297 Ga. 544
FINAL COPY

  S15A0082, S15X0083. BURTON et al. v. GLYNN COUNTY et al.; and
                          vice versa.
  S15A0626, S15X0627. GLYNN COUNTY et al. v. BURTON et al.; and
                          vice versa.

      HUNSTEIN, Justice.

      At the heart of these consolidated appeals and cross-appeals is the

question of whether property owners are violating a zoning ordinance by

operating their property as an event venue. For the reasons set forth below, we

conclude that the trial court properly found that the owners were violating the

ordinance and that the court properly issued a declaratory judgment to that

effect. Accordingly, we affirm the first of the two trial court orders before us

in its entirety, and we affirm the second of the two orders except in one respect,

as explained below.

      Thomas and Lee Burton own an oceanfront property in the East Beach

area of St. Simons Island. The property is situated within a single-family

residential zoning district classified as “R-6” under the Glynn County Zoning

Ordinance. After the completion of a large, lavish home on the property in
2008, the Burtons began offering the property, known as Villa de Suenos,1 as a

short-term vacation rental. Over the next few years, Villa de Suenos became

increasingly popular as a venue for weddings and other large gatherings; from

2010 through May 2013, at least 79 events were held at the property, with many

exceeding 100 guests.2 In print and online media, Villa de Suenos was

described as “perfect for weddings” and touted as “St. Simon’s Island’s premier

wedding destination”; its website featured scores of photographs of weddings

held at the property. Guests who booked Villa de Suenos were furnished with

a list of preferred caterers, photographers, florists, wedding planners, and other

similar vendors.

      In 2010, East Beach residents began raising complaints to the community

homeowners’ association and local law enforcement regarding noise, traffic, and

parking issues arising from events held at Villa de Suenos. From that time,

Glynn County police investigated more than 20 noise complaints related to the

property, many resulting in the issuance of citations or warnings. In May 2012,

      1
          “Villa de Suenos” translates in English as “House of Dreams.”
      2
        Lee Burton testified that one event in 2010 hosted more than 200 people, and
that subsequently the Burtons limited the capacity of events at Villa de Suenos to 150
attendees.
                                          2
Thomas Burton was arrested for maintaining a disorderly house.3 After

conducting an investigation, the Glynn County Community Development

Director concluded that the Burtons were making use of Villa de Suenos as a

commercial event venue, in violation of the county’s zoning ordinance. The

county thereupon issued the Burtons a cease and desist letter, contending that

their operation of the property in this manner was not a permitted use in an R-6

district, and requesting that the Burtons immediately discontinue such use.

      In response, the Burtons filed suit against Glynn County, along with each

of its commissioners and its chief of police (hereinafter, collectively, “the

County”), seeking declaratory and injunctive relief and writs of mandamus and

prohibition to stop the County’s efforts to enforce its zoning ordinance so as to

prohibit the use of their property as an event venue. In their complaint, the

Burtons asserted, inter alia, that enforcing the zoning ordinance against them in

this manner would violate their constitutional rights to due process and equal

protection. The County brought a counterclaim, seeking declaratory and

injunctive relief consistent with its interpretation of the zoning ordinance.

      3
       See OCGA § 16-11-44 (making it a misdemeanor to “maintain[ ] . . . a
common, ill-governed, and disorderly house . . . to the common disturbance of the
neighborhood or orderly citizens”).
                                        3
      Following an evidentiary hearing,4 the trial court issued an order on

December 20, 2013, adopting the County’s interpretation of its zoning ordinance

and directing the Burtons to comply with the ordinance, so interpreted, in their

future use of the property. The court also denied the Burtons’ equal protection

claim, finding that they had presented no evidence of other residential properties

in Glynn County that were operated in the same manner as the Burtons’ property

but were treated differently by the County. The Burtons appealed, challenging

the trial court’s interpretation of the zoning ordinance and its rejection of their

equal protection claim; the County cross-appealed, seeking to clarify the nature

of the relief the trial court had granted.

      Subsequently, with the appeal and cross-appeal pending, the County filed

a motion for contempt in the trial court, alleging that the Burtons were

continuing to promote Villa de Suenos as an event venue and accept bookings

for this purpose, in violation of the trial court’s order. The trial court thereafter

entered a second order, on August 12, 2014, denying the motion for contempt.

