Georgia Association of Zoning Administrators
February 2, 2012
FRANK E. JENKINS, III
JENKINS, BOWEN AND WALKER, P.C.
15 South Public Square
Cartersville, Georgia 30120
- CONSTITUTIONAL CLAIMS
- Taking under Georgia Constitution
The issue is the constitutionality of the existing zoning, not whether the proposed zoning is constitutional or provides a higher and better use.
In a zoning case, the most common challenge is to the constitutionality of the existing zoning classification under a takings analysis. DeKalb County v. Dobson, 267 Ga. 624, 482 S.E.2d 239 (1997).
The zoning ordinance is presumptively valid. Gradous v. Bd. of Commr's of Richmond County, 256 Ga. 469, 471, 349 S.e.2d 707 (1986). "The presumption that a governmental zoning decision is valid can be overcome only by a plaintiff landowner's showing by clear and convincing evidence that the zoning classification is a significant detriment to him, and is insubstantially related to the public health, safety, morality and welfare. Only after both of these showings are made is a governing authority required to come forward with evidence to justify a zoning ordinance as reasonably related to the public interest. If a plaintiff landowner fails to make a showing by clear and convincing evidence of a significant detriment and an insubstantial relationship to the public welfare, the landowner's challenge to the zoning ordinance fails." DeKalb County v. Dobson, 267 Ga. 624, 626, 482 S.E.2d 239 (1997) Id.
The significant detriment can be difficult to show. See Gwinnett Co. v. Davis, 271 Ga. 158, 517 S.E.2d 324 (1999) (evidence that a landowner would suffer economic loss without rezoning was insufficient to show substantial detriment). There are a number of cases where the courts found a property has not suffered a significant detriment. "[A] significant detriment to the landowner is not shown by the fact that the property would be more valuable if rezoned, or by the fact that it would be more difficult to develop the property as zoned than if rezoned." DeKalb v. Dobson, 267 Ga. at 626. Delta Cascade Partners, II v. Fulton Co., 260 Ga. 99, 100, 390 S.E.2d 45 (1990). "[E]vidence only that it would be difficult to develop the property under its existing zoning or that the owner will suffer an economic loss unless the property is rezoned is not sufficient to support the legal conclusion that the owner suffers a significant detriment." Gwinnett Co. v. Davis, 268 Ga. 653, 654, 492 S.E.2d 523 (1997); See Holy Cross Lutheran Church, Inc. v. Clayton Co., 257 Ga. 21, 23, 354 S.E.2d 151 (1987).
After a plaintiff shows significant detriment, he still needs to prove that the current zoning is insubstantially related to the public health, safety, morality and welfare. DeKalb Co. v Dobson, 267 Ga. at 626; Browning v. Cobb County, 259 Ga. 430, 383 S.E.2d 126 (1989) (showing of detriment outweighed by public benefit of present zoning classification). This requires proof that there is no logic to the existing zoning classification. It can be shown by pointing to the incompatibility of the subject zoning with the neighborhood or the changing character of the neighborhood. However, it can be difficult to prove if the property is simply on the boundary of the zoning district, which is commonly referred to as a "fringe area." See Holy Cross Lutheran Church v. Clayton County, 257 Ga. 21, 354 S.E.2d 151 (1987).
Takings claims are challenging to prove under Georgia law, but under federal law they are even more so. Federal courts have held that the property owner must show that the property has been deprived of all economically viable use. Corn v. City of Lauderdale Lakes, 95 F.3d 1066, 1072 (11th Cir. 1996). Cobb County v. McColister, 261 Ga. 876, 413 S.E.2d 441 (1992). Federal takings claims are generally not ripe unless the state has failed to provide a remedy. A federal claim cannot ripen if the state provides method of redress for a taking without just compensation, and the federal courts have held that Georgia provides such a remedy. See Bickerstaff Clay Products Co., Inc. v. Harris County, Ga., 89 F.3d 1481, 1491 (11th Cir. 1996). Because of these holdings, the aggrieved property owner will normally bring the takings claim in superior court.
