed the Planning and Development staff
decision to the County’s Board of Adjustment. See UDO §§ 238-7;
238-8 (conferring power to and setting forth the procedures for the
Board of Adjustment to decide appeals from an administrative
official’s decision enforcing the UDO). The Owners asserted in
pertinent part that the proposed facility did not meet the UDO’s
definition of a “truck stop” and that the denial of the permit violated
7
their right to due process under the Georgia Constitution. The Board
considered the appeal at a November 2019 meeting, during which
the Owners argued, among other things, that the proposed QuikTrip
did not meet the UDO’s definition of a “truck stop” because the
facility would be used primarily for the sale of gasoline to
automobiles and did not provide overnight accommodations or
parking. The Board reserved ruling on the appeal so that the parties
could submit more information about the proposed facility. 5 At a
meeting on December 2, 2019, the Board voted unanimously to
affirm the denial of the land disturbance permit.
5 After the November meeting, the Owners submitted to the Board,
among other things, a chart saying that the proposed QuikTrip was not a
“truck stop” because it would not be used for the maintenance, servicing,
storage, or repair of heavy trucks; dispense fuel or other petroleum products
primarily for heavy trucks; sell accessories or equipment for heavy trucks; or
provide overnight accommodations, showers, overnight customer parking, or
restaurant facilities. The County submitted documents arguing that the
facility was a “truck stop,” noting, among other things, that it would be “[o]pen
24 hours per day”; that it was designed to accommodate the turning radius
requirements of heavy trucks; and that the automobile fueling and parking
area would constitute 23.8% of the site while the heavy truck fueling, scale,
and parking area would constitute 46.5% of the site. In response to those
calculations, counsel for the Owners said in a December 2 email to a County
official that the Owners calculated that the heavy truck fueling, scale, and
parking area would constitute only 36.3% of the site.
8
On December 23, 2019, the Owners filed a petition, which they
later amended, in the Rockdale County Superior Court, seeking
certiorari, a declaratory judgment, an injunction, mandamus, and
attorney fees.6 The Owners claimed, in pertinent part, that the
“truck stop” section of the UDO violated the Georgia Constitution
because it was “overbroad and violate[d] Due Process” and that the
Board of Adjustment erred by determining that the proposed
QuikTrip qualified as a “truck stop.”
After the defendants and respondents filed motions to dismiss,
the superior court issued an order on August 7, 2020, denying the
motion to dismiss the certiorari claim but granting the motion to
dismiss (without prejudice) the claims for declaratory judgment,
injunction, and mandamus. After further briefing by the Owners,
the County renewed its motion to dismiss the certiorari claim,
6 The petition named as defendants the County and the three members
of the County’s Board of Commissioners in their official and individual
capacities. The petition named as respondents the four then-members of the
Board of Adjustment in their official and individual capacities. See UDO § 238-
13 (stating that review of a final decision of the Board of Adjustment may be
sought through a petition for certiorari to the superior court and that in any
such petition, the Board of Adjustment shall be the respondent and the County
shall be the defendant).
9
arguing that the lawsuit was barred by res judicata because in 1999,
the Owners had filed an unsuccessful lawsuit against the County
challenging the denial of a land disturbance permit to build a “travel
plaza” on the same property, and that the vagueness challenge was
not properly raised.
On August 24, 2020, the superior court heard oral arguments
on the motion to dismiss. Near the end of the hearing, the court
orally ruled that res judicata did not bar the Owners’ claims and
that the UDO’s definition of a “truck stop” was “facially invalid on
due process grounds because of vagueness and ambiguity.” On
September 4, 2020, the court issued an order sustaining the Owners’
amended certiorari petition and reversing the Board of Adjustment’s
decision denying the permit on the ground that the UDO’s definition
of a “truck stop” was vague and therefore violated due process under
the Georgia Constitution. The court ruled that the terms
“maintenance,” “servicing,” “similar commercial vehicles,”
“primarily,” “accessories,” and “restaurant” were vague. The court
also said that it was unclear whether one or all of the requirements
10
listed in the definition must be met because the definition did “not
consistently say ‘or’ or ‘and’” and used “as well as,” which “seem[ed]
to require all requirements to be met after that phrase.” The court
noted that the County had argued during the hearing that the
proposed QuikTrip’s entrances with large turning radiuses, raised
canopy, scales, 14 parking spaces, and large area for trucks were
indicia of a truck stop, but that none of those standards were set
forth in the “truck stop” definition. The order did not expressly
mention the County’s arguments that the lawsuit was barred by res
judicata and that the court should not consider the vagueness
challenge because the Owners had not properly raised it.7
This Court granted the County’s application for a discretionary
appeal to determine whether the superior court erred by ruling that
the “truck stop” definition was unconstitutionally vague. In its
appeal, the County contends that the Owners’ lawsuit was barred
by res judicata, that the superior court should not have ruled on the
7 The superior court also denied the Owners’ claim for attorney fees as to
all defendants and respondents. That issue is not raised here.
11
merits of the vagueness challenge because the Owners did not
properly raise it, and that the UDO’s definition of a “truck stop” was
not unconstitutionally vague. In their cross-appeal, the Owners
argue that if this Court concludes that the vagueness challenge was
not properly raised, the superior court erred by dismissing the
Owners’ claims for a declaratory judgment and an injunction related
to their vagueness challenge.
