PAULDINGCOUNTY  PUBLIC HEARING  0U  -BOARD of COMMISSIONERS  ZONING BOARD OF APPEALS  5:30 P.M.  DECEMBER 10, 2024    PAULDING COUNTY ZONING BOARD OF APPEALS  December 10, 2024  5:30 P.M. at the Watson Government Complex, 240 Constitution Blvd.,  Dallas, GA in the 2nd Floor B.O.C. Meeting Room  AGENDA  1. Review minutes from November 12, 2024 meeting.  Agenda item TABLED from the November meeting:  2. 2024-08-V (APPEAL): Application by BLOOM PARIAMILLPmgusting to appeal the Community Development Director's August 8, 2024 decision denying vested rights entitling Pinehill Investments, LTD from Ordinance 2024-05 for PRD (Planned Residential Development) Sheffield Highlands North. Property is located in Land Lots 1019-1022 & 1067-1070; District 3; Section 3; located along the east sides of Shady Grove Church Road.  POST4.    APPLICATION  2024-08-V (APPEAL)    BLOOM PARHAM  SimonH. Bloom sbloom@bloom- law.com 404-577-7710  September 5, 2024  SEP -5 RECD  VIA] EMAILANDI HANDDELIVERY amm.tppmamn@paulding.gou) Gphilipnetrelagfmacom, Ann Lippmann Community Development Director Paulding County 240 Constitution Boulevard Dallas, Georgia30132 Zoning Board of Appeals Paulding County c/oAnn Lippmann 240 Constitution Boulevard Dallas, Georgia30132 VIA EMAIL Gphillips@trc-lau/irm.com) Jayson Phillips, Esq. Talley, Richardson & Cable 367 West Memorial Drive P.O. Box 197 Dallas, Georgia30132  Re: Vested Rights Entitling Pinehill Investments, LTD ("Pinehill") to Exemption from Ordinance 2024-05 for Sheffield Highlands North (the  "Property")  Dear Ms. Lippmann, Mr. Phillips, and the Zoning Board of Appeals:  This firm represents Pinehill with respect to the above-referenced matter. We are in receipt of Ms. Lippmann's letter dated August 8, 2024, finding that the Property is subject to Ordinance 2024-05 (the "Ordinance"). The Ordinance conflicts with Pinehill's vested rights, and therefore cannot be applied to the Property. Please consider    Bloom Parham, LLP 9771 Ponce del Leon Ave., NE  Allanta, Georgia 30306  404.577.7710 phone  404.577.7715 fax  www.bloom-law.com    Ann Lippmann Zoning Board of Appeals Jayson Phillips Page 2  this letter as Pinehill's written notice of appeal of the Decision pursuant to Unified I. The Decision is an) Erroneous ApplicationofGeongia Law. Brown v.Carson, 313 Ga. 621 (2022) have been met." This finding is incorrect.  Development Ordinance ("UDO") Section 290-40.01.  The Decision is based on the finding that "none of the instances identified in Georgia's body of law governing a landowner's acquisition of vested rights is well developed. A landowner can acquire vested rights to initiate a specific use of a property by: "(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." Brown V. Carson, 313 Ga. 621, 622-23 (2022). The latter two paths to vested rights, formally or informally approved development plans and reliance on official assurances, must be supported by making expenditures or incurring obligations in pursuit of the development. WMM Properties, Inc., 255 Ga. 436, 439. (1986). This case falls squarely within the third category of vested rights, sO the Decision is in error II. Pinehill has Vested Rights to an Exemption from the Ordinance.  and in violation of Georgia law.  A. Facts Establishing Pinehill's Vested Rights.  Pinehill obtained a rezoning of the Property to PRD, which included formal approval of a Site Development Plan for the Property as part of the larger Sheffield Highlands development, to allow for construction of a 1375 lot single-family residential subdivision. Pinehill expended substantial sums to pursue development ofthe Property. As detailed below, in light of the formal approvals, the assurances received from the County, and expenditures toward development oft the Property, Pinehill is entitled to an exception from enforcement of the Ordinance against the Property. The following facts  support Pinehill's entitlement to vested rights for the Development:  In: 2004, Pinehill submitted for Development of Regional Impact review for the entirety of the Sheffield Highlands development, which included the Property.2 GRTA Pinehill believes that the proper method of appeal is pursuant to UDO Section 290-40.01, due to Ms. Lippmann's decision finding that the Ordinance applies. Pinehill's counsel has been instructed by Ms. Marcie Fierro in the Community Development Department that there is not a specific form to use for the Zoning Board of Appeals, and to submit the appeal to the Zoning Board of Appeals using the WAIVER, MODIFICATION and APPEAISAPPLCATION form for the Development Waiver Review Committee. As such, Pinehill has modified that form for submission to the Zoning Board of Appeals. In the event the County determines that the appeal should be considered under the Development Regulation's Section 14.5.1(3), and therefore submitted to the Development Waiver Review Committee, Pinehill requests that  the: appeal be routed via that process. 