- Zoning Standards Adopted by the Georgia Supreme Court
- Existing uses and zoning of nearby property;
- The extent to which property values are diminished by the particular zoning restrictions;
- The extent to which the destruction of property values of the plaintiffs promotes the health, safety, morals or general welfare of the public;
- The relative gain to the public, as compared to the hardship imposed upon the individual property owner;
- The suitability of the subject property for the zoned purposes; and
- The length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the property.
- Zoning Standards Adopted by the Georgia Legislature in O.C.G.A. § 36-67-3
- Whether the zoning proposal will permit a use that is suitable in view of the use and development of adjacent and nearby property;
- Whether the zoning proposal will adversely affect the existing use or usability of adjacent or nearby property;
- Whether the property to be affected by the zoning proposal has a reasonable economic use as currently zoned;
- Whether the zoning proposal will result in a use which will or could cause an excessive or burdensome use of existing streets, transportation facilities, utilities, or schools;
- If the local government has an adopted land use plan, whether the zoning proposal is in conformity with the policy and intent of the land use plan; and
- Whether there are other existing or changing conditions affecting the use and development of the property which give supporting grounds for either approval or disapproval of the zoning proposal.
- VESTED RIGHTS AND NONCONFORMING USES
- Fulton County v. Action Outdoor Advertising, JV, LLC, 189 Ga. 347, 711 S.E.2d 682 (2011).
Billboard companies had vested rights to issuance of permit upon filing application for lawfully permitted use. But construction of the billboards would be subject to other legally valid regulations such as height and size restrictions.
B. North Georgia Mountain Crisis Network, Inc. v. City of Blue Ridge, 248 Ga.App. 450, 546 S.E.2d 850 (2001).
A land use that is merely contemplated for the future but unrealized as of the effective date of a new zoning regulation does not constitute a nonconforming use. A property owner may acquire a vested right to use property where he makes a substantial change in position by expenditures in reliance on the probability that a building permit will issue or based upon an existing ordinance and the assurances of zoning officials. But where the only change in position is the purchase of the property itself, the purchase does not confer a vested right to a particular use by the purchaser.
C. Meeks v. City of Buford, 275 Ga. 585, 571 S.E.2d 369 (2002).
The issue in this case is whether a property owner obtained a vested right to use undeveloped investment property in accordance with a variance granted in 1985, 14 years earlier. In finding the earlier variance no longer valid, the court relied on the rule that a property owner must make a substantial change in position, make substantial expenditures or incur substantial obligations in order to acquire a vested right. In this case, the mere reliance on a variance without showing substantial change in position by expenditures or other obligations does not vest a right to the land owner to develop in accordance with the earlier variance which would no longer be valid by virtue of a subsequently adopted zoning ordinance.
D. Cooper v. Unified Government of Athens-Clarke County, 277 Ga. 360, 589 S.E.2d 105 (2003).
A property owner claiming a vested right to use property must make that claim to the local government before an appeal is made to the superior court. A claim of vested right to use property may not be made for the first time in superior court.
E. Union County v. CGP, Inc., 277 Ga. 349, 589 S.E.2d 240 (2003).
The issuance of a building permit results in a vested right only when the permit has been legally obtained, is valid in every respect, and has been validly issued. Where a permit was issued to build a subdivision which was in violation of the flood control ordinance, the permit was not valid and the developer did not obtain a vested right to complete the subdivision.
F. Cohn Communities, Inc. v. Clayton County, 257 Ga. 357,
359 S.E.2d 887 (1987).
"The rule in Georgia is that where a landowner makes a substantial change in position by expenditures in reliance upon the probability of the issuance of a building permit, based upon an existing zoning ordinance and the assurances of zoning officials, he acquires vested rights and is entitled to have the permit issued despite a change in the zoning ordinance which would otherwise preclude the issuance of a permit." The expenditure of $600.00 was not substantial and thus did not accord the developer of a proposed multi-family building a vested right.