As we explain below, res judicata did not bar the Owners’
lawsuit, so we affirm that part of the superior court’s judgment. As
for the Owners’ vagueness challenge, we can assume without
deciding that it was properly raised, because we conclude on the
merits that the superior court erred by determining that the “truck
stop” definition was unconstitutionally vague; we therefore reverse
that part of the court’s judgment. Based on these holdings, we
remand the case to the superior court for it to rule on the Owners’
certiorari claim that the Board of Adjustment’s decision affirming
the denial of the permit was not supported by substantial evidence.
See OCGA § 5-4-12 (b) (“The scope of [certiorari] review shall be
12
limited to all errors of law and determination as to whether the
judgment or ruling below was sustained by substantial evidence.”).
Because we decide the merits of the Owners’ vagueness challenge in
the County’s appeal, it is unnecessary to address the Owners’ cross-
appeal, which we dismiss as moot. See, e.g., Morgan County v. May,
305 Ga. 305, 309 n.5 (824 SE2d 365) (2019); Humphrey v. Walker,
294 Ga. 855, 856 (757 SE2d 68) (2014).8
2. The County contends that the Owners’ entire lawsuit was
barred by res judicata. If that were true, then the superior court
should not even have addressed the Owners’ vagueness challenge.
But the County’s res judicata claim is meritless.
The doctrine of res judicata prevents “‘the re-litigation of all
8 The Owners also contend that the superior court erred by rejecting their
claim that the UDO as a whole was invalid because it was not attached to or
incorporated by reference in the minutes of the November 2006 County Board
of Commissioners meeting at which it was adopted. See footnote 2 above. But
the Owners raise this argument only in their response brief in the County’s
appeal, rather than properly enumerating it in their cross-appeal, and it is not
material to the issues raised by the County, so we do not address it. See Floyd
v. Floyd, 291 Ga. 605, 605 n.1 (732 SE2d 258) (2012) (“[A]n appellee ordinarily
must file a cross-appeal to preserve a claim of error, except when the claim of
error is material to, and intertwined with, a claim of error properly raised by
the appellant.”).
13
claims which have already been adjudicated, or which could have
been adjudicated, between identical parties or their privies in
identical causes of action.’” Bostick v. CMM Properties, Inc., 297 Ga.
55, 57 (772 SE2d 671) (2015) (citation omitted). “[T]hree
prerequisites must be satisfied before res judicata applies – (1)
identity of the cause of action, (2) identity of the parties or their
privies, and (3) previous adjudication on the merits by a court of
competent jurisdiction.” Coen v. CDC Software Corp., 304 Ga. 105,
112 (816 SE2d 670) (2018). See also OCGA § 9-12-40 (“A judgment
of a court of competent jurisdiction shall be conclusive between the
same parties and their privies as to all matters put in issue or which
under the rules of law might have been put in issue in the cause
wherein the judgment was rendered until the judgment is reversed
or set aside.”). We have explained that “cause of action” means “the
entire set of facts which give rise to an enforceable claim[,] with
special attention given to the ‘wrong’ alleged.” Coen, 304 Ga. at 112
(citations and punctuation omitted).
In this case, the record shows that in August 1999 – more than
14
seven years before the UDO, which contains the “truck stop”
definition at issue in this case, was adopted – the Owners filed a
petition for mandamus and declaratory relief against the County
and, in their official capacities, the members of the Board of
Commissioners and the Director of the Department of Public
Services and Engineering. The Owners claimed that on July 22,
1999, they submitted an application for a land disturbance permit
to construct a “travel plaza” on their property. Five days later, on
July 27, the Board of Commissioners amended the zoning ordinance
that was then in effect, which apparently did not include “travel
plazas” or “truck stops” in its table of permitted uses for any zoning
district, to allow truck stops only in M-2 zones. 9 On July 30, the
County returned the Owners’ permit application, noting that it was
“not acceptable for review,” and informed them that they would need
to rezone the property before resubmitting the application.
9 The record in this case does not contain a copy of the original or
amended zoning ordinances that were at issue in the 1999 case, and there is
no reference to an express definition of “truck stop” in the documents relating
to the 1999 case that are in the record here.
15
The Owners then sought a writ of mandamus compelling the
defendants to review their application under the pre-amendment
zoning ordinance that was in effect when the application was
submitted, as well as a declaratory judgment that their application
must be reviewed in accordance with the former ordinance, that a
travel plaza was a permitted use under the former ordinance, and
that the amendment to the former ordinance was invalid because it
was improperly adopted. The Owners also asserted that if the travel
plaza was not a permitted use under the former ordinance, the
County’s prohibiting travel plazas and truck stops in all zoning
districts was unconstitutional and the ordinance was not equally
enforced. The defendants argued in response that a travel plaza was
not a permitted use in zone C-2 under the former ordinance because
it was not listed in the table of permitted uses and that the Owners’
application was incomplete and omitted required information.
In September 1999, the superior court denied mandamus
relief, ruling that the defendants did not abuse their discretion in
returning the Owners’ application, as it was incomplete. In
16
December 1999, the court also denied the Owners’ request for a
declaratory judgment, concluding that because they had not
resubmitted their application, there was no justiciable controversy.
In early 2000, this Court denied the Owners’ application for a
discretionary appeal and dismissed their direct appeal from the
superior court’s orders.
