AN OVERVIEW OF LOCAL GOVERNMENT LAND USE REGULATION
Brandon L. Bowen, Esq.
JENKINS, BOWEN AND WALKER, P.C.
15 South Public Square
Cartersville, Georgia 30120
24 Drayton Street, Suite 1000
Savannah, Georgia 31401
|TABLE OF CONTENTS|
|Chapter 1||Introduction to Zoning||1|
|Chapter 2.||Proper Adoption of the Zoning Ordinance and Map,|
and Potential Challenges
|Chapter 3||Legislative and Administrative Decisions, and Appeals||18|
|Chapter 4.||Ex Parte Contacts and Other Ethical Considerations||32|
|Chapter 5.||Vested Rights and Non-Conforming Uses||47|
|Chapter 6.||Annexation Law in Georgia||54|
|Chapter 7.||Sign Ordinances||77|
|Chapter 8.||Zoning and Federal Law||91|
Chapter 1, Introduction to Zoning
I. A history of zoning
Zoning is the process by which a local government restricts the use of real property and provides for the allowable land uses within its jurisdiction. It is the modern way of controlling land uses. Prior to this century, most land use controls were enacted through nuisance laws or through restrictive covenants, the latter of which would bind and control the use of property within a limited area subject to the reach of a restrictive covenant. By use of nuisance law, the locality could enjoin certain uses, but only if those uses constituted a nuisance or were is some way harmful to neighboring land uses.
Early in this century the concept or process of zoning was first enacted into local ordinances in the United States--the first being in New York City on July 25, 1916. These early zoning ordinances were simple and usually provided for no more than three zoning classifications or uses within a jurisdiction.
The basic concept of zoning as it was first enacted, and as it is often used today, is that a local jurisdiction is divided into different districts and each district specifies particular uses which will be permitted within that district.
During the early part of this century and up into the 1920's, many states had approved zoning for use by local authorities, but when challenged in court, the results were mixed. Many state courts upheld the constitutionality of zoning, while some disapproved its use on the ground that zoning was an unconstitutional use of police power.
Finally, in 1926, in the case of City of Euclid, Ohio v. Amber Realty Company, 272 U.S. 365, 47 S.Ct. 114 (1926), the United States Supreme Court upheld a zoning ordinance enacted by the town of Euclid as a constitutional exercise of police power. Once that approval was given by the highest court, many states thereafter authorized the use of zoning as a way of regulating land use within a municipality or other local government unit.
Zoning was approved in the State of Georgia in 1937 by an amendment to the 1877 constitution which was codified at Georgia Code Annotated § 2-1826. This amendment gave the General Assembly the authority to grant to any city or county the right to pass zoning and planning laws provided the local authority had a population of 1,000 or more according to the Federal census of 1930. Upon the strength of that constitutional provision, the General Assembly from time to time granted to local authorities, counties or cities, the right to exercise the power of zoning within their respective jurisdictions.
In 1957, the General Assembly adopted an enabling statute which authorized all local governments in the state to exercise the power of zoning and established detailed procedures by which zoning should be implemented. When zoning was adopted by a local authority pursuant to the 1957 enabling statute, the city or county was required to conform strictly to the procedures for zoning and the adoption of rezoning amendments. No local jurisdiction was required to have zoning, but if zoning were adopted, the statutory provisions were required to be followed.
The authority to zone property changed drastically in the 1983 Constitution. In Art. 9, § 2, Para. IV, the constitution granted to each county and municipality the right to adopt a land use plan and exercise the power of zoning. This unusual provision in zoning law granted to each city and county the constitutional right to exercise the power of zoning without necessity of the adoption of enabling acts or other approval by the General Assembly. Therefore, the authority to adopt zoning ordinances was granted directly to cities and counties by the Georgia Constitution rather than by the General Assembly. The only restriction placed upon local governments by this constitutional provision is that the General Assembly may enact general laws establishing procedures to be followed by the local governments in the exercise of their constitutionally granted zoning power.
Today zoning ordinances in this state are more complex than the original ordinances which were enacted at the inception of zoning practices in this country. However, the concept is essentially the same today in that zoning ordinances establish districts within their jurisdiction and each of those districts specifies only those uses that are permitted within the district. Often, within a zoning district, buildings and structures are restricted to allow only those which accommodate land uses permitted within the district.