21 Exhibit 1, DRI Application Summary.    Ann Lippmann Zoning Board of Appeals Jayson Phillips Page3  issued a Notice of Decision on October 18, 2004 approving the DRI.3 In 2020 and 2024, the Northwest Georgia Regional Commission confirmed that no DRI re-review of the project was required.4 All oft the required traffic improvements in the DRI contemplated development ofthe entirety of Sheffield Highlands, including the Property.  Based on the GRTA Notice of Decision, Pinehill and the County entered into a Memorandum of Understanding ("MOU") with the County, which set forth an agreement with respect to the traffic improvements required for Sheffield Highlands and Sheffield Park.5 In the MOU, Pinehill agreed that it and its successors and/or assigns shall pay a maximum of $4,500,000 towards the traffic system enhancements described in the GRTA Notice of Decision. The MOU set forth payment terms based on the number of lots for Sheffield Highlands and Sheffield Park, which totaled 2851 lots. This agreement and representations by the County regarding the number of lots available for the development provided additional assurances for development of the  Property.  On January 25, 2005, the County approved Rezoning case 2005-8-Z which rezoned the Property from R-2 to PRD, with 23 stipulations and allowed for a 1375 lot single-family residential subdivision.6 Through this rezoning, the County formally approved the Site Development Plan for the project and approved the PRD zoning. The Board of Commissioners included in the conditions of the rezoning that the developer  adhere tot the MOU.  In 2018, the County provided a Certificate of Zoning confirming the PRD zoning for the Property and that the DRI review remained in full effect for development of the  properties.7  On April 30, 2021, Pinehill entered into a development agreement with the City of Dallas in order to obtain sewer service for the Sheffield Highlands development.8 Pinehill entered the development agreement for the benefit of the entirety of Sheffield Highlands, ensuring the provision of sewer service to the Property. Under the development agreement, Pinehill paid a nonrefundable fee of $976,790, obligating its successors and assigns to pay a sewer basin fee of $1843 for each additional lot  connected tot the sewer infrastructure improvements.  In reliance on these approvals and agreements, Pinehill sold portions of Sheffield Highlands to D.R. Horton. D.R. Horton obtained a Preliminary Plat for Phase 1-6 of Sheffield Highlands, and then diligently pursued and obtained LDPs for Phases 1-2.9  3E Exhibit 2, Notice of] Decision. 5Exhibit 4, MOU. 7F Exhibit 6, Certificate of Zoning. 81 Exhibit 7, Development Agreement. 91 Exhibit 8, Preliminary Plat.  4E Exhibit 3, January 16, 2020 and March 1, 2024 correspondences.  6 Exhibit 5, Paulding County Board of Commissioners, Board Meeting Minutes, January 25, 2005.    Ann Lippmann Zoning Board of Appeals Jayson Phillips Page4  These documents show lot sizes with minimum lot widths of 56' and lot sizes of 8,000  square feet.  Moreover, the Preliminary Plat for Phases 1-6 requires a boulevard with a right- of-way ofg 94-feet, shown as Jessamine Avenue, in order to connect the southern portion of Sheffield Highlands to the Property. Therefore, the Preliminary Plat for Phases 1-6 expressly contemplates development of the Property as part of the same subdivision. The larger boulevard was required in order to accommodate the traffic to be generated by the additional housing units anticipated for the Property. The required boulevard in the Preliminary Plat for Phases 1-6 can be seen highlighted in red below:     Pinehill is under contract with D.R. Horton to sell the Property in reliance on the prior approved plans and assurances for Sheffield Highlands and the understanding that  the project could be developed consistently, including the Property.  