Although the Owners’ 1999 lawsuit and this case both relate to
their seeking a permit to construct a facility on their same property,
the two lawsuits are based on different sets of operative facts and
different alleged wrongs. See Coen, 304 Ga. at 113. In the 1999
lawsuit, the Owners claimed that their application for a permit to
build a “travel plaza” should be reviewed under a different zoning
ordinance that was in effect many years before the UDO was
enacted, that a travel plaza was permitted under the former
ordinance, that an amendment to the former ordinance was invalid,
and that parts of the former ordinance were unconstitutional (for
reasons other than vagueness). The former ordinance and
amendment apparently did not expressly define or expressly
17
prohibit “truck stops.” In this case, the Owners claimed, in pertinent
part, that their application for a permit to build a facility on the
property was improperly denied under the express prohibition
against “truck stops” in the UDO, which was adopted more than
seven years after the 1999 lawsuit, and that the “truck stop”
definition in the UDO was unconstitutionally vague.
Accordingly, the lawsuits involved different causes of action,
and the County’s argument fails at the first part of the res judicata
test. See id. at 113. See also Haley v. Regions Bank, 277 Ga. 85, 91
(586 SE2d 633) (2003) (explaining that two causes of action were not
identical for res judicata purposes because the prior action and the
current lawsuit depended on a substantially different set of facts
and involved questions that arose after and were not settled by the
Court’s decision in the prior action). Cf. Shelley v. Town of Tyrone,
302 Ga. 297, 308 n.15 (806 SE2d 535) (2017) (explaining that the
superior court correctly ruled that the plaintiff’s challenges to the
town’s 1997 zoning ordinance and 2004 zoning amendment were
barred by res judicata or collateral estoppel, because the plaintiff
18
had filed an unsuccessful prior lawsuit challenging that particular
ordinance and amendment, but leaving open the question of whether
the plaintiff could challenge the town’s 2015 zoning ordinance).
3. The County also contends that the superior court erred by
ruling on the merits of the vagueness challenge because the Owners
did not properly raise it, and that even if the challenge was properly
raised, the UDO’s definition of a “truck stop” was not
unconstitutionally vague in violation of the due process provision of
the Georgia Constitution. We need not decide whether the
vagueness challenge was properly raised, because the Owners have
not shown that the “truck stop” definition was unconstitutionally
vague. 10
10 In the superior court and in this Court, the Owners have challenged
the “truck stop” definition only under the due process clause of the Georgia
Constitution, asserting no claim under the similarly worded provision in the
Fourteenth Amendment to the United States Constitution. But the Owners
(along with the County, and the superior court in analyzing the claim) cite no
cases in which this Court clearly decided a vagueness claim based solely on the
Georgia Constitution. Indeed, it appears that our vagueness cases all address
claims brought under the United States Constitution or both the United States
and Georgia constitutions, or just refer to a “constitutional” claim (as if which
constitution was involved would not matter), and they then cite either United
States Supreme Court decisions interpreting the federal constitution or
19
(a) As we have explained before, “[t]o withstand an attack of
Georgia decisions tracing back to such federal opinions. See, e.g., In re D.H.,
283 Ga. 556, 556-557 (663 SE2d 139) (2008) (saying only that the appellant
contended that a criminal statute was “unconstitutionally vague,” without
identifying whether the claim was raised under the United States or Georgia
constitution, and citing mostly federal cases); 105 Floyd Rd., Inc. v. Crisp
County, 279 Ga. 345, 347-350 (613 SE2d 632) (2005) (analyzing a claim that a
provision in a county ordinance was unconstitutionally vague “under the due
process clauses of the Georgia and United States constitutions” and citing
mostly federal cases).
It may be that the “due process” guaranteed by the Georgia and federal
constitutions is identical in this context, although it appears that none of this
Court’s decisions have engaged in the sort of careful analysis of the
comparative language, history, and context of the two constitutional provisions
at issue that would be needed to confidently reach that conclusion. See State v.
Turnquest, 305 Ga. 758, 769-770 & n.8 (827 SE2d 865) (2019) (discussing this
issue in a different due process context). See also Harvey v. Merchan, 311 Ga.
811, 825 n.13 (860 SE2d 561) (2021) (“Of course, the United States Supreme
Court’s construction of a federal constitutional provision does not bind our
construction of a similar Georgia constitutional provision, which must be
construed independently in the light of the Georgia provision’s text, context,
and history.”).
But we need not delve further into this question to decide this case. The
Owners make no argument that the Georgia Constitution provides more
protection against vague laws than does the United States Constitution, and if
the Georgia Constitution provides the same or less protection and the Owners’
vagueness claim fails under the federal standard – as it does – then it would
fail under the Georgia standard as well. See Maxim Cabaret, Inc. v. City of
Sandy Springs, 304 Ga. 187, 195 (816 SE2d 31) (2018) (Peterson, J.,
concurring) (emphasizing the need for separate analysis of analogous Georgia
and federal constitutional provisions but explaining that, “[a]s the Court’s
decision explains, [the appellants’] federal claim fails. And [they have] not
articulated a single reason why the Georgia Constitution should be interpreted
as giving them any greater rights than the United States Constitution, and so
their claim under the Georgia Constitution necessarily also fails”).
