NORHAVEN PARTNERS, LLC v. BARTOW COUNTY
CourtCourt of Appeals of Georgia
Date FiledNovember 2, 2026
DocketA26A1626
StatusPublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
SECOND DIVISION
DOYLE, P. J.,
DAVIS and WHITAKER, JJ.
NOTICE: Motions for reconsideration must be
received no later than 4:30 pm on the 10th day after
the decision was issued to be deemed timely filed.
https://www.gaappeals.gov/rules
November 2, 2026
In the Court of Appeals of Georgia
A26A1626. NORHAVEN PARTNERS, LLC et al. v. BARTOW
COUNTY et al.
DOYLE, Presiding Judge.
Norhaven Partners, LLC, and Peeples Owner LLC (collectively, “Norhaven”)
filed a petition for review of the Bartow County Commissioner’s grant of a conditional
use permit (“CUP”) to Justin Rice and Rice Commercial Investments, Inc.,
(collectively, “Rice”) to build a waste processing facility next to a proposed
residential development. The trial court initially disposed of several arguments raised
in the petition but remanded for the commissioner to make further findings of fact and
conclusions of law as to the remaining arguments. On remand, the commissioner
made factual findings and legal conclusions as directed, and after a hearing, the trial
court rejected Norhaven’s remaining arguments. Norhaven appealed, arguing that the
trial court erred by (1) reviewing only the written transcript of the public hearing
before the commissioner; (2) remanding the case to the commissioner to make factual
findings where the record was amenable to only one interpretation; and (3) denying
the petition after the commissioner ignored the trial court’s instructions on remand.
For the reasons that follow, we affirm.
Our review of a quasi-judicial decision of an agency of a local government by
way of a petition for review
requires us to determine that the findings of fact are supported by any
evidence and to examine the soundness of the conclusions of law that are
based upon the findings of fact. ... [W]hen we review a superior court’s
order in a[ quasi-judicial] proceeding, our duty is not to review whether
the record supports the superior court’s decision but whether the record
supports the final decision of the [quasi-judicial] agency. ... [W]e review
legal conclusions de novo.
Beacon Media, LLC v. City of Atlanta, 379 Ga. App. 477, 478 (929 SE2d 40) (2026)
(cleaned up).
So viewed, the record reflects that in January 2023, Bartow County approved
conceptual site plans submitted by Norhaven to develop a 97-unit townhome
community on residentially zoned property. By October 2023, the development plans
for this townhome community, known as the Overlook on Pettit, had been fully
2
approved by the county, which approved Norhaven’s application for a land use
disturbance permit for the development.
Adjacent to, and east of, the site of Norhaven’s planned residential
development is property zoned heavy industrial owned by Rice. Rice had been using
the property for a mulch materials processing, wood shredding, and rock crushing
operation prior to its July 2, 2024 application for a CUP to expand the use of the
property to include a recovered materials processing and solid waste handling facility
for construction and demolition materials. At the time of Rice’s CUP application, no
construction had begun on Norhaven’s residential development, but based on an
overlay of Rice’s proposed site plan and Norhaven’s development plans, 46 of the 97
proposed townhomes would be within 1,000 feet of the proposed waste handling area.
Relevant to this appeal, Section 9.5.6 of the Bartow County Zoning Ordinance
provides that “[n]o waste handling area (as measured from the chain link fence
boundary) may be located within one thousand (1,000) feet of any residential dwelling
(so used at the time of the application).” Section 3.1 of the zoning ordinance provides
that “[t]he word ‘used’ or ‘occupied’ as applied to any land or building shall be
construed to include the words ‘intended, arranged[,] or designed to be used or
occupied.’” Section 3.2 of the ordinance defines “dwelling” as “[a] building or other
3
structure designed, arranged, or used for temporary or permanent living quarters for
one or more persons.” This Section further defines “structure” as “[a]nything
constructed or erected, the use of which requires location on the ground, or
attachment to something having location on the ground.”
In August 2024, a public hearing on Rice’s CUP application was held before the
Bartow County Planning Commission, which voted to recommend approval of the
CUP with certain conditions, such as construction of a berm along the boundary of the
property bordering residential properties and a prohibition on the incineration of
waste. Rice’s CUP application then came before the Bartow County Commissioner
for a public hearing on September 4, 2024. Representatives of Norhaven, as well as
members of the public, appeared at the hearing and voiced their opposition to the
CUP. In particular, representatives of Norhaven argued that based on Rice’s proposed
site plan, approval of the CUP would result in a violation of Section 9.5.6 of the
Bartow County Zoning Ordinance because Rice’s waste processing facility would be
within 1,000 feet of 46 of the townhomes planned for construction as part of
Norhaven’s residential development. At the conclusion of the hearing, the
commissioner approved Rice’s CUP application, subject to the conditions
recommended by the planning commission, as well as the additional condition per the
4
zoning ordinance that a “1,000-foot separation distance from residential homes from
the proposed solid waste handling facilities shall be in place and shall be maintained.”