Pinehill has incurred significant expense and taken action in reliance on the County's formal approvals oft the Site Development Plan and other assurances regarding development ofthe Property. Pinehill spent approximately $556,000 in additional costs to date to pursue development of Sheffield Highlands, as well as obligating itself and its successors and assigns to pay the sewer basin fee for sewer access for additional lots  using thei infrastructure.    Ann Lippmann Zoning Board of Appeals Jayson Phillips Page5  B. Pinehill Obtained Formal Approval of the PRD Site Development Plan and As explained above, a landowner can acquire vested rights to initiate a specific use of a property by: (1) obtaining building and other permits, (2) the law in existence at the time a landowner properly files an application for a permit, (3) relying on formally and informally approved development plans, and/or (4) relying on official assurances that a building permit will probably issue. WMM Properties, Inc. V. Cobb Cnty., 255 Ga. 436, 438 (1986). However, formally or informally approved development plans and reliance on official assurances must be supported by making expenditures or incurring obligations in pursuit oft the development. WMM Properties, Inc.. 255 Ga. at 439. For the third category of vested rights--reliance on formally and informally approved development plans-the Georgia Supreme Court's decision in DeKalb Cnty. V. Chapel Hill, Inc., 232 Ga. 238 (1974), is directly on point. In that case, the plaintiff applied for approval ofa Community Unit Development Plan, which included a detailed plan with specific areas for various land uses within the plan. The Community Unit Development Plan was approved by the Board of Adjustments (because a: rezoning was not required by the ordinance at the time), and the plaintiff expended substantial sums in reliance on the Community Unit Development Plan. The Georgia Supreme Court found that this approval and reliance was sufficient to establish the plaintiff's vested rights. The Georgia Supreme Court in WMM, the seminal case on the vested rights  Relied on thatApproval, Entitling Pinehill to Vested Rights.  doctrine in Georgia, cited Chapel Hill for the rule that:  (CRight to Rely on Approved Development Plan. (1) Formally approved. A landowner has a right to develop the property pursuant to a development plan duly approved by the county zoning authority pursuant to powers delegated to it by the county commission even though the development plan varied the existing zoning, where the landowner had expended large sums of money in furtherance of the development and has dedicated land for use as parks and schools in reliance upon its approved  development plan.  WMM Properties, Inc., 255 Ga.at4 438-39.  The Decision fails to appreciate that a rezoning to PRD is necessarily a formal approval of a development plan. Paulding County's PRD section of the UDO makes clear that a rezoning to PRD is formal approval of a development plan. The UDO contains an entire section on "Site Development Plan" requirements, which must be submitted at the time of application to PRD. UDO $ 1-20.08. Importantly, the UDO provides that Iindividual lot and dwelling sizes are to be approved when specific plans are submitted to the governing authority." UDO $ 1-20. Moreover, the UDO provides that [m]ajor deviation from these detailed plans have to be re-submitted to the governing authority for approval." UDO S 1-20. Therefore, the PRD Site Development    Ann Lippmann Zoning Board of Appeals Jayson Phillips  Page 6  Plan is the governing document for a PRD zoned property, which is formally approved  by the Board of Commissioners at thei time of rezoning to PRD.  Pinehill obtained formal approval of the below PRD Site Development Plan  through the rezoning ofthe Property to PRD:  35 MPAN PREAKN 1  TRACTD PROPOSED ZONING" PRD 458.46AC.  