Despite all the sophisticated procedures that have evolved in zoning practices, the basic concept is still the same as it was in the City of Euclid where the United States Supreme Court first held that zoning was constitutional.
II. Zoning in Georgia
A. Home Rule Provision of Georgia Constitution
Unlike most legislative authority, which is vested in the General Assembly, the power to zone property is granted directly to local governments by the Georgia Constitution, subject only to General Assembly's authority to enact procedures regulating exercise of that power:
"The governing authority of each county and of each municipality may adopt plans and may exercise the power of zoning. This authorization shall not prohibit the General Assembly from enacting general laws establishing procedures for the exercise of such power." Art. IX, § 2, ¶ 4 of the Georgia Constitution.
As we will discuss later, the General Assembly has enacted such procedures, in the form of the Zoning Procedures Law. Likewise, the Georgia Court have developed standards and rules which govern the exercise of the zoning power.
B. Zoning is Exercise of Police Power
The distinction between use of eminent domain and use of the police power is that the former involves the taking of property because it is needed for public use while the latter involves the regulation of the property to prevent its use in a manner detrimental to the public interest. Many regulations restrict the use of property, diminish its value or cut off certain property rights, but no compensation for the property owner is required. Among the valid regulations of property are abatement of nuisances, zoning, health regulations, and building standards. See Pope v. City of Atlanta, 242 Ga. 331, 249 S.E.2d 16 (1978). The fact that a land use regulation is designed only to improve aesthetics does not render it unreasonable exercise of police power. See Parking Ass'n of Georgia, Inc. v. City of Atlanta, Ga., 264 Ga. 764, 450 S.E.2d 200 (1994).
C. Zoning Is Not Normally a Taking
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. See 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).
The decisions recognize that increasing density or intensity almost always increases value, but that does not prove that the current zoning is unconstitutional. "[I]n zoning challenges, the pertinent question is not whether rezoning would increase the value of property, but rather whether the existing zoning classification serves to deprive a landowner of property rights without due process of law. Hence, the evidence that the subject property would be more valuable if rezoned border on being irrelevant." DeKalb Co. v. Dobson, 267 Ga. at 626; see, DeKalb Co. v. Chamblee Dunwoody Hotel Partnership, 248 Ga. 186, 190, 281 S.E.2d 525 (1981). The notion that a property is not zoned for its "highest and best use," a concept appraisers like to use, does not show that the existing zoning imposes a significant detriment. Gwinnett Co. v. Davis, 268 Ga. at 654. Furthermore, "the fact that the property currently has no economic return to the owners is immaterial; by definition, undeveloped property never offers owners any economic return." DeKalb Co. v. Chamblee Dunwoody Hotel Partnership, 248 Ga. at 190. All this is not to say that the significant determinant requirement is an insurmountable burden; courts can and have found a significant detriment on numerous occasions, but the property owner will need to be prepared to put forth a detailed and compelling case on this point.
A case to discuss the concept of significant detriment is Legacy Inv. Group, LLC v Kenn, 279 Ga. 778, 621 S.E.2d 453 (2005), which was on appeal from the grant of the local government's motion for summary judgment. There, the property owner had paid about $12,000 per acre for land zoned for agricultural land, with the presumption that it would be rezoned for residential uses. When the rezoning was denied, the property owner appealed, arguing that it could not be developed in an economically feasible fashion based upon the purchase price. The superior court found that the fact that the property owner overpaid for the property did not mean that the zoning ordinance was a significant detriment to the property. On appeal, the Supreme Court reversed because the evidence was that the property would have to be purchased for no more than just over $5,000 per acre in order to be developed in an economically viable manner, and the county's appraiser said the property was worth between $5,000 and $9,000 per acre. Thus, giving the non-movant the benefit of all the inferences from the evidence, the property would have to be purchased for several thousand dollars less per acre than it was worth in order to be developed in an economically feasible manner. The court also mentioned that the evidence was also that the property was not suited for agricultural uses; while not discussed much by the court, this would seem to be an important piece of evidence.