On October 3, 2024, Norhaven filed a petition for review of the commissioner’s
approval of the CUP, naming Rice and Bartow County as a respondents. Relevant to
this appeal, the petition alleged that the approval of Rice’s CUP application violated
Section 9.5.6 of the Bartow County Zoning Ordinance in that the proposed waste
processing facility would be within 1,000 feet of residential dwellings and that the
approval was therefore void. The trial court convened a hearing on the petition on July
9, 2025. At the hearing, counsel for Norhaven argued that a dwelling need not be
constructed in order to trigger application of Section 9.5.6 of the zoning ordinance;
it merely had to be “intended, arranged, or designed to be used” pursuant to Section
3.1 of the ordinance. Counsel for Rice countered that Section 9.5.6 of the ordinance
required a 1,000-foot separation distance only as measured from residential dwellings
constructed at the time the CUP application was submitted, citing Section 3.2 of the
ordinance, which defines “dwelling” as a “building or other structure designed,
arranged, or used for temporary or permanent living quarters for one or more
persons.”
On September 3, 2025, the trial court entered an order on Norhaven’s petition
5
for review. Relevant to this appeal, the trial court interpreted OCGA § 5-3-5(a)(1) to
confine the scope of its review to the transcript of the hearing before the
commissioner, to the exclusion of any issue not specifically raised at this hearing. The
trial court also remanded the case to the commissioner for determination of “whether
any portion of a waste handling area, as measured from the chain link fence boundary,
is located within one thousand (1,000) feet of any residential dwelling (intended,
arranged, or designed to be used).”
On remand, the commissioner made a written finding of fact that Rice’s
proposed “waste handling area, as measured from the chain link fence boundary, was
located at least 1,000 feet from any residential dwelling being used at the time of the
[a]pplication.” In support of this finding, the commissioner cited testimony from the
September 4, 2024 hearing that Norhaven had completed some site work but had not
yet started construction of any townhomes pursuant to its residential development
plan.
Following entry of the commissioner’s written findings, the case was
transmitted back to the trial court, which convened a second hearing on Norhavan’s
petition for review on December 17, 2025. There, counsel for Norhaven challenged
the commissioner’s finding that Rice’s proposed waste handling facility would be at
6
least 1,000 feet from any residential dwelling on the grounds (1) that it was not
supported by any evidence, and (2) that it ignored the trial court’s remand
instructions by failing to consider Section 9.5.6 of the zoning ordinance in conjunction
with Section 3.1 of the ordinance, under which Norhaven’s proposed residential
building sites should be considered buildings that were “intended, arranged, or
designed to be used” as residential dwellings.
On January 5, 2026, the trial court entered a final order denying the petition and
affirming the commissioner’s approval of Rice’s CUP application. In its order, the
trial court ruled that the commissioner had complied with the trial court’s instructions
on remand to make written findings of fact. Additionally, the trial court ruled that the
commissioner was required to consider Section 3.1 of the zoning ordinance and “any
other applicable code when determining whether a waste handling facility is within
1,000 feet of a residential dwelling.” Although the trial court’s order does not
explicitly deny Norhaven’s argument that the approval of Rice’s CUP application was
void for violating Sections 9.5.6 and 3.1 of the zoning ordinance, subsequent
correspondence among the trial court and parties clarifies that it was the trial court’s
intention to do so. Norhaven filed an application for discretionary appeal, which this
Court granted, and this appeal followed.
7
1. Norhaven contends that the trial court erred by construing OCGA § 5-3-
5(a)(1) to confine the scope of its review to the written transcript of the public hearing
before the commissioner. This contention is without merit.
OCGA § 5-3-5(a)(1) provides that in reviewing the decision of a lower
judicatory, “a reviewing court shall ... [r]eview only matters raised in the record of the
proceedings in the lower judicatory.” When interpreting statutory language, Georgia
courts are to “presume that the General Assembly meant what it said and said what
it meant.” Deal v. Coleman, 294 Ga. 170, 172(1)(a) (751 SE2d 337) (2013) (quotation
marks omitted). In so doing, we “must afford the statutory text its plain and ordinary
meaning, ... view the statutory text in the context in which it appear, and ... read the
statutory text in its most natural and reasonable way.” Chestnut Ridge, LLC v. Hall
County Bd. of Tax Assessors, 323 Ga. 150, 155(1) (924 SE2d 331) (2025) (quotation
marks omitted). “[I]f the statutory text is clear and unambiguous, we attribute to the
statute its plaining meaning, and our search for statutory meaning is at and end.” Id.
(quotation marks omitted).
Here, the phrase “matters raised in the record of the proceeding in the lower
judicatory” plainly refers to all materials submitted to or considered by the lower
judicatory during the course of the relevant proceeding. To the extent that the trial
8
court interpreted OCGA § 5-3-5(a)(1) to confine the scope of its review to the
transcript of the hearing before the commissioner, to the exclusion of issues not
specifically raised at this hearing, such as Section 3.1 or other applicable provisions of
the zoning ordinance, Rice’s CUP application, or other materials submitted to or
considered by the commissioner but not directly addressed at the hearing, the trial
court erred.
