CARLEY, Presiding Justice.
Appellant East Georgia Land and Development Company, LLC (EGL) purchased 427 acres of land in Newton County, Georgia, for the purpose of constructing a landfill. As part of its application for a landfill permit from the Georgia Department of Natural Resources, EGL requested a letter of zoning compliance from the Newton County Board of Commissioners (Board) as required by OCGA § 12-8-24(g). On August 25, 1997, the Board declined to issue the letter based on its interpretation that a landfill was not a permitted use under the Newton County zoning ordinance enacted on May 21, 1985. EGL appealed that decision to the Newton County Board of Zoning Appeals (BZA), which upheld the decision and denied the appeal. On December 19, 1997, EGL commenced a multi-count suit which included a request for review of the decision of the BZA as well as a request for a writ of mandamus requiring issuance of the zoning compliance letter. EGL contended that it was entitled to the issuance of a letter as a matter of law because the zoning ordinance was not validly enacted. In an April 13, 2000 order that was issued in response to cross-motions for summary judgment, the trial court stated that the threshold issue was whether the zoning ordinance was valid and thus whether mandamus should be granted, and it held that all other claims would be deferred until the determination of the threshold issue.
1. EGL contends that the trial court erred in holding that Baker mooted any issue regarding whether the original zoning ordinance was invalid for not being attached to the minutes of the May 21, 1985 meeting.
In the order issued April 13, 2000, the trial court, interpreting our decisions in Waldrop v. Stratton & McLendon, 230 Ga. 709, 710, 198 S.E.2d 883 (1973) and Friedman v. Goodman, 219 Ga. 152, 160(3)(b), 132 S.E.2d 60 (1963), found that the original zoning ordinance was not sufficiently identified in the minutes of the May 21, 1985 meeting so as to be incorporated by reference and thus held that the County must prove that the ordinance was physically attached to the minutes in order to satisfy the level of certainty and accessibility required under our Zoning Procedures Law (ZPL). See also OCGA § 36-1-25 ("[D]ocuments related to actions taken by a county governing authority may be included in the minutes or incorporated by reference to an alternate location.") The trial court then held that "whether the ordinance was so attached is a material question of fact." After over eight years of discovery, the trial court entered an order on August 22, 2008, staying further proceedings in the present case as the County had filed its petition to reestablish the zoning ordinance by use of a copy pursuant to OCGA § 24-8-1. In an order issued on August 19, 2008 granting a motion to intervene in the reestablishment case filed by EGL, the trial court stated with regard to the stayed case that
The parties then proceeded on that basis, and on March 20, 2009, the trial court issued a final order establishing a copy of the zoning ordinance in lieu of the lost original, finding "that a zoning ordinance was adopted . . . on May 21, 1985, and apparently had been attached to the official minutes of the meeting[,]. . . was subsequently lost, and that a copy of the ordinance was found in the zoning office in 1999. . . ." As stated above, this decision of the trial court was affirmed in Baker.
In the order that is presently on appeal, the trial court held that our decision in Baker mooted any issue with regard to whether the original zoning ordinance was attached to the minutes so as to have been validly enacted. The trial court and the
OCGA § 24-8-1 states that when a copy becomes established, such copy "shall be in all respects evidence as the original records would have been." Title 24 is the section of the Georgia Code that sets forth the law regarding evidence. Thus, the plain language of the statute and its position in our code demonstrates that the purpose of this statute is evidentiary only, with the established copy serving as an evidentiary substitute for the lost record. Nothing in OCGA § 24-8-1 et seq. provides that the establishment of a copy of a lost record will validate or render enforceable a previously invalid or unenforceable ordinance. "[T]he sole object of a statute providing for the restoration of [public] records which have been destroyed is to restore the record as it existed, regardless of its regularity or legal effect. [Cit.]" 76 CJS Records § 41.
Only a few appellate decisions have construed OCGA § 24-8-1 or its predecessor statutes, but all of these decisions are consistent with the determination that establishing a copy of a lost record serves merely as evidence of its existence and contents and does not purport to validate or enforce it. For example, in Bond v. Reid, 152 Ga. 481, 110 S.E. 281 (1922), a will that had been duly probated and recorded had been destroyed when the county records office was consumed by fire. A proceeding to establish a copy of the lost will was initiated and appealed to this Court due to our jurisdiction over cases involving wills. However, we transferred the case to the Court of Appeals, finding that a proceeding to establish a copy in lieu of a duly probated and recorded will that had been destroyed was not a proceeding to probate a copy of a lost or destroyed will and thus does not fall within this Court's jurisdiction regarding the validity and construction of wills. Bond v. Reid, supra. The Bond court, therefore, distinguished a case to establish a copy of a lost will from a case challenging the validity of a will. See also Loftin v. Carroll County Bd. of Education, 195 Ga. 689(1), 25 S.E.2d 293 (1943) (holding that the Supreme Court does not have jurisdiction over a case to establish a copy of a deed claimed to have been lost); Mize v. Harber, 189 Ga. 737, 742, 8 S.E.2d 1 (1940) (holding that copies previously established as replacements for lost original court documents were "in substance record evidence, and [are] entitled to as much weight as the [original documents] would have been given" as long as the statutes regarding the proper procedure for the recording of the originals had been followed).