Pinehill obtained vested rights in developing the Property as PRD without application of the Ordinance to the Property. Pinehill obtained a formally approved PRD Site Development Plan, obtained DRI approval, and obtained a MOU from the County which was adopted by the Board of Commissioners. The MOU and the PRD zoning provided assurances regarding the permissible lot counts for the Property. D.R. Horton obtained the Preliminary Plat for Phases 1-2 that expressly contemplates a connection to, and development of, the Property. Pinehill relied on these approvals and agreements entering into a contract to sell the Property and expending substantial sums towards its development. For these reasons, Pinehill has vested rights entitling it to  exemption from the application oft the Ordinance to thel Property.  The Decision also ignores that the Property is a part of the same rezoning as Sheffield Highlands Uniti 1 and the same PRD Site Development Plan as Ashton Woods' High Shoals Road project, both of which Ms. Lippmann determined were vested. Therefore, the PRD Site Development Plan is vested. There are no legal grounds to find that a portion ofa PRD Site Development Plan is vested while others are not.    Ann Lippmann Zoning Board of Appeals Jayson Phillips  Page7  I. The Ordinance is Illegal and Unconstitutional.  The Ordinance will eviscerate Pinehill's vested rights. For example, the building design requirements set forth in Section 1-20.09 require side entry garages. This requirement alone will result in an extreme reduction in the number of lots to which Pinehill is entitled to develop under the PRD zoning. The Site Development Plan approved by the County for the Property specifically provides that typical lot sizes include 50' widel lots, 60' widel lots, and 70' widel lots. The Preliminary Plat for Phases 1- 6and the LDP for Phase 1and: 2 include 56' widel lots and minimum lot sizes of 8,000 sf. This lot mix/size is not obtainable as a result of the Ordinance, resulting in the destruction of Pinehill's vested rights. That is because a side entry garage creates substantial issues with both lot width and depth, while also having to account for setbacks and topography. Side entry garages will make the approved lot sizes for the Property's PRD zoning impossible to obtain. Pinehill has a vested interest in developing the Property with smaller lots sizes than are possible with side entry garages due to the zoning pursuant to a specific site development plan and the other County approvals with  smaller lot sizes for Sheffield Highlands.  Moreover, the other design requirements set forth in the Ordinance in Section 1- 20.09 violate Pinehill's vested rights. Pinehill and D.R. Horton determined the price for the sale of the Property based on certain cost calculations for each house. Requiring Pinehill to comply with the design requirements will destroy the budget for the cost of  each house and the economics ofthe entire project.  In addition, it makes no sense to apply the Ordinance to the Property, which is a later phase of the larger Sheffield Highlands development. Applying entirely new design requirements to later phases not only violates Pinehill's vested rights but is entirely contrary to the purported "design" concerns the County has with respect to PRD zoned properties. The Property shares road infrastructure, common amenities, HOA, and other components with the other phases of Sheffield Highlands. To impose different design standards on the Property will result in inconsistent and disjunctive phases of the same development, which cannot conceivably serve the County's purported aesthetic  goals for PRD.  The Ordinance is facially invalid as well. The Ordinance does not provide for any exemption from its provisions based on a parties' vested rights, and it is undisputed that the Ordinance has retroactive application. The PRD zoning category is a historical zoning category for the County, and the Ordinance itself provides that Iclommencing on August 28, 2018, no new applications for rezoning to the PRD Planned Residential Development district will be accepted by the Board of Commissioners." (Ordinance at n. 1). As a result, the Ordinance cannot apply prospectively and only applies retroactively toa already enacted PRD properties. Therefore, the Ordinance violates Article I, Section I, Paragraph X of the Constitution of the State of Georgia. In Southern States-Bartow Cnty., Inc. V. Riverwood Farm Homeowners Ass'n, 300 Ga. 609 (2017), the Supreme  Court of Georgia stated:    Ann Lippmann Zoning