But a successful enumeration of error requires a showing of both error and
harm. See Alligood v. Piedmont Med. Care Corp., Inc., 369 Ga. App. 171, 172(1) (892
SE2d 790) (2023) (“An appellant must show harm as well as error to prevail on
appeal; error to be reversible must be harmful.”) (quotation marks omitted). Here,
although the trial court purported to limit its review to the transcript of the hearing
before the commissioner, it clearly considered the application of Section 3.1 of the
zoning ordinance, as evidenced in its instruction to the commissioner on remand to
consider this Section in its determination of “whether any portion of a waste handling
area, as measured from the chain link fence boundary, is located within one thousand
(1,000) feet of any residential dwelling (intended, arranged, or designed to be used)”
and in its ruling in the final order that the commissioner was required to consider the
language of this Section “or any other applicable code” in making this determination.
9
To the extent that the trial court was required, but failed, to explicitly consider
the effect of other applicable sections of the zoning ordinance not specifically raised
at the hearing before the commissioner, Norhaven cannot show harm because
consideration of other applicable sections of the ordinance leads to the same
conclusion that the trial court reached — that Rice’s proposed waste processing
facility did not violate Section 9.5.6 of the zoning ordinance because it was not within
1,000 feet of any residential dwelling. Section 3.2 of the ordinance defines “dwelling”
as “[a] building or other structure designed, arranged, or used for temporary or
permanent living quarters for one or more persons.” This Section further defines
“structure” as “[a]nything constructed or erected, the use of which requires location
on the ground, or attachment to something having location on the ground.” Thus, a
proper reading of Section 9.5.6 in conjunction with Sections 3.1 and 3.2 mandates the
conclusion that the term “residential dwelling” includes only buildings, structures,
or other constructed edifices intended, arranged, or designed to be used as living
quarters and, contrary to Norhaven’s argument, does not encompass undeveloped
residential properties that may be intended, arranged, or designed to be the sites of
residential dwellings but on which no such buildings or structures are erected at the
time of the application. Because the trial court’s order is consistent with this reading,
10
this enumeration of error presents no basis for reversal.
2. Norhaven also contends that the trial court erred by remanding the case to
the commissioner to make factual findings as to Rice’s compliance with Section 9.5.6
of the zoning ordinance because the record is amenable to only one interpretation. We
disagree.
OCGA § 5-3-18(1)(1)(C) provides that in rendering a final decision as to a
petition for review, one of the trial court’s options for disposing of the petition is
“[r]emanding [the] petition for review back to the lower judicatory with
instructions[.]” Here, the trial court did just that, and rightly so. In passing on a
petition for review, a trial court is required to “[a]ccept the findings of fact and
credibility of the lower judicatory unless they are clearly erroneous[,]” see OCGA §
5-3-5(a)(2), and, more broadly, to “[d]etermine whether the final judgment was
sustained by sufficient evidence.” OCGA § 5-3-5(a)(4).
The trial court was faced with a challenge to the commissioner’s determination
that Rice’s CUP application violated Section 9.5.6 of the zoning ordinance. The
commissioner initially determined that the CUP did not violate this Section but failed
to make explicit factual findings in support of this determination. The trial court
properly remanded the case to the commissioner to do so under OCGA §§ 5-3-5(a)(1)
11
and (a)(4). On remand, the commissioner cited testimony indicating that at the time
of Rice’s CUP application, no residential dwellings or other structures had been
constructed on Norhaven’s residential properties. Our independent review confirms
this finding to be undisputed and supported by the record. Because sufficient evidence
supported the commissioner’s determination that Rice’s CUP application was not in
violation of Section 9.5.6 of the zoning ordinance, the trial court did not err in
accepting this finding of fact pursuant to OCGA § 5-3-5(a)(2).
3. Finally, Norhaven contends that the trial court erred by denying its petition
for review because the commissioner ignored the trial court’s instructions on remand.
We disagree.
The trial court instructed the commissioner on remand to determine “whether
any portion of a waste handling area, as measured from the chain link fence boundary,
is located within one thousand (1,000) feet of any residential dwelling (intended,
arranged, or designed to be used).” On remand, the commissioner did precisely as
instructed, finding that “the waste handling area, as measured from the chain link
fence boundary, was located at least 1,000 feet from any residential dwelling being
used at the time of the [a]pplication.” As discussed in Division 2, the commissioner
cited sufficient evidence to support this determination in the form of testimony at the
12
hearing, including that of Norhaven’s own representative, that no residential
dwellings had been constructed on any of Norhaven’s properties at the time of Rice’s
CUP application. Accordingly, the trial court did not err by finding that the
commissioner had complied with its instructions on remand.
In light of our holdings herein, it is not necessary to address Rice’s motion to
dismiss this appeal based on alleged changes to the Bartow County Zoning Ordinance,
which is hereby denied as moot.
Judgment affirmed. Davis, J., concurs. Whitaker, J., concurs in judgment only.
13