      4
        The hearing was at the time intended only to address the parties’ cross-motions
for interlocutory injunction. However, the parties subsequently agreed that this
hearing would constitute the final hearing on the merits. See OCGA § 9-11-65 (a) (2)
(trial court authorized to order final hearing on the merits to be “advanced and
consolidated with” interlocutory hearing).
                                          4
The County then appealed that ruling. The Burtons cross-appealed, arguing that

the trial court’s second order was erroneous to the extent it reaffirmed its earlier

construction of the zoning ordinance. We consolidated the two appeals and their

cross-appeals; we now affirm the December 20, 2013 order in its entirety, and

we affirm in part and vacate in part the August 12, 2014 order, as explained

more fully below.

                               Case No. S15A0082

      1. In its December 20, 2013 order, the trial court concluded:

            The Burtons' permissible accessory use of their property to
      host a wedding or social event has become the primary use of their
      property, and the magnitude, frequency, and cumulative impact
      thereof has moved beyond that expected or customary for a
      one-family dwelling. Because this use falls outside the normal
      scope of residential property use, it is thus violative of Section 701
      of the [Glynn County Zoning] Ordinance.

We review the construction of a zoning ordinance under a de novo standard.

See Expedia, Inc. v. City of Columbus, 285 Ga. 684 (4) (681 SE2d 122) (2009)

(construction of an ordinance is a question of law subject to de novo review on

appeal); Ervin Co. v. Brown, 228 Ga. 14, 15 (183 SE2d 743) (1971).

      In the construction of an ordinance, “the cardinal rule is to ascertain and

give effect to the intention of the lawmaking body.” Ervin Co., 228 Ga. at 15.

                                         5
By its own terms, the section of the ordinance in question here is “designed to

encourage the formation and continuance of a stable, healthy environment for

one-family dwellings.” Glynn County Zoning Ordinance, § 701.1. To promote

the desired “low-to-medium density residential” development in R-6 districts,

the ordinance expressly aims “to discourage any encroachment by commercial,

industrial, high density residential, or other uses capable of adversely affecting

the single-family residential character of the district.” Id.

      In furtherance of this purpose, the ordinance generally limits the use of

property situated in R-6 zoning districts to “[o]ne-family dwelling[s]” and

“[a]ccessory uses.”5 Id. at § 701.2. A “dwelling” is defined as “[a] building or

portion of a building designed for or occupied for residential purposes” and

explicitly excludes hotels, motels, and similar “accommodations used for more

or less transient [guests].” Id. at § 302. A “one-family dwelling” is defined as

“[a] detached dwelling . . . designed for or occupied exclusively by one family.”

Id. An “accessory use” is a use “which is customarily accessory and clearly

incidental and subordinate to the principal use.” Id.; see also id. at § 609. Thus,

      5
       The ordinance does also permit government-owned or operated facilities,
“[n]on-commercial horticultural or agricultur[al]” uses, and certain “home
occupation[s]” in R-6 districts. Glynn County Zoning Ordinance, § 701.2.
                                         6
the clear intent of the ordinance is to restrict the use of properties situated in R-6

zoning districts primarily to residential use by single families and other uses that

are customarily incidental thereto.

      Given this intent, and considering the largely undisputed evidence

presented to the trial court, we conclude, as the trial court did, that the Burtons’

use of their property violated the Glynn County Zoning Ordinance. The

frequency of the events and the apparently systematic manner in which the

property has been marketed and utilized for large-scale gatherings support the

conclusion that the property’s use as an event venue has, as the trial court found,

“moved beyond that expected or customary for a one-family dwelling.” See

Cawthon v. Douglas County, 248 Ga. 760, 765 (3) (286 SE2d 30) (1982)

(affirming trial court’s conclusion that homeowner’s dog-grooming business

had become “sufficiently voluminous and mechanized” to violate local zoning

ordinance). Though the Burtons insist that they do not actively promote the use

of their property as an event venue, there is ample evidence that the property has

been promoted —         whether by the Burtons, their property management

company, or third parties via the Internet — as just that. And while the Burtons

point to their policy requiring a four-night minimum rental period as evidence

                                          7
that Villa de Suenos is simply another garden variety St. Simon’s rental

property, this policy apparently does not prevent the regular use of Villa de

Suenos — an average of 25 times per year over a three-year period — as an

event venue, often for groups exceeding 100 persons.