Accordingly, we will proceed in our analysis in reliance on the existing federal
and heavily-federally-influenced Georgia precedent.
20
vagueness or indefiniteness, a civil [law] must provide fair notice to
those to whom the [law] is directed and its provisions must enable
them to determine the legislative intent.” Daniel v. Amicalola
Electric Membership Corp., 289 Ga. 437, 443 (711 SE2d 709) (2011)
(citation and punctuation omitted). Thus, only when an ordinance is
“so vague that persons of common intelligence must necessarily
guess at its meaning and differ as to its application” does it violate
due process. Edwards v. City of Warner Robins, 302 Ga. 381, 386
(807 SE2d 438) (2017) (citation and punctuation omitted). Like
statutes, ordinances are presumed to be constitutional, and the
burden of proving a due process violation is on the party raising the
vagueness challenge. See Zarate-Martinez v. Echemendia, 299 Ga.
301, 305 (788 SE2d 405) (2016). See also Jones v. City of Marietta,
248 Ga. 773, 773 (285 SE2d 730) (1982). “‘[E]very reasonable
construction must be resorted to, in order to save [an ordinance]
from unconstitutionality.’” Ga. Dept. of Community Health v.
Northside Hospital Inc., 295 Ga. 446, 448 (761 SE2d 74) (2014)
(citation omitted). See also Warshaw v. City of Atlanta, 250 Ga. 535,
21
536 (299 SE2d 552) (1983). Moreover, there is generally a greater
tolerance of uncertainty in “‘enactments with civil rather than
criminal penalties[,] because the consequences of imprecision are
qualitatively less severe.’” Daniel, 289 Ga. at 443 (citation omitted).
See also Village of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 498 (102 SCt 1186, 71 LE2d 362) (1982) (noting
that “economic regulation is subject to a less strict vagueness test”).
The interpretation of a statute or ordinance and the determination
of whether such a law is unconstitutionally vague are questions of
law that we review de novo on appeal. See Jenkins v. State, 284 Ga.
642, 645 (670 SE2d 425) (2008).
The Owners argue in this Court, as they did in the superior
court, that the “truck stop” definition in the UDO was
unconstitutionally vague on its face. And the superior court’s order,
particularly when construed in light of the court’s oral ruling,
appears to decide only that facial challenge, without expressly
addressing whether the definition was vague as applied to the
Owners’ proposed QuikTrip. As we have repeatedly made clear,
22
however, “‘[v]agueness challenges . . . that do not implicate First
Amendment freedoms must be examined in the light of the facts of
the case to be decided.’” Wilbros, LLC v. State, 294 Ga. 514, 520 (755
SE2d 145) (2014) (quoting Parker v. City of Glennville, 288 Ga. 34,
35 (701 SE2d 182) (2010)). Accord Village of Hoffman Estates, 455
U.S. at 495 n.7. “In other words, outside of the First Amendment
context, if a challenger’s as-applied vagueness challenge fails, then
his facial challenge also fails.” Smallwood v. State, 310 Ga. 445, 447
(851 SE2d 595) (2020). “‘A court should therefore examine the
complainant’s conduct before analyzing other hypothetical
applications of the law.’” Catoosa County v. R.N. Talley Properties,
LLC, 282 Ga. 373, 375 (651 SE2d 7) (2007) (quoting Village of
Hoffman Estates, 455 U.S. at 495). See also State v. Raybon, 242 Ga.
858, 862 (252 SE2d 417) (1979) (rejecting the defendant’s facial
vagueness challenge to a criminal trespassing statute that
implicated no constitutionally protected conduct, in part because the
defendant presented no evidence that the statute was vague as
applied to him and he did “not have standing to raise the rights of
23
other persons as to whom the statute may have been
unconstitutionally applied”).
The Owners’ vagueness challenge implicates no speech
protected by the First Amendment. Thus, the superior court should
have determined whether the “truck stop” definition in the UDO was
unconstitutionally vague as applied to the Owners’ proposed use of
their property before the court considered whether the definition
was vague on its face.11 As we explain below, the Owners have not
11 Whether a law “abuts upon sensitive areas of basic First Amendment
freedoms [and] operates to inhibit the exercise of those freedoms” is a
consideration in determining whether the law is unconstitutionally vague.
Grayned v. City of Rockford, 408 U.S. 104, 109 (92 SCt 2294, 33 LE2d 222)
(1972) (cleaned up). The superior court cited Grayned and similar cases,
including 105 Floyd Rd., 279 Ga. at 347, in its order ruling that the “truck stop”
definition was unconstitutionally vague, but because no protected expression
is at issue in this case, the court relied too heavily on such cases (as do the
Owners).
A distinct legal doctrine – the First Amendment “overbreadth” doctrine
– “prohibits the Government from banning unprotected speech if a substantial
amount of protected speech is prohibited or chilled in the process.” Ashcroft v.
Free Speech Coalition, 535 U.S. 234, 255 (122 SCt 1389, 152 LE2d 403) (2002).
Although the Owners repeatedly asserted in the superior court that the “truck
stop” definition violated due process because it was “overbroad,” they made no
argument concerning the First Amendment, and the UDO’s “truck stop”
provisions do not prohibit any protected speech, much less “a substantial
amount.” Id. See also Holder v. Humanitarian Law Project, 561 U.S. 1, 20 (130
SCt 2705, 177 LE2d 355) (2010) (explaining that a “vagueness challenge does
not turn on whether a law applies to a substantial amount of protected
24
established that the “truck stop” provision was unconstitutionally
vague as applied to the proposed use of their property, so their facial
vagueness challenge also fails.