In Baker, supra, this Court affirmed the establishment of a copy of the 1985 zoning ordinance, but we were careful to clarify that this issue was separate from the enforcement, adoption, or amendment of the ordinance. For example, we explained that "`[p]roperly construed, the [establishment] proceeding is not one to (enforce a zoning ordinance), but is one to establish a copy of a lost record (there)of. . . .' [Cit.]" East Ga. Land and Development Co. v. Baker, supra at 553(2), 690 S.E.2d 145. In explaining our rejection of a challenge to the reestablishment statute based upon an alleged violation of separation of powers and of the ZPL, we stated that
East Ga. Land and Development Co. v. Baker, supra at 554-555(4), 690 S.E.2d 145. In this portion of Baker, we not only stated that
Finally, an example will illustrate the differing effect of OCGA § 24-8-1 on a lost public record from any law addressing the validity or enforcement of that public record. Suppose a warranty deed is recorded in the county clerk's real estate records. Subsequently, however, the grantor's guardian initiates litigation contending that the deed is unenforceable because the grantor was incompetent at the time of execution. While the litigation is pending, the records in the clerk's office are destroyed by fire. The probate judge institutes proceedings under OCGA § 24-8-1 to establish copies of the lost records, including the lost warranty deed, which is subsequently established. The establishment of the copy of the lost warranty deed, however, does not validate the deed over the guardian's claims that the grantor was incompetent. Rather, the established copy is admissible as if it were the original, which was subject to claims of the grantor's incompetency. Likewise, in the present case, the establishment of a copy of the zoning ordinance does not miraculously cure issues related to its validity, but merely establishes the copy as an evidentiary substitute for the original and thus subject to any validity or enforcement issues that could be raised against the original, including whether the original ordinance was attached to the May 21, 1985 minutes as required by law.
Consequently, the trial court erred in holding that Baker mooted any issue regarding the validity of the process used by the County to enact the original zoning ordinance, including whether the original zoning ordinance was attached to the minutes of the May 21, 1985 meeting.
2. EGL also contends that the trial court erred in granting summary judgment because material issues of fact exist regarding whether the zoning ordinance is invalid as vague. EGL contends that the zoning maps were not sufficiently identified to be incorporated by reference in the 1985 zoning ordinance.
"Under the [ZPL], the adoption of a zoning map . . . must comply with the same notice and hearing requirements as the adoption of a zoning ordinance. [Cits.]" Mid-Georgia Environmental Mgmt. Group v. Meriwether County, 277 Ga. 670, 674(5), 594 S.E.2d 344 (2004).
Reynolds v. Bd. of Commissioners of Paulding County, 180 Ga.App. 516, 349 S.E.2d 536 (1986). In the December 20, 2010 order, the trial court held that the County has satisfied all four of these tests with regard to the official zoning maps. The court pointed to Article V, Section 5-1 of the 1985 zoning ordinance, which states the following:
The above-quoted Section 5-1, as the trial court ruled, does satisfy the fourth requirement for a valid incorporation by reference. However, the record shows that a question remains regarding the first three tests for incorporation by reference.
Foskey v. Kirkland, 221 Ga. 773, 774(3), 147 S.E.2d 310 (1966). Therefore, the trial court erred by relying on parol evidence to provide a link between the original set of maps incorporated into the 1985 zoning ordinance and the set that is currently located in the zoning office. The importance of ensuring that the maps currently used by the County are identical to the ones incorporated by reference in the zoning ordinance is to provide certainty to the public as to what was actually adopted by the County and also to protect the public from any arbitrary changes of the ordinance or the maps that do not go through the requisite notice process outlined in the ZPL. The County claims that the original, designated volume of zoning maps has always existed and has been kept in the zoning administrator's office. However, the record shows that the County has never produced these originally designated maps which, if they do exist, would certainly settle this issue. As it stands presently, however, the evidence relied upon by the trial court to identify the County's official zoning maps was inadmissible.
Judgment reversed and case remanded.
All the Justices concur, except BENHAM and HINES, JJ., who dissent.
BENHAM, Justice, dissenting.
I write because I respectfully dissent to Division 1 of the majority opinion. The trial court was correct when it concluded that the question of the existence of an original ordinance was rendered moot when we affirmed in East Ga. Land and Dev. Co. v. Baker, 286 Ga. 551, 552, 690 S.E.2d 145 (2010), the establishment of a true and correct copy of the ordinance as the original ordinance. The trial court's decision is in line with the purpose of OCGA § 24-8-2 which is to ensure there is evidence of an original record on file with the County in the event of the record's loss or destruction. Appellant cannot continue to use the ordinance's inadvertent detachment from the minutes as a means to draw out this 14-year-old litigation and avoid, by a technical default, the possibility of an unfavorable outcome.
In the reestablishment action, the trial court issued a March 20, 2009, order finding that the 1985 ordinance was attached to the council minutes on May 21, 1985. Specifically, after holding a bench trial and hearing evidence from appellant and appellees, the trial court unequivocally stated: "The Court finds that a zoning ordinance was adopted by the Newton County Board of Commissioners on May 21, 1985, and apparently had been attached to the official minutes of the meeting." (Emphasis supplied.) The trial court noted that the issue was a question of fact and based its final findings on various evidence presented, including the testimony of the county clerk who, in 1985, attached the ordinance in question to the minutes. In Baker, supra, we confirmed that "the superior court heard the case . . . [, that the superior court] found that the 1985 ordinance was
Accordingly, I would affirm the trial court's grant of summary judgment to appellees on this issue.
I am authorized to state that Justice HINES joins in this dissent.