      In addition, at the evidentiary hearing, several East Beach residents

testified regarding the disturbances they have experienced from loud music and

raucous partygoers, which have interfered with their enjoyment of their own

nearby homes. These residents also testified regarding the traffic and parking

problems generated by events held at Villa de Suenos. See Cawthon, 248 Ga.

at 761, 764 (testimony from neighbors regarding operations of homeowner’s

dog-grooming business, as well as traffic and other unwelcome consequences

thereof, supported conclusion that homeowner’s use was in violation of zoning

ordinance).

      In sum, the evidence amply supports the conclusion that the hosting of

events at Villa de Suenos, which is undeniably permissible on an occasional

basis as an incidental, accessory use of a one-family dwelling, has become

“sufficiently voluminous and mechanized,” Cawthon, 248 Ga. at 764, so as to

fall outside the scope of permissible uses under Section 701.2 of the Glynn

                                      8
County Zoning Ordinance.         Accordingly, we affirm the trial court’s

determination that the Burtons have operated their property in violation of the

zoning ordinance.

      2. We likewise affirm the trial court’s determination that the Burtons have

failed to adduce evidence in support of their equal protection claim. Whether

a zoning ordinance is enforced “in a reasonable and nondiscriminatory manner”

is a question of fact. Gouge v. City of Snellville, 249 Ga. 91, 94 (4) (287 SE2d

539) (1982). Though the Burtons adduced testimony from one witness that

events were sometimes held on rental properties on neighboring Sea Island, this

witness conceded that he knew of no properties that had hosted a similar volume

of events or whose events had spawned complaints from members of the

surrounding community. The trial court thus properly concluded that the

Burtons had failed to establish unequal treatment so as to give rise to an equal

protection claim.

      3. Though the trial court did not expressly rule on the Burtons’ due

process vagueness challenge to the zoning ordinance, it implicitly rejected this

claim insofar as it enforced the ordinance and ordered the Burtons to comply

with it. To satisfy due process, an ordinance must “be specific enough to give

                                       9
fair warning of the prohibited conduct.” 105 Floyd Road, Inc. v. Crisp County,

279 Ga. 345, 348 (613 SE2d 632) (2005). The Burtons assail the ordinance for

its failure to quantify precisely the point at which the hosting of large functions

on an R-6 property crosses the line from a permissible use “accessory” to a one-

family dwelling to an impermissible primary use. However, an ordinance need

not regulate with “‘mathematical certainty’” to comport with due process. Id.



      [E]ven if the outermost boundaries of the applicable section of the
      ordinance may be imprecise in certain situations . . . , one to whose
      conduct [an ordinance] clearly applies may not challenge it on the
      basis that it may be unconstitutionally vague when applied to
      others.

Gouge, 249 Ga. at 93-94. We conclude that the ordinance at issue here is

sufficiently specific for “‘persons of common intelligence’” to recognize that the

Burtons’ use of Villa de Suenos does not qualify as a permissible use in an R-6

district. See 105 Floyd Road, Inc., 279 Ga. at 348; Gouge, 249 Ga. at 93. The

Burtons’ due process challenge thus fails.




                                        10
                                Case No. S15A0626

      4. Of relevance to the County’s motion for contempt, the December 20,

2013 order states as follows:

            The Burtons have an obligation to manage their short-term
      vacation rentals so as to comply with the requirements of the
      Ordinance governing districts such as R-6. As such, the Burtons are
      hereby ORDERED to comply with Section 701 of the Ordinance by
      ensuring that their principal use of the property be as a “one-family
      dwelling,” which use may include any uses customarily incidental
      or accessory thereto.

In response to the motion for contempt, the Burtons argued as an initial matter

that the trial court lacked authority to consider the motion given the pendency

of the appeal. Specifically, the Burtons claimed that the appeal of the December

20, 2013 order operated as a supersedeas, see OCGA § 5-6-46 (a), precluding

further proceedings in the case pending resolution of the appeal. See Davis v.

Harpagon Co., 281 Ga. 250 (8) (637 SE2d 1) (2006) (providing that a notice of

appeal in a civil case generally acts as a supersedeas, depriving the trial court of

jurisdiction to modify or enforce the judgment appealed).             The County

responded that the automatic supersedeas provisions of OCGA § 5-6-46 did not

apply because the trial court’s December 20, 2013 order constituted an

injunction. See OCGA § 9-11-62 (a) (unless court orders otherwise, injunction

                                        11
is not stayed pending resolution of appeal); Davis, 281 Ga. at 253 (injunctions

are excepted from automatic supersedeas). On this point, the trial court agreed

with the Burtons, construing its December 20, 2013 order as a declaratory

judgment, not an injunction, and therefore finding that contempt was

unavailable at that stage of the proceedings.

