## Facts

- Christine B. May owned a vacation home near Lake Oconee in Morgan County, Georgia.
- Beginning in 2008, May rented the house to others, typically for about one week at a time.
- At the time May began renting, the County’s zoning ordinance permitted “single-family detached dwellings” in the district but did not expressly address rentals of any duration.
- Despite the ordinance’s silence, the County in practice treated rentals of fewer than 30 days as prohibited and rentals of 30 days or longer as permitted.
- In October 2010, the County amended the ordinance to expressly prohibit most “short-term rentals,” defined as rentals for fewer than 30 consecutive days.
- After a seven-night rental in August 2011, the County issued May a misdemeanor citation under the amended ordinance.
- The criminal case was stayed for several years while related civil litigation proceeded.
- After the criminal case resumed, May moved to dismiss, asserting (among other grounds) that the pre-2010 ordinance was unconstitutionally vague as applied to her rentals and that her use was therefore lawful and grandfathered against the later ban.
- Following a bench trial, May was convicted and sentenced; appellate proceedings resulted in a remand for a ruling on her as-applied vagueness claim.
- On remand, the trial court held the pre-2010 ordinance unconstitutionally vague as applied, found May’s use lawful and grandfathered, and dismissed the citation.

## Issues

1. Whether the County’s pre-2010 zoning ordinance was unconstitutionally vague as applied to May’s week-long rentals of a single-family detached dwelling.
2. If the ordinance was vague as applied, whether May’s short-term rental activity was lawful under the prior ordinance and therefore a grandfathered nonconforming use that could not be prosecuted under the later, explicit short-term rental prohibition.
3. Whether May’s cross-appeal claims required decision if the dismissal was affirmed on the County’s appeal.

## Decision

- The Supreme Court of Georgia affirmed the trial court’s dismissal of the misdemeanor citation.
- The Court held that the pre-2010 ordinance was unconstitutionally vague as applied to May’s week-long rentals because it failed to provide fair notice and permitted arbitrary enforcement based on an uncodified 30-day line.
- The Court concluded that, because the prior ordinance could not validly prohibit May’s rentals as applied, her use was lawful when begun and became a grandfathered nonconforming use not subject to criminal enforcement under the 2010 amendment.
- The Court did not reach the issues raised in May’s cross-appeal because affirmance on the County’s appeal made them unnecessary to decide.

## Legal Principles

- A zoning ordinance is unconstitutionally vague as applied when persons of ordinary intelligence must guess at what conduct is prohibited or when enforcement depends on discretionary, unwritten standards that invite arbitrary application.
- Ordinance text permitting “single-family detached dwellings” and defining “dwelling” in residential terms does not, without clear language, provide notice that short-term rentals are prohibited.
- A use that is lawful under a prior ordinance constitutes a protected preexisting nonconforming use when a later ordinance restricts or bans that use; the government generally may not enforce the new restriction to criminally prosecute the protected preexisting use.
- When an appellate court affirms on a dispositive ground, it may decline to address remaining claims that would not affect the outcome.

## Conclusion

Because the County’s pre-amendment zoning ordinance did not clearly regulate short-term rentals and was enforced through an unwritten 30-day rule, it was void for vagueness as applied to May’s week-long rentals; her use was therefore lawful when begun and grandfathered against the later short-term rental ban, requiring dismissal of the criminal citation.


Morgan County v. May, 305 Ga. 305, 824 S.E.2d 365 (Ga. 2019)