Easement Over Property to Boat Launch Violates Zoning

The Court of Appeals affirmed summary judgment against a group of landowners in favor of the Lowndes County denying them the use of a boat ramp to a lake.  Dawkins & Smith Homes LLC v. Lowndes County, Ga, Case No. A10A1741, Decided September 15, 2010.  The plaintiffs were a developer and 13 other landowners.  The developer, Dawkins & Smith Homes ("DSH") bought 14 lots, one of which had a boat ramp allowing access from the street to the lake.  The developer sold the other 13 lots during the period from March 2007 through September 2007, and granted a perpetual easement with each lot over the lot with the boat ramp allowing vehicle access to the lake and use of the ramp.   After complaints from neighbors the county informed these landowners that the easements violated a zoning ordinance that had been enacted in 1984 and replaced with a new ordinance in 2006. 

Both the 1984 ordinance and the 2006 one are substantively the same.  The ramp lot was zoned to allow only use for a single family residence and far any accessory uses.  Accessory use was defined as a use which is incidental and subordinate to the principal use of the structure.   The court held that the easements were not incidental to the primary use of the ramp lot as a single family residence.  The ownership of the ramp lot and the easements were totally independent of each other.  The court found that this was different than a single family homeowner giving revocable, temporary permission to friends and family to periodically access the lake.  The landowners argued that the use of the ramp predated the ordinances and thus that the pre-existing use was grandfathered in under the ordinances.  However, the court noted that the prior use was of a totally different character, and did not involve perpetual easements, so the court rejected the argument.