Fairfax MK Inc. v. City of Clarkston

Fairfax MK, Inc. applied for a building permit to construct a gasoline service station in the City of Clarkston on property owned by Creek Pointe MK, LLC. Because the property is located near a day care center, the City Council denied the application based upon a provision of the City’s Gasoline Service Station Ordinance GSSO which requires a minimum distance of 500 feet between a gas station and a school or other place of public assembly. Thereafter, the City amended the GSSO specifically to include day care centers within the definition of the term “school.” Fairfax MK subsequently submitted a second application for a building permit, which was also denied. Fairfax MK and Creek Pointe MK Appellants brought suit for declaratory judgment and mandamus. The trial court granted summary judgment in favor of the City, based in part on the ruling that the GSSO is not a zoning ordinance subject to the Zoning Procedures Law ZPL, OCGA § 36-66-1 et seq. Appellants filed an application for discretionary appeal, which we granted in order to consider what constitutes a zoning ordinance under the ZPL.

1. The ZPL “is mandatory and applies to the entire process of adopting or amending a zoning ordinance. Cits.” Little v. City of Lawrenceville, 272 Ga. 340, 341 1 528 SE2d 515 2000. However, zoning is to be distinguished from other regulations with which a developer must comply, such as requirements for a building permit. See McClure v. Davidson, 258 Ga. 706, 711 6 373 SE2d 617 1988. Each type of regulation “is independent of the other and seeks to accomplish its purpose by a different means.” 8 McQuillin, Municipal Corporations § 25.12, p. 45 3rd ed. rev. 2000.