(b) As we recounted in Division 1 above, at the time the Owners
applied for the land disturbance permit, the UDO defined a “truck
stop” as:
A prohibited use that includes any building, premises, or
land in which or upon which a business, service, or
industry involving the maintenance, servicing, storage, or
repair of heavy trucks and similar commercial vehicles is
conducted or rendered, including the dispensing of motor
fuel or other petroleum products primarily for such heavy
trucks and similar commercial vehicles and the sale of
accessories or equipment for heavy trucks and similar
commercial vehicles, as well as overnight
accommodations, showers, overnight customer parking,
or restaurant facilities for the use of crews of heavy trucks
and similar commercial vehicles.
UDO § 106-1 (c). The Owners’ property plainly constitutes “land” on
which a “business” – the proposed QuikTrip – would be conducted.
We therefore turn to the remainder of the definition.
expression” and that otherwise, the due process vagueness and the First
Amendment overbreadth doctrines “would be substantially redundant”). The
overbreadth doctrine is not applicable to this case.
25
First, to qualify as a “truck stop,” the definition required that
the business “involv[e] the maintenance, servicing, storage, or repair
of heavy trucks and similar commercial vehicles.” Id. In its order
ruling that the “truck stop” definition was unconstitutionally vague,
the superior court concluded that the terms “maintenance” and
“servicing” were ambiguous. The UDO does not define those two
terms, so – as the UDO directs – we look to their definitions in “a
recent edition of the Merriam-Webster Dictionary,” UDO § 106-1 (b)
(4), construed in the context of the “truck stop” definition. 12 As
12 Because the UDO containing the “truck stop” definition at issue was
enacted in 2006, we cite the 2006 edition of Merriam-Webster’s Dictionary and
Thesaurus (“Merriam-Webster’s”). To show that these are commonplace
definitions of the pertinent words, we also cite the 2007 edition of another
widely used dictionary, the Webster’s New World College Dictionary
(“Webster’s”).
The County argues at one point that “[b]ecause the phrase ‘truck stop’
has a commonly understood meaning that clearly applies to the Owners’
facility, it is not unconstitutionally vague.” But where a term is specifically
defined in a law, we must apply that definition, not interpret the term as if it
was not expressly defined. Indeed, the UDO expressly states that “[w]hen no
definitions are provided within an individual chapter, article, or section of the
UDO, words and phrases used in the UDO shall have the meaning established
by the definitions provided in [Section 106-1 (c), where the “truck stop”
definition is located],” and that “[a]ll remaining words used in the UDO are
intended to have the commonly accepted definitions contained in a recent
edition of the Merriam-Webster Dictionary.” UDO § 106-1 (b) (2) & (4)
(emphasis added).
26
defined in Merriam-Webster’s, in this context “maintenance” refers
to “the act of maintaining” and “maintain” means “to keep in an
existing state (as of repair).” See also Webster’s (defining
“maintenance” specifically as “the work of keeping a building,
machinery, etc. in a state of good repair”). Merriam-Webster’s
defines “servicing” in this context as “to do maintenance or repair
work on or for.” See also Webster’s (defining “servicing” as “to make
or keep fit for service, as by inspecting, adjusting, repairing,
refueling, etc.”).
In light of these defined and commonly accepted meanings, the
“truck stop” definition sufficiently informed a person of ordinary
intelligence that to constitute a “truck stop,” a business must
involve, among other things, the maintenance (i.e., keeping in a
state of repair), servicing (i.e., doing repair work, such as by
inspecting, adjusting, repairing, or refueling), storage, or repair of
heavy trucks and similar commercial vehicles. Thus, the superior
court incorrectly concluded that the words “maintenance” and
“servicing” were impermissibly vague on their face.
27
Following the requirement that a “truck stop” involve the
maintenance, servicing, storage, or repair of heavy trucks and
similar commercial vehicles, the “truck stop” definition listed
several other requirements, which all appear in a lengthy phrase
after the word “including.” To begin with, we generally read the
word “including” in this context – following a general phrase and
preceding a litany of specific terms – as introducing an exhaustive
list of requirements rather than just some illustrative examples. See
Premier Health Care Investments, LLC v. UHS of Anchor, L.P., 310
Ga. 32, 42-44 (849 SE2d 441) (2020). See also Merriam-Webster’s
(defining “include” as “to take in or comprise as a part of a whole”).
Indeed, the UDO uses the phrase “including but not limited to” in
other provisions as a means of introducing non-exhaustive
examples. See, e.g., UDO §§ 106-1 (c) (defining “Canopy” in pertinent
part as “[a] roof structure constructed of rigid materials, including
but not limited to, metal, wood, concrete, plastic or glass, which is
attached to and supported by a building” (emphasis added)); 302-44
(“A land disturbance permit shall be issued to authorize all activities
28
associated with development activity; including, but not limited to,
clearing and grubbing, grading and the construction of such
improvements as streets, surface parking areas and drives,
stormwater drainage facilities, sidewalks, or other structures
permanently placed on or in the property except for buildings, signs
or other structures requiring the issuance of a building permit.”