G. Corey Outdoor Advertising, Inc. v. The Board of Zoning Adjustments of the City of Atlanta, 254 Ga. 221, 327 S.E.2d 178 (1985).
Property owner did not obtain a vested right to build a sign even though the city issued a permit if the permit was invalid because the location of the sign violated the sign ordinance.
H. The Ansley House, Inc. v. City of Atlanta, 260 Ga. 540,
397 S.E.2d 419 (1990).
The following city ordinance was in issue in this case:
When a nonconforminguse of a major structure or a major structure and premises in combination is discontinued for a continuous period of one (1) year, the structure and premises in combination shall not thereafter be used except in conformity with the regulations of the district in which it is located. Such restriction shall not apply if such cessation is as a direct result of governmental action impeding access to the premises.
The court found that an ordinance such as this one, which attempted to discontinue a nonconforming use based on cessation of use for a specific period of time, impliedly introduced the question of intent to abandon the use by the property owner. That is a fact question, for which evidence must be presented, either in favor of or against intent to abandon the use of the property.
To remove the issue of intent to abandon, the court shows that an ordinance may terminate a nonconforming use by cessation of use for a specified period of time, but the ordinance should state that the nonconforming use may not be resumed regardless of any reservation of an intent not to abandon. That language removes the subjective intent of the property owner as a factor.
I. Barker v. County of Forsyth, 248 Ga. 73, 281 S.E.2d 549 (1981).
"A landowner will be held to have acquired a vested right to continue the construction of a building or structure and to initiate and continue a use despite a restriction contained in an ordinance where, prior to the effective date of the ordinance, any reliance upon a permit theretofore validly issued, he has, in good faith, made a substantial change of position in relation to the land, made substantial expenditures, or has incurred substantial obligations. 3 A. Rathkopf, The Law of Zoning and Planning, 57-3"
J. Henry v. Cherokee County, 290 Ga.App. 355, 659 S.E.2d 393 (2008).
Nonconforming uses run with the land and benefit a subsequent purchaser of the property. But expanding a nonconforming use on the same lot may be prohibited, depending on the language of the nonconforming use ordinance. If it is intended that a nonconforming use may not be expanded on the same lot, the ordinance should state, "no such nonconforming use of land shall in any way be extended, either on the same or adjoining property." Absent this language, a property owner may be allowed to expand a nonconforming use on the same lot.
K. City of Atlanta, et al. v. Starship Enterprises of Atlanta, Inc., 308 Ga. App. 700, 708 S.E.2d 538 (2011).
Court found that adult business establishment could not be resumed as a nonconforming use when it sought approval following a permitted use. The local ordinance provided for loss of nonconforming use status where a conforming use is put in place.
City of Roswell et al. v. Outdoor Systems, Inc., 274 Ga. 130, 549 S.E.2d 90 (2001).
After the City of Roswell's sign ordinance was struck down as unconstitutional, the city enacted a temporary moratorium on applications for billboard signs, but in enacting the moratorium the city did not follow the notice requirements of the Zoning Procedures Law, O.C.G.A. § 36-66-4(a). In a challenge to the moratorium, the Supreme Court found that the temporary moratorium on receiving applications for billboard signs was not a "zoning decision" as defined in the Zoning Procedures Law. The ZPL defines "zoning decision" as a "final legislative action by a local government" that adopts an ordinance, grants a special use permit, approves an amendment to the text of the zoning ordinance, rezones property, or zones annexed property. Therefore, according to the court, the temporary billboard sign moratorium was not "final legislative action" as defined by the ZPL, and thus adoption of the temporary moratorium was not subject to the notice requirements of the ZPL. In addition, the Supreme Court approved the moratorium on the grounds that it was temporary; it was limited in scope to billboards exceeding a specific size; and it was enacted in response to a prior court order invalidating existing sign regulations. Thus, the court found specifically that the moratorium was a reasonable interim action and exempt from the procedural requirements of the ZPL.
