MEEKS et al. v. CITY OF BUFORD et al., 275 Ga. 585

Hunstein, Justice. Appellants, trustees of a medical pension plan, appeal from the trial court’s order denying and dismissing their petition for declaratory and mandamus relief in a case in which appellants assert they have a vested property right to utilize investment property in accordance with a zoning variance granted in 1985. Because appellants failed to establish that they acquired a vested property right, we affirm.

In July 1985, the City of Buford enacted a zoning ordinance wherein the zoning classification for the 30 acres of undeveloped land at issue here was changed from RM-13 (residential multi-family with a density of 13 units per acre) to RM-8 (residential multi-family with a density of 8 units per acre). At the time, the property was under contract for sale with a prior potential purchaser. On November 18, 1985 the City’s Zoning Board of Appeals approved a variance regarding the property which allowed a density of 11-12 units per acre without time limitations or conditions precedent.

The City thereafter forwarded a letter to the Gwinnett County Planning and Zoning Department regarding the variance and requesting a building permit be granted to the then-potential purchaser of the property. However, the potential purchaser never bought the property and the building permit never issued. On December 30, 1986 appellants purchased the property contingent upon unconditional zoning for multi-family use with 13 apartment units allowable per acre, acknowledgment by the City that it had no future plans to rezone the property, and guaranteed issuance of development and building permits for the property.

Appellants relied on the existing variance and approved development plan as satisfaction of these contingencies. Appellants expended approximately $500,000 in purchasing the property and have paid property taxes and interest on the promissory notes since 1986. In 1991, the City adopted a new comprehensive zoning ordinance wherein the square footage requirements for an RM-8 zoning changed. In November of 1999, appellants entered into a conditional sales contract with a potential purchaser.

The potential purchaser’s application for a variance to change the zoning density from 8 to 10 multi-family housing units per acre was denied by the City because the 1991 zoning ordinance provided for an RM-8 density, the 1985 variance was no longer applicable, and the higher density was otherwise inappropriate for the property. In August 2000, appellants sought a declaratory judgment and writ of mandamus from the Gwinnett County Superior Court seeking to enforce the 1985 variance and to require the City to issue a certificate of zoning compliance confirming the development terms allowed by the variance.

The trial court denied appellants’ request for relief. 1. The dispositive issue in this case is whether appellants obtained a vested right to use the undeveloped investment property in the manner permitted by the 1985 variance. Appellants argue that they obtained a vested right in the land use classification granted by the 1985 variance and that under Pinnell v. Right, 245 Ga. App. 299 (2) (537 SE2d 170) (2000), the mere passage of time cannot invalidate the vested right to utilize the property in the manner permitted by the variance.

The majority rule for vesting a landowner with a right to use the property consistent with a pre-existing land use notwithstanding subsequent zoning and land use changes is set forth in Barker v. County of Forsyth, 248 Ga. 73 (2) (281 SE2d 549) (1981). The rule requires that in order for a landowner to acquire a vested right to initiate a use, despite a restriction contained in an ordinance, the landowner must in good faith have “ ‘made a substantial change of position in relation to the land, made substantial expenditures, or [have] incurred substantial obligations.’ [Cits.]” Id. at 76. Corey Outdoor Adv. v.

Bd. of Zoning &c., 254 Ga. 221, 225 (4) (327 SE2d 178) (1985) ; see 4 Rathkopf, The Law of Zoning and Planning, § 70:20 (2001). While we have acknowledged the existence of “constitutionally protected vested zoning rights” of a property owner under certain conditions, so as to preclude retroactive application of a zoning ordinance, id., the mere reliance on a particular variance without a showing of a substantial change in position by expenditures based upon an existing zoning ordinance does not vest rights in the landowner.

This view is consistent with decisions of this Court regarding the vesting of property rights in property as zoned. See Cohn Communities v. Clayton County, 257 Ga. 357 (1) (359 SE2d 887) (1987); WMM Properties v. Cobb County, 255 Ga. 436 (1) (339 SE2d 252) (1986) ; and Barker, supra, 248 Ga. at 75 (2).

Although these cases do not specifically address the rights of a holder of a variance who has not yet exercised it, we see no reason why the holder of an unexercised variance should be in a better or different position with regard to the vesting of property rights than one whose rights emanate from a building or special use permit or approved development plan. See id.; Schulman v. Fulton County, 249 Ga. 852, 853 (295 SE2d 102) (1982); Barker, supra; see generally Dimitrov v. Carlson, 350 A2d 246, 248-251 (N.J. Super. App. Div. 1975). 2.

In the instant case, appellants sought a declaratory judgment and the issuance of a mandamus requiring the City to guarantee that the density variance issued over 15 years ago was still in effect. The record demonstrates, however, that since they purchased the property in 1986, appellants have made no significant expenditures in reliance on the variance or official assurances that a building permit would issue. See Cannon v. Clayton County, 255 Ga. 63 (335 SE2d 294) (1985) (property owner acquired vested rights based on substantial expenditures, in addition to purchase price, in reliance on zoning); North Ga.

Mountain Crisis Network v. City of Blue Ridge, 248 Ga. App. 450 (2) (546 SE2d 850) (2001) (purchase of land by itself does not confer vested right to particular zoning use); see generally Anderson’s American Law of Zoning (4th ed.), § 6.21. Accordingly, appellants failed to establish that they acquired a vested right to use the property in accordance with the 1985 variance and the trial court did not err in refusing to give effect to the variance. Judgment affirmed. All the Justices concur, except Carley, J, who dissents. No appeal of the denial of the variance was filed.