Board of Appeals Jayson Phillips  Page 8  Laws prescribe : for the future; they cannot : ordinarily, have a retrospective operation...." OCGAS1-3-5. See also DeKalb Countyv.State, 270 Ga. 776 (1), 512 S.E.2d 284 (1999). Our Constitution prohibits a legislative exercise of the police power that results in the passage of retrospective laws which injuriously affect the "vested rights" of citizens. See, e.g., Recycle & Recover, Inc. V. Georgia Bd. of Natural Resources, 266 Ga. 253 (2), 466 S.E.2d 197 (1996); Hayes V. Howell, 251 Ga. 580 (2) (b), 308 S.E.2d 170 (1983). See also Ga. Const. of 1983, Art. I, Sec. I, Par. X ("No bill of attainder, ex post facto law, retroactive law, or laws impairing the obligation of contract or making irrevocable grant of special privileges or immunities shall be passed."). This prohibition against retroactive impairment of vested rights extends to the enactment of zoning regulations, which is an exercise of police powers. See Michiels V. Fulton County, 261 Ga. 395,397 (2), 405 S.E.2d 40 (1991) ("In regulating zoning, ac county exercises a governmental function, that of its police power."); RCG Properties, LLC V. City of Atlanta Bd. of Zoning Adjustment, 260 Ga.App. 355, 361, 579 S.E.2d 782 (2003) (" TZ]oning power, vested in the county governing authority, is legislative.' ." (Citations omitted.)). However, a law does not operate retrospectively in its legal sense simply 4 'because it relates to antecedent facts, : it [must be] intended to affect transactions which occurred or rights which accrued before it became operative as such, and which ascribe to them essentially different effects, in view of the law at the time of their occurrence. " That is, retrospective operation 4 'takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new liability in respect toi transactions or considerations already past.' " Id. at 611-12. Accordingly, because the Ordinance has retrospective operation and  impairs vested rights, the Ordinance is facially invalid.10  The County did not follow the proper procedures under the Zoning Procedures Law ("ZPL") or procedural due process with respect to the Ordinance. For example, the agendas for the Planning Commission meeting and the Board of Commissioners' Work Session did not provide a draft of the text changes being proposed, SO there was no fair notice of what the County was considering or the opportunity to adequately address the proposed changes at a hearing. The purported "notice" provided in the newspaper was woefully inadequate to give fair notice of what was being proposed by the County. It only provided that there was a public hearing on a text amendment to "Title 2: Zoning and the Appendix oft the Unified Development Ordinance for Paulding County, Georgia."  This description is the equivalent of no notice at all.  10E Beyond thej provisions oft the Ordinance related tol PRDs, the revisionary provisions blatantlyviolate  Southern States.    Ann Lippmann Zoning Board of Appeals Jayson Phillips Pageg  Moreover, at the Board of Commissioners' Work Session, the Board of Commissioners determined to have an offline meeting with Ms. Lippman rather than publicly discuss the amendments to the UDO. Beyond violating the ZPLand procedural  due process, the County's.conduct: violates the Open Meetings Act. the provisions go beyond the County's power to zone.  The Ordinance violates the home rule powers of the Georgia Constitution because The application of the Ordinance to the Property will unreasonably impair and destroy Pinehill's property rights without first paying fair, adequate and just compensation for such rights, in violation of Article I, Section I, Paragraph I of the Constitution of the State of Georgia, Article I, Section III, Paragraph I of the Constitution of the State of Georgia, and the Just Compensation Clause of the Fifth  Amendment tot the Constitution ofthe United States.  The application of the Ordinance to the Property is unconstitutional, illegal, null and void, constituting a taking of Pinehill's property in violation of the Just Compensation Clause of the Fifth Amendment to the Constitution of the United States, Article I, Section I, Paragraph I, and Article I, Section III, Paragraph I of the  Constitution oft the State of Georgia.  