IV. BUILDING INSPECTOR'S LIABILITY
- Clive v. Gregory, 280 Ga.App. 836, 635 S.E.2d 188 (2006) cert. granted.
Plaintiffs sued Spalding County among others when they were injured from a collapse of a newly constructed barn on their property. The county building inspector did not perform a final inspection on the barn on the basis that it was constructed like the house on the same property and that no inspection was needed. The court concluded that if the evidence on remand to the trial courts showed that a request was made for a final inspection, then the building inspector had a ministerial duty to inspect the barn and thus could not absolve himself from liability based on a defense of official immunity. The building inspector may have been immune from liability on a claim that he negligently inspected the barn or failed to use sound judgment while inspecting the barn. But in this case, the claim was not that the inspection was negligently performed, but that there was no inspection at all.
B. Vann v. Finley, ____Ga.App. ____ (decided 12/01/2011).
Failure of building inspector to perform duty to inspect home before connected to electrical power is ministerial duty for which an inspector may be liable if failure to inspect is cause of injury or damages.
V. ADMINISTRATIVE DECISIONS
A. Jackson County v. Earth Resources, Inc., 280 Ga. 389, 627 S.E.2d 569 (2006).
In reviewing a decision by a local government in either granting or denying a conditional use permit, the court is bound to uphold the decision of the local government where there is any evidence supporting its decision. The court in this case found that the local government's denial of a conditional use permit to develop a construction and demolition landfill was supported by the evidence where there was more than merely "generalized fears" presented by neighboring property owners. Evidence of specific concerns was raised as to truck traffic to and from the site of the landfill. Moreover, the project was not consistent with a comprehensive land use plan which called for mid-density residential use, an appraiser opined as to a negative effect on surrounding land values, and the property owner's representations concerning ground water contamination were rebutted. The Jackson County Zoning Ordinance granted discretion to the county on whether to grant or deny a conditional use permit. It provided in Sec.13-60 that "[t]he conditional use would be consistent with the needs of the neighborhood or the community as a whole, be compatible with the neighborhood and would not be in conflict with the overall objective of the comprehensive plan." Because of discretion given to the county, it may consider various factors in determining whether a conditional use permit would meet these criteria. For these reasons, the court upheld the county's denial of the conditional use permit.
B. Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995).
The property owners appealed the denial of a variance by the county and challenged the county's ordinance which required appeals to the superior court by writ of certiorari and contended that they were not afforded a due process hearing before the county's board of appeals.
The court concluded that the county's ordinance may specify the proper judicial vehicle for appeals of administrative decisions on variances. In this case, the county's ordinance required that the disappointed property owner travel by way of writ of certiorari from the board of appeals to the superior court. This is because the decision making process by the board of appeals is the nature of a judicial act; that means that the board of appeals determines the facts from the evidence and applies the ordinance's legal standards to those facts to reach a decision.
The court rejected the plaintiffs' contention that they were denied a due process hearing before the board of appeals. The court found that the due process requirements were met in that (1) the board gave notice of the hearings; (2) the plaintiffs were allowed to explain their reasons for requesting the variance; (3) they presented evidence in support of the application, "including letters, photographs, plats, and schedules of property values in the community;" (4) they answered questions from board members; (5) a verbatim transcript or detailed account of the hearing was available and formed an adequate basis for judicial review; and (6) the board explained to the plaintiffs the reasons for the denial and put that in writing. The plaintiffs further asserted that they were denied the opportunity to cross-examine witnesses, but that was rejected by the court because the plaintiffs never sought the opportunity to cross-examine witnesses. However, this suggests that a property owner, or indeed an interested party in opposition to the grant of a permit, should have the opportunity to present testimony by witnesses and to cross-examine witnesses to satisfy due process requirements.