(emphasis added)).
The superior court concluded that an ordinary person could not
discern whether one, all, or some combination of the listed
requirements in the phrase following “including” must be met,
because the phrase uses the words “and,” “as well as,” and “or.” But
the words “and” and “as well as” are normally understood in a
conjunctive sense, and the context of the “truck stop” definition does
not suggest a contrary interpretation. See Merriam-Webster’s
(defining “and” as “used to indicate connection or addition
esp[ecially] of items within the same class or type or to join words or
phrases of the same grammatical rank or function”; and defining “as
well as” as “and in addition” and “in addition to”). See also Webster’s
29
(defining “and” as “in addition; also; as well as”; and defining “as
well as” as “in addition to”); Crooks v. Harrelson, 282 U.S. 55, 58 (51
SCt 49, 75 LE 156) (1930) (construing the word “and” between two
phrases in a tax statute to mean “not one or the other, but both” and
concluding, “[w]e find nothing in the context or in other provisions
of the statute which warrants the conclusion that the word ‘and’ was
used otherwise than in its ordinary sense”).
Conversely, the word “or” normally “indicate[s] an alternative,”
as Merriam-Webster’s explains. See also Webster’s (defining “or” as
“a coordinating conjunction introducing an alternative” such as
“introducing any of the possibilities in a series, but usually used only
before the last”); Gearinger v. Lee, 266 Ga. 167, 169 (465 SE2d 440)
(1996) (explaining that “or” is naturally understood as a “disjunctive
term” that “mark[s] an alternative and present choice” and “where
a legislative provision is phrased in the disjunctive, it must be so
construed absent a clear indication that a disjunctive construction
is contrary to the legislative intent” (citation and punctuation
omitted)). In sum, an ordinary speaker of the English language
30
generally would not say that “or” is equivalent to “and” or “as well
as.”
Applying these commonly understood meanings as they appear
in the context of the phrase beginning with “including” in the “truck
stop” definition, an ordinary person would understand that the word
“and” signifies that a “truck stop” must include the dispensing of
motor fuel or other petroleum products primarily for heavy trucks
and similar commercial vehicles in addition to the sale of accessories
or equipment for such trucks and vehicles. The next term, “as well
as,” precedes a list of four distinct alternatives connected by the
word “or,” indicating that in addition to the dispensing and sale
requirements, a “truck stop” must have at least one of those
alternatives: overnight accommodations, showers, overnight
customer parking, or restaurant facilities for the use of crews of
heavy trucks and similar commercial vehicles. Accordingly, to
constitute a “truck stop,” the business must: (1) involve the
maintenance, servicing, storage, or repair of heavy trucks and
similar commercial vehicles; (2) dispense motor fuel or other
31
petroleum products primarily for heavy trucks and similar
commercial vehicles; (3) sell accessories or equipment for heavy
trucks and similar commercial vehicles; and (4) provide at least one
of the following – overnight accommodations, showers, overnight
customer parking, or restaurant facilities for the use of crews of
heavy trucks and similar commercial vehicles.
Finally, the superior court concluded that the terms “similar
commercial vehicles,” “restaurant facilities,” “primarily,” and “the
sale of accessories or equipment for heavy trucks and similar
commercial vehicles” were ambiguous. But as noted in Division 1
above, the UDO clearly defines “Vehicle, commercial” and
“Restaurant.” See UDO § 106-1 (c). And “primarily” means “for the
most part.” Merriam-Webster’s. See also Webster’s (defining
“primarily” as “mainly; principally”). As many courts have held, the
use of that qualitative word does not render a law impermissibly
vague. See, e.g., United States v. Gibson, 998 F3d 415, 419-420 (9th
Cir. 2021) (“The phrase ‘primarily used by children’ is not
indeterminate.”); In re Kelly, 841 F2d 908, 916 (9th Cir. 1988) (“[T]he
32
modifier “primarily” is not a word that is ambiguous or difficult to
understand.”); Pizza di Joey, LLC v. Mayor of Baltimore, 235 A3d
873, 907 (Md. 2020) (holding that “primarily engaged in” has a
“generally accepted meaning[]”). Similarly, there is no mystery in
the requirement that a “truck stop” sell “accessories or equipment
for heavy trucks and similar commercial vehicles.” See Merriam-
Webster’s (defining “accessory” in this context as “something helpful
but not essential”; and defining “equipment” as “things used in
equipping: outfit,” and “equip” as “to supply with needed resources”
and “to make ready: prepare”). See also Webster’s (defining
“accessory” as “a piece of optional equipment for convenience,
comfort, appearance, etc.”; and defining “equipment” as the special
things needed for some purpose; supplies; furnishings; apparatus,
etc.”); UDO § 106-1 (c) (defining “Truck, heavy” and “Vehicle,
commercial”).