The application of the Ordinance to the Property unconstitutionally discriminates, in an arbitrary, capricious, and unreasonable manner, between Pinehill and other similarly situated entities and property owners in violation of Article I, Section I, Paragraph II of the Constitution of the State of Georgia and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United  States.  The application of the Ordinance to the Property constitutes an unreasonableand extreme hardship upon Pinehill without remotely advancing the public health, safety and welfare and would constitute an arbitrary and capricious act without any rational basis therefore, constituting an abuse of discretion in violation of Article I, Section I, Paragraph Ioft the Constitution of the State of Georgia, Article I, Section III, Paragraph I ofthe Constitution ofthe State of Georgia, and the Due Process Clause oft the Fourteenth  Amendment toi the Constitution oft the United States.  Pinehill requests that the Decision be overturned and the ZBA make the determination that Pinehill has vested rights in developing the Property under the old  UDO and that the Ordinance does not apply.  Sincerely,  BLOOMI PARHAM, LLP Smpy Blonu Simon H. Bloom  Pemussand  per    APPEAL TO ZONING BOARD OF APPEALS OF ADMINISTRATIVE DECISION OR  WAIVER, MODIFICATION and APPEALS APPLICATION Paulding County Development Waiver Review Committee Paulding County Planning and Zoning Division * Dallas, Ga 30157*7 770-443-7601  LOAOIONMESIDNEK  Bloom Parham, LLP  Name of Applicant Representative Address Atlanta City.  977 Ponce de Leon Ave NE  NA 30306 Zip.  Home Phone  Georgia State  Email sblcom@biom-aw.com: apeairon@ucom-aiw.com Phone (404)577-7710  Signature of Applicant t/F Prees Signed, sealédand delivered in thej picendeof Cuer Notary Public Name(s) ofTitleholder(s), Atlanta City.  NOTARY Msompipbpies.  PUBLIC COUNTEC IITIT  1-8-3025  oublic  Pinehill Investments, Ltd.  Address_ 4200 Northside Parkway NW Email wDh2@pinehilivestments.com Signature ofTitleholder(s) 225HL Signed, sealed and delivered inj fhe presepceof  Home Phone NA  Georgia State  30327 Zip.  Phone (404)237-4675  - Alud Notary Public/" Present Zoning District(s). Land Lot(s).  YVETTE RENAUD eyronr-arardave Cobb County 1sm.mA Site Acreage of Application. 3 District(s).  commission expires 8-30-2026  PRD  223.8  223.8  Acreage ofTitleholder(s). 3 Section(s).  Development Reg. Article# 1.5.4, Ordinance 2024-05. Taxl Parcell I.D. Number(s). 074.4.2.001.0000  1019, 1020, 1021,1 1022, 1067, 1068, 1069,1 1070,  No  Ist the property int thel Hiram City Limits?  (yesorno)  Location of property. Shady Grove Church Road  Nearest intersections, (i.e. east/ west side ofs given road and: south/north ofs given road) and address ifavailable  Reason for waiver, modification, or appeali requested, along with copies ofs supporting information or documents, ifapplicable:  See attached letter to Zoning Board of Appeals.  CEIVE SEP -5 RECD  **StaffUse Only** ZBA  Case AD2V-eB-V CAppeaiy Hearing Date novem olr 1,2024  Approved Disapproved Tabled  Conditions Reason Date  V  12-17  /2/24    AVDOIGISIONE JOSI  GI'SINBWISANI THANId SONVIHOIGBHHS,    1I  BARRRR    ZONING ANALYSIS  2024-08-V (Appeal)  Applicant: Bloom Parham, LLP Titleholder: Pinehill Investments, LLC  Date: December 10, 2024 District: 3 Section: 3  Requesting: to appeal the decision denying  Land Lot: 1019, 1020, 1021, 1022, 1067, 1068, 10698 & 1070 Present Zoning: PRD (Planned Residential Development)  vested rights entitling PRD (Planned Residential Development) Ordinance 2024-05 for Sheffield Highlands North.  Post 4  L.L.9 999 District: 3 Section: 3  L.L. 998 District: 3 Section: 3  L.L. 997 District: 3 Section: 3  L.L.996 District: 3 Section: 3  LL. 995 District: 3 Section: 3  L.L.1018 District: Section:  L.L1019 District: 3 Section: 3  LL.1020 District 3 Section: 3 2024-08-V( (APPEAL) Pending  L 1021 District: 3 Section: 3  itrict: 1022 3 Sectpn:3  107 pistrict Section:  LL.1070 District: 3 Section:3  LL1069 District 3 Section: 3  LLI 1068 District 3 Section: 3 Section:  LL1 067 Distric  09 District3 Section: 3  L.L.1091 District: 3 Section: 3  L.L. 1092 District: 3 Section: 3  L.L. 1093 District: 3 Section: 3 Section: 3  4.L. 1094 District: 3  0  500  1,000  2,000 Feet    MULBERRY 14 OTH 14FOTHERGI 9 91 CYRIL MULBERRYS  0  500  1,000  2,000 Feet    9  c    68