In City of Tyrone v. Tyrone, LLC, 275 Ga. 383, 565 S.E.2d 806 (2002), the Supreme Court found that part of a property subject to the appeal of a rezoning denial suffered a significant detriment, but part did not. The property in question was partially zoned for agricultural-residential uses, and partly zoned for office-institutional uses. The property owner wanted it all zoned for commercial uses. The court held that there was evidence that the portion zoned for agricultural-residential could not be developed as zoned, but there was no such evidence as to the office-institutional portion, and so the trial court erred in finding a significant detriment to that portion of that property. In reaching this conclusion, the Supreme Court discussed the fact that the owner had not tried to develop the property for office-institutional uses, and the fact that there was evidence of a need for such property in the community and region. From these cases, we can see that the evidence needed is not that the property can make more money with the rezoning, but that the property is not suited for development under the existing zoning classification, such that it cannot be used in an economically feasible manner under the existing zoning classification.
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).
The degree of consistency between the existing and proposed zoning and the comprehensive or future land plan is a common element in this analysis. In City of Atlanta v. TAP Associates, 273 Ga. 681, 683, 544 S.E.2d 433 (2001), the court placed great emphasis on the fact that the existing zoning was consistent with the land use plan of Atlanta: "[T]he city's zoning decision is consistent with the policies and long-range planning goals for the area as adopted in the comprehensive development plans and the Buckhead transit station report….The fact that TAP presented evidence that its proposed mixed-use development would also protect the single-family neighborhood is irrelevant. The issue is not whether the city could have made a different decision or better designation in zoning TAP's property, but whether the choice that it did make benefits the public in a substantial way." 273 Ga. at 685. Thus, if an existing zoning classification is consistent with the comprehensive plan, it is more likely to be upheld.
D. Superior Court's Power and Limits
Because the power to zone property has been granted to the local governments, the courts have no power to zone, but must remand for determination of constitutional zoning classification. Town of Tyrone v. Tyrone LLC, 275 Ga. 383, 384, 565 S.E.2d 806 (2002) If the existing zoning is struck down, court should remand the matter for a constitutional zoning classification to be imposed. Declaring property free from zoning too harsh, as generally would be criminal contempt. See Alexander v. DeKalb County, 264 Ga. 362, 444 S.E.2d 743 (1994).
Chapter 2, Proper Adoption of the Zoning
Ordinance and Map, and Potential Challenges
While we have discussed that the ability to zone rests in the local government, the authority to set procedure lies with the General Assembly, and it has done so with the Zoning Procedures Law and other laws. The burdens on adopting a legitimate zoning ordinance or decision are not great, but the courts have required strict compliance for the resulting decision to be upheld.
II. ADVERTISING REQUIREMENTS
A. Notice of the public hearing on the zoning ordinance, the policies and procedures for conducting public hearings and the standards governing the exercise of zoning power must be published in a newspaper of general circulation within the territorial limits of the jurisdiction at least 15 days, but not more than 45 days prior to the public hearing before the governing authority. (O.C.G.A. §§ 36-66-4(a); 1-3-1(d)(3)).
B. The notice must state the time, place and purpose of the hearing. (O.C.G.A. § 36-66-4(a)). (Purpose shall include the adoption of a zoning ordinance, the adoption of policies and procedures for calling and conducting public zoning hearings, and the adoption of standards governing the exercise of zoning power.)
1. The notices of the public hearing on each of these ordinances need appear only one time;
2. If there is no newspaper of general circulation in the County, then the notice presumably should appear in the newspaper in which legal advertisements appear (O.C.G.A. § 9-13-142);
IIi. ADOPTION OF POLICIES AND PROCEDURES WHICH GOVERN THE CALLING AND CONDUCTING OF ZONING HEARINGS. (O.C.G.A. § 36-66-5)
A. At the time and place designated in the advertised public hearing, the local government shall call a public hearing on the proposed policies and procedures for calling and conducting zoning hearings.
B. At the hearing, copies of the proposed policies and procedures shall be made available to the attendees prior to the beginning of the public hearing;
C. Following the hearing, the governing authority should officially adopt the policies and procedures.
D. The Zoning Procedures Act does not specify what policies and procedures must be adopted with the exception that the procedures must provide equal time for proponents and opponents to make presentations, with a minimum of ten minutes per side. (O.C.G.A. § 36-66-5(a)).