Thus, the pertinent definition of a “truck stop,” construed in
light of the terms defined in the UDO and in the dictionary it points
to as well as the tools we customarily use when interpreting legal
33
texts, is comprehensible. To be sure, the definition could have been
more artfully drafted – as the revamped definition enacted after the
superior court’s order illustrates, see footnote 3 above – but “an
ordinance need not regulate with mathematical certainty to comport
with due process.” Burton v. Glynn County, 297 Ga. 544, 548 (776
SE2d 179) (2015) (citation and punctuation omitted). See also JIG
Real Estate, LLC v. Countrywide Home Loans, Inc., 289 Ga. 488, 492
(712 SE2d 820) (2011) (“Where the legislative intent is clear and the
statute provides fair notice of its meaning, this Court will not deem
a statute unconstitutionally vague merely because it ‘could be more
artfully drafted.’” (citation omitted)). And although it may be
difficult in this case to determine whether the proposed QuikTrip
meets the requirements of the “truck stop” definition, the fact that
a case is close does not render an ordinance unconstitutionally
vague.
The uncertainty in a statute which will amount to a
denial of due process of law is not the difficulty of
ascertaining whether close cases fall within or without
the prohibition of the statute, but whether the standard
established by the statute is so uncertain that it cannot
34
be determined with reasonable definiteness that any
particular act is disapproved[.]
Briggs v. State, 281 Ga. 329, 330 (638 SE2d 292) (2006) (citation and
punctuation omitted). See also United States v. Williams, 553 U.S.
285, 306 (128 SCt 1830, 170 LE2d 650) (2008) (explaining that
“[c]lose cases can be imagined under virtually any statute. The
problem that poses is addressed, not by the doctrine of vagueness,
but by the requirement of proof”); Banta v. State, 281 Ga. 615, 617
(642 SE2d 51) (2007) (noting that “‘the fact that application of the
statute’s standards sometimes requires an assessment of the
surrounding circumstances to determine if the statute is violated
does not render it unconstitutional’” (citation omitted)).13
The Owners argue that there are a variety of hypothetical
13 As the superior court noted in its order, in arguing that the “truck stop”
definition was not vague, the County confusingly asserted that the proposed
QuikTrip clearly fell within the definition because the QuikTrip had certain
features that were not expressly mentioned in the definition, like a raised
canopy and weigh scales. But the County’s reliance on features that were not
listed in the “truck stop” definition did not render the definition vague; instead,
it could suggest that the Board of Adjustment’s decision that the Owners’
proposed facility qualifies as a “truck stop” was not supported by substantial
evidence. That issue, as we discuss below in Division 4, is for the superior court
to determine in the first instance.
35
scenarios to which the “truck stop” definition may be less intelligibly
applied. For example, in arguing that the term “maintenance” is
vague, the Owners posit that the “truck stop” definition would be
unconstitutional if applied to a farmer who used his barn to change
a tire on his dual rear-axle pickup truck because the pickup truck
would be a “heavy truck” as defined by the UDO and changing the
tire would amount to “maintenance.” The superior court similarly
posed questions about hypothetical situations to illustrate its
conclusion that “maintenance” was indefinite, asking, “If you add a
quart of oil[,] are you ‘maintaining’ your [pickup] truck?” These
abstract scenarios and questions fail to construe the term
“maintenance” in light of its commonly accepted definition or within
the context of the entire “truck stop” definition, as we have
interpreted it above.
But in any event, the Owners’ (and the superior court’s)
reliance on hypotheticals is of no avail, because the Owners have not
identified any aspect of the proposed use of their own property – the
specific QuikTrip proposal at issue in this case – to which the
36
definition of “truck stop,” as properly interpreted, cannot be
intelligibly applied and would instead require pure guesswork at its
meaning. See Holder v. Humanitarian Law Project, 561 U.S. 1, 22-
23 (130 SCt 2705, 177 LE2d 355) (2010) (rejecting the plaintiffs’ as-
applied vagueness challenge to a criminal statute where they argued
in part that certain statutory definitions would be difficult to apply
in hypothetical situations, because even if there might be
“theoretical doubts” regarding the definitions, the plaintiffs’ “‘case
present[ed] no such problem,’” so the plaintiffs could not “seek refuge
in imaginary cases” (citation omitted)). See also Catoosa County, 282
Ga. at 375; Raybon, 242 Ga. at 862. Indeed, even though the Owners
may disagree with the conclusion reached by the Board of
Adjustment that their proposed use of the property constituted a
“truck stop,” the Owners do not assert that the definition of a “truck
stop” was impermissibly vague as applied to their proposal.
In sum, the UDO’s “truck stop” definition provided fair notice
to the Owners of the sort of facilities that were prohibited. The
Owners have not established that the “truck stop” definition was
37
unconstitutionally vague as applied to their proposed QuikTrip, and
the superior court therefore erred by concluding that the definition
was vague on its face. See Smallwood, 310 Ga. at 447. Accordingly,
we reverse that part of the court’s judgment.
4. Because we have concluded that the Owners’ lawsuit was not
barred by res judicata and that the applicable “truck stop” definition
in the UDO was not unconstitutionally vague, we remand the case
for the superior court to rule on the Owners’ certiorari claim that the
Board of Adjustment’s decision affirming the denial of the permit
was not supported by substantial evidence. We express no opinion
on that issue.
Judgment affirmed in part and reversed in part in Case No.
S21A0718, and case remanded with direction. Appeal dismissed in
Case No. S21X0719. All the Justices concur, except Ellington, J., who
dissents as to Division 3.
38
ELLINGTON, Justice, dissenting in part.