C. City of Roswell v. Fellowship Christian School, Inc., 281 Ga. 767, 642 S.E.2d 824 (2007).
Fellowship Christian School (FCS) applied to Roswell for a conditional use permit to construct several new buildings including a 1500-seat football stadium. After considering the evidence, the city approved the permit for the buildings, but did not approve the stadium.
In its decision, the Supreme Court upheld the decision of the city to deny the stadium. It reasoned that the city's conditional use permit ordinances granted the city discretion on acting on an application rather than mandating approval of the application as a matter of right. Only if the city was guilty of a gross abuse of discretion would the denial of the permit be reversed. The court also concluded that if there is "any evidence" to support the city's decision, it must be upheld.
The evidence presented to the city showed that there already existed two stadiums at other high schools within one mile of FCS's property. FCS's own traffic study showed that simultaneous varsity football games created the potential for multiple athletic events along the road. The evidence showed that two or three simultaneous events along the two-lane road would create severe traffic congestion following a football game.
The court found that traffic congestion is a valid consideration in regulation of land use, and since the evidence showed that FCS's proposed stadium would exacerbate an already existing traffic problem, it was reasonable for the city to deny the application for a permit to construct the stadium. According to the court, "preserving the character of an existing neighborhood is a legitimate purpose of zoning and planning."
Since the evidence showed a rational basis for the denial of the permit for the stadium, the court rejected FCS's contention that it was denied equal protection.
VI. FINALITY OF ADMINISTRATIVE DECISIONS
Taco Mac v. City of Atlanta Board of Zoning Adjustment, 255 Ga. 538, 340 S.E.2d 922 (1986).
This case involved the timeliness of an appeal to the superior court of a denial of a variance. The superior court ruled that the oral denial when given to the property owner started the time for running of the appeal, and therefore, the property owner had 30 days from that date to file the appeal. Since the appeal was not filed within that time, it was dismissed.
The Supreme Court reversed the decision of the superior court. It reasoned that an appeal from a decision of the local government, especially an administrative decision such as a variance, may be timely filed within 30 days of the entry of an order or decision signed by the appropriate official. In this case, the official notification of the denial of the variance was sent by letter to the property owner. Since the appeal was filed within 30 days of the letter signed by the appropriate official, the appeal was timely.
This means that an administrative decision by the local government thus becomes final when the decision of the administrative board is put in writing and signed by the appropriate official. See Fortson v. Tucker, 307 Ga.App. 694, 705 S.E.2d 895 (2011).
VII. CONDITIONAL ZONING
Cross v. Hall County, 238 Ga. 709, 235 S.E.2d 375 (1977).
Conditional zoning is valid in Georgia. It is zoning that is subject to conditions not applicable to other property. Conditions will be upheld if imposed for the protection or benefit of neighbors to ameliorate the effects of the zoning change.
VIII. ENFORCEMENT OF ZONING CONDITIONS
Cherokee County et al. v. Martin, 253 Ga.App. 395, 559 S.E.2d 138 (2002).
Cherokee County rezoned Martin's property to a PUD classification based on a site plan which showed that a portion of the property would be used as an "assisted living" facility. But Cherokee County in the adopting ordinance approving the rezoning did not stipulate that the rezoning must comply with the site plan. Later Martin decided to build an apartment complex instead of an "assisted living" facility, but the county refused to issue a permit although both uses were permitted in the zoning district. Thereafter, Martin sued Cherokee County contending he had the right to build the apartment complex.
Finding in favor of Martin and his right to build the apartment complex, the court resolved that there was no language within the rezoning resolution adopted by the county which referenced conditions or required Martin to abide by the particular use specified in his site plan. The court reasoned that since a zoning ordinance restricts an owner's right to freely use his property, it must be strictly construed in favor of the property owner and never construed beyond its explicit terms. Furthermore, a court may not infer that the zoning of property is conditioned to a particular use, but should require that any conditions be expressly made a part of the rezoning resolution. "Rezoning is conditional only if the conditions are set forth in the rezoning resolution itself or if an examiner of the resolution would be alerted to the existence of such conditions." (at p. 397)