A Georgia developer planned 97 townhomes, 46 of them within 1,000 feet of a proposed waste facility; a November 2 court upheld the facility’s permit because the homes were still unbuilt when the application was submitted

Representative Image (AI-generated)

A proposed residential neighbourhood can face uncertainty when an industrial facility is planned nearby, particularly when future homes fall within the distance restricted by local zoning rules. A Georgia developer faced this situation after a county approved a permit for a waste processing facility near its planned 97-townhome community. Although 46 of the proposed homes were within 1,000 feet of the proposed waste handling area, construction had not begun when the facility’s permit application was submitted.In an opinion dated November 2, 2026, the Georgia Court of Appeals upheld the permit approval in Norhaven Partners, LLC et al. v. Bartow County et al., case number A26A1626. The ruling, available on Justia, rejected the developer’s challenge to Bartow County’s decision to grant a conditional use permit to Justin Rice and Rice Commercial Investments, Inc. The court concluded that the county’s zoning restriction applied to constructed residential buildings or structures, rather than undeveloped land designated for future homes.

Developer planned 97 townhomes near industrial property

The dispute involved two neighbouring properties in Bartow County, Georgia. In January 2023, the county approved conceptual site plans submitted by Norhaven Partners and Peeples Owner LLC for a 97-unit townhome development known as Overlook on Pettit. By October 2023, the plans had received full approval, including a land use disturbance permit.The neighbouring property, located east of the proposed community, was zoned for heavy industrial use and belonged to Justin Rice. It was already being used for activities such as mulch materials processing, wood shredding and rock crushing.On July 2, 2024, Rice applied for a conditional use permit (CUP) to expand operations to include a recovered materials processing and solid waste handling facility for construction and demolition materials. The proposal raised concerns for Norhaven because an overlay of the two development plans showed that 46 of its 97 planned townhomes would fall within 1,000 feet of the proposed waste handling area. The developer argued that the facility would violate the county’s zoning restrictions.

Zoning ordinance became central to the dispute

The main issue involved Section 9.5.6 of the Bartow County Zoning Ordinance. It prohibited a waste handling area, measured from the chain-link fence boundary, from being located within 1,000 feet of any residential dwelling used at the time of the permit application. Norhaven relied on another provision, Section 3.1, which stated that the terms ‘used’ or ‘occupied’ included land or buildings intended, arranged or designed for use or occupancy. It argued that its approved townhome development should receive protection under this provision even though the homes had not been constructed.However, Section 3.2 defined a dwelling as a building or other structure designed, arranged or used for temporary or permanent living quarters. It also defined a structure as something constructed or erected and requiring a location on the ground or attachment to something located there. During a public hearing in August 2024, the county planning commission recommended approving Rice’s application with conditions. These included constructing a berm along the boundary adjoining residential properties and prohibiting waste incineration.The county commissioner considered the application at a public hearing on September 4, 2024. Norhaven representatives and other residents opposed the proposal, arguing that the 1,000-foot restriction would be violated. Nevertheless, the commissioner approved the permit with conditions, including a requirement to maintain the separation distance from residential homes.

Developer challenged the permit approval

On October 3, 2024, Norhaven filed a petition seeking judicial review of the county’s decision. It maintained that the facility would violate the zoning ordinance because 46 planned townhomes were within the restricted distance. During a July 2025 hearing, Norhaven argued that residential dwellings did not need to be physically constructed to receive protection under the zoning provisions. Rice, however, maintained that the ordinance applied only to residential structures existing when the permit application was submitted.In September 2025, the trial court sent the matter back to the county commissioner for additional factual findings on whether the proposed waste handling area was within 1,000 feet of any residential dwelling. The commissioner subsequently found that the facility was at least 1,000 feet from every residential dwelling being used when Rice submitted his application. The finding relied on hearing testimony confirming that, although some site work had taken place, construction of the townhomes had not begun.On January 5, 2026, the trial court rejected Norhaven’s remaining arguments and upheld the permit approval. The developer then appealed the decision.

Appeals court upheld the conditional use permit

Norhaven raised three main arguments before the Georgia Court of Appeals. It challenged the trial court’s approach to reviewing the county proceedings, its decision to send the matter back for additional findings and its conclusion that the commissioner had followed the instructions on remand. The appeals court acknowledged that the trial court had incorrectly interpreted the scope of its review as being limited to the public hearing transcript. However, it found that this error did not affect the outcome because the trial court had also considered the relevant zoning provisions.On the central issue, the appeals court concluded that the definition of a residential dwelling required an actual constructed building or structure intended for living quarters. Undeveloped land planned for future residential construction did not qualify as a dwelling under the ordinance. The court also found sufficient evidence supporting the commissioner’s conclusion that no residential dwellings had been constructed on Norhaven’s property when Rice applied for the permit. It therefore rejected the developer’s arguments and affirmed the trial court’s decision.The November 2 ruling left Rice’s conditional use permit in place. It did not determine whether the proposed townhomes could eventually be affected by the facility’s operations. Instead, the decision established that the specific 1,000-foot restriction did not apply to homes that were still unbuilt when the permit application was submitted.