The majority opinion does a fine job of deconstructing the
section of the version of the Unified Development Ordinance
applicable to these property owners that defines “truck stop,”
Section 106-11, and reconstructing it for clarity. On remand, the
superior court will consider whether, under the majority opinion’s
construction of the applicable version of the ordinance, the Board of
Adjustment’s decision to affirm the denial of the permit on the basis
that the owners’ planned QuikTrip station constitutes a truck stop,
which is a prohibited use under Section 214-11 of the ordinance,
was “sustained by substantial evidence.” The owners may yet
prevail.
Be that as it may, in resolving the owners’ constitutional
challenge to the ordinance, the superior court was tasked with
deciding whether the applicable iteration of the ordinance
sufficiently informed a person of ordinary intelligence whether a
proposed use of property was an otherwise-permissible gasoline
39
station with a convenience store or whether it was instead an
impermissible truck stop. Due process demands that Rockdale
County’s truck stop ordinance be sufficiently plain so that the
County’s Department of Planning and Development could render a
decision about whether to permit the owners’ intended use of their
property that was not arbitrary or discriminatory and so that the
County’s Board of Adjustment could fairly review the denial of a
permit. 14 The record shows that the Board of Adjustment affirmed
the department’s denial of the owners’ application for a permit
solely on the basis that the owners’ intended use of their property
14 See Morgan County v. May, 305 Ga. 305, 307 (2) (824 SE2d 365) (2019)
(“To satisfy due process, a challenged statute or ordinance must give a person
of ordinary intelligence fair warning that specific conduct is forbidden or
mandated and provide sufficient specificity so as not to encourage arbitrary
and discriminatory enforcement.” (citation and punctuation omitted));
Stanfield v. Glynn County, 280 Ga. 785, 787 (2) (631 SE2d 374) (2006) (Where
regulation of owners’ use of their land is vague and ambiguous, the ambiguities
in the language employed in an ordinance must be resolved in favor of the free
use of property.); 105 Floyd Road, Inc. v. Crisp County, 279 Ga. 345, 348 (613
SE2d 632) (2005) (Zoning ordinances, like any legislation, “must be definite
and certain to be valid, and when it is so vague and indefinite that persons of
common intelligence must necessarily guess at its meaning and differ as to its
application, it violates the first essential of due process of law.” (citation and
punctuation omitted)).
40
constituted a truck stop, as defined in Section 106-11.15 After
hearings, the superior court sitting as a court of review of the
administrative decision determined that the ordinance then in
effect was not sufficiently plain for the officials who are responsible
for deciding whether to permit the owners’ intended use of the
property to fairly decide whether the intended use constituted a
truck stop. 16 Seeing the tortured path the majority opinion takes to
15 The Department of Planning and Development’s initial review of the
owners’ proposed QuikTrip development reflected that the Planning
Department’s overall analysis was “[Section] 214-11 – The use is prohibited,”
with additional comments about signage and lighting, but with no explanation
of how the proposed development constituted a prohibited use. Similarly, the
Zoning Department’s review of the owners’ proposed QuikTrip development
contained the analysis that “[Section] 214-11 – The proposed use is prohibited,”
with citations to other code sections about required signage, landscaping, state
permits for underground tanks, etc., that did not relate to the truck stop
classification, but with no explanation of how the development constituted a
prohibited use. The permit was denied. The Director of Planning and
Development upheld that decision, and the Board of Adjustment affirmed,
stating only that the Board “rendered a decision to affirm the administrative
decision of the Planning and Development Director to uphold the denial of the
land disturbance permit due to the prohibition of ‘Truck Stops’ in Section 214-
11 of the Rockdale County Unified Land Development Code.”
16 The superior court determined that the definition of a truck stop was
vague and ambiguous, based on certain terms used in Section 106-11, such as
“similar commercial vehicle” and “servicing,” that in context could have
different meanings, and based on the inconsistent use of “and,” “as well as,”
“or,” etc., to connect or distinguish the definitional terms. Because of this, the
superior court concluded that the truck stop ordinance left the “citizen property
owner . . . to guess at the requirements of this ordinance. Is one requirement
41
impose clarity on the applicable version of the ordinance, I find the
superior court’s assessment to be persuasive.17 If it takes, not just
lawyers, which many of the local officials charged with making
these decisions on a regular basis are not, but constitutional legal
scholars, so much research and analysis to decide whether, and to
explain why, an ordinance is not vague and ambiguous, perhaps we
should not be so willing to override the superior court’s decision to
the contrary.
In my view, the superior court’s analysis was sound and should
not be disturbed. Therefore, I respectfully dissent as to Division 3.
enough? If not, how many are required? Are all requirements to be met?” The
superior court concluded that the ordinance “as written is the antithesis of
ascertainable standards[,]” which are “required to impair the free use of
property by a landowner[,]” and that the ordinance left the enforcement of the
zoning limitations “to the discretion of county officials.” The superior court
ruled that the ordinance “contains insufficient objective standards and
guidelines to meet the requirements of due process.” Not only is the ordinance
legally ambiguous, subject to multiple interpretations, and susceptible to
arbitrary enforcement, the superior court concluded, “it fails the test of
common sense.”
17 I take no issue with the majority opinion’s reference to dictionaries to
determine the commonly accepted meaning of words not specifically defined in
the ordinance. But it cannot be contradicted that the plainest of words can,
quite unintentionally, be structured into sentences and paragraphs that are
genuinely confusing.
42