      A declaratory judgment is “a means by which a superior court ‘simply

declares the rights of the parties or expresses (its) opinion . . . on a question of

law, without ordering anything to be done.’” Baker v. City of Marietta, 271 Ga.

210, 213 (1) (518 SE2d 879) (1999); accord Richard C. Ruskell, Ga. Practice &

Procedure, § 26:9 (2014-2015 ed.). An injunction, by contrast, imposes an

affirmative duty on the party enjoined to either perform — or refrain from

performing — a specified act. Ruskell, Ga. Practice & Procedure, § 28:1; see

also Adams v. Madison County Planning & Zoning, 271 Ga. App. 333 (1) (609

SE2d 681) (2005) (order requiring property owners to remove paving equipment

from their property was injunctive in nature). Thus, an order simply delineating

what the applicable legal authority requires or prohibits is a declaratory

judgment. Such an order is not converted into an injunction merely because it

directs a party to comply with the law so construed. See Wiggins v. Bd. of

                                        12
Commrs. of Tift County, 258 Ga. App. 666, 668 (574 SE2d 874) (2002)

(holding that injunction would not lie to simply require a party to obey the law).

      It is axiomatic that “[a] court has the authority to interpret and clarify [its

own] order.” Blair v. Blair, 272 Ga. 94, 96 (1) (527 SE2d 177) (2000). As the

trial court has confirmed, its December 20, 2013 order did no more than

determine that the Burtons’ use of their property was in violation of the zoning

ordinance and direct them henceforth to comply with the terms of the ordinance.

As such, the December 20, 2013 order constituted a declaratory judgment. This

being the case, the trial court lacked jurisdiction to entertain the motion for

contempt during the pendency of the appeal. See Davis, 281 Ga. at 253. Rather

than purporting to deny the motion, however, the trial court – once it had

determined that it lacked jurisdiction – should have refrained from acting further

on the motion. We therefore affirm the August 12, 2014 order to the extent it

construed the December 20, 2013 order as a declaratory judgment, but we vacate

the August 12, 2014 order to the extent it denied the motion for contempt rather

than dismissing the motion for lack of jurisdiction or holding it in abeyance

pending disposition of the appeal.



                                         13
                                Case No. S15X0083

      5. The County contends in its cross-appeal that the trial court erred to the

extent it granted only declaratory relief against the Burtons. Having affirmed

the trial court’s conclusion that the Burtons’ use of their property violated the

zoning ordinance, and having affirmed the trial court’s characterization of its

initial order as declaratory and not injunctive, we now also affirm the trial

court’s exercise of discretion not to award an injunction. A trial court’s decision

to grant or deny a request for an injunction must be affirmed absent an abuse of

discretion. OCGA § 9-5-8 (decision to grant an injunction “shall always rest in

the sound discretion” of the trial court); Pennsylvania Poorboy, Inc. v. Robbins

Restaurant, Inc., 238 Ga. 539 (233 SE2d 791) (1977). We find no abuse of

discretion here.6

                                Case No. S15X0627

      6. Because we have affirmed the trial court’s conclusion that the Burtons’

use of their property violated the zoning ordinance, we must necessarily reject

      6
        Of course, the fact that the trial court declined to award an injunction at the
same time it granted declaratory relief delineating the Burtons’ rights and obligations
under the zoning ordinance would not preclude the trial court from considering
injunctive relief in the future should the Burtons continue to operate their property
in violation of the ordinance.
                                          14
the Burtons’ claim in this cross-appeal that the trial court erred in reaffirming

this conclusion in its August 12, 2014 order.

      Judgment affirmed in Case Nos. S15A0082 and S15X0083. Judgment

affirmed in part and vacated in part in Case Nos. S15A0626 and S15X0627. All

the Justices concur.




                                       15
                           Decided July 13, 2015.

      Zoning. Glynn Superior Court. Before Judge Kelley.

      Roberts Tate, James L. Roberts IV, Jason M. Tate, Lacey L. Houghton, for

Burton et al.

      Aaron W. Mumford; Brown Readdick Bumgartner Carter Strickland &

Watkins, Gregory T. Carter, Bradley J. Watkins, Emily R. Hancock, for Glynn

County et al.

      Mary H. Moses, amicus curiae.




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