IV. Adoption of standards governing the exercise of the zoning power. (O.C.G.A. § 36-66-5(b))
A. At the time and place designated in the advertised public hearing, the local government shall call a public hearing on the standards governing the exercise of the zoning power.
B. Following the hearing, the governing authority should officially adopt the standards.
V. Requirements applicable to both standards and policies and procedures
A. Standards and policies and procedures may be incorporated into the zoning ordinance and adopted along with the zoning ordinance, but the public hearings on the standards and the policies and procedures should be conducted before the public hearing on the zoning ordinance.
B. At every public hearing, copies of the standards and policies and procedures should be available for the attendees.
C. The standards must be in writing and copies available to the public.
D. Suggested standards are set out in Guhl v. Holcombe Bridge Road Corp., 238 Ga. 322, 232 S.E.2d 830 (1977); O.C.G.A. § 36-66-5(b). (Mandatory standards are set forth in O.C.G.A. § 36-67-1 et. seq. for counties with a population of 500,000 or more and municipalities within such counties with a population of 100,000 or more.)
VI. The proposed zoning ordinance and official zoning map or maps
A. The official zoning map or maps to be adopted must be physically present at each hearing and the minutes of the meeting should say this. The same is true for the text of the ordinance, the standards, and the policies and procedures.
B. The map should have a title that is incorporated into and referenced in the text of the zoning ordinance. See O.C.G.A. § 36-1-25.
C. Zoning ordinance should specify the zoning map will be maintained in an administrator's office.
VII. Relevant and Recent Cases
A. Tilley Properties, Inc. v. Bartow County, 261 Ga. 153, 401 S.E.2d 527 (1991).
Bartow County denied the application of a property owner to rezone his property to allow mining, and owner filed action seeking the rezoning and a writ of mandamus to compel county to issue a certificate of zoning compliance. The Supreme Court held that the county's failure to comply with the zoning procedures law in enacting the ordinance, by not holding a public hearing, rendered it void. Moreover, there was no valid restriction on the property, thus requiring issuance of a writ of mandamus.
B. McClure v. Davidson, 258 Ga. 706, 373 S.E.2d 617 (1988).
After the Walton County Board of Commissioners decided to rezone neighboring property for a radio tower, landowners brought action seeking declaratory judgment that rezoning was void and injunction prohibiting neighboring landowners from building the tower. The Supreme Court held that the notice requirement of Zoning Procedures Law applied to rezoning by board of commissioners. Also, the board of commissioners' failure to comply with Zoning Procedures Law's notice requirements invalidated the zoning action.
C. Mid Georgia Environmental Management Group, L.L.L.P. v. Meriwether County, 277 Ga. 670, 594 S.E.2d 344 (2004).
A developer sought to construct a landfill on property not zoned for landfills, and attempted to obtain the EPD-required certificate of land use approval from the local government by arguing that the zoning ordinance was not adopted in compliance with the ZPL. The trial court and the Supreme Court held that the evidence was sufficient to show that the ordinance complied with the ZPL. The developer's contention was based on two irregularities in the county's record keeping. First, the county clerk failed to maintain a record of superseded provisions of the zoning ordinance. The court held that there is nothing in the ZPL that conditions validity of the zoning ordinance on the maintenance of a record of superseded portions of the ordinance. The implication is that the local government may not be able to enforce old portions of the ordinance if they do not keep a copy, but that does not affect the validity of the ordinance itself. The second fact dealt with the official zoning map, which also must be adopted in compliance with the ZPL. The minutes of the local government reflected that the official map was adopted after due notice and a public hearing, and thereafter was kept by the zoning administrator. Prior the time of trial, the original zoning administrator left his position, and after a gap of a few months, a new zoning administrator was hired. The new zoning administrator testified that he was unsure which of two maps in his office was the official zoning map, and which was the working zoning map. The court said that it did not matter, because there was sufficient evidence to show that whichever was the official zoning map, it was adopted in compliance with the ZPL, and regardless, both maps showed that the subject property was not zoned for landfills.
D. City of Flovilla v. McElheney, 246 Ga. 552, 272 S.E.2d 287 (1980).
The City brought an action for an injunction against a man who placed a mobile home on a lot zoned residential. The Supreme Court, held that the ordinance was invalid where it required a nonexistent city official to certify zoning map and parol evidence could not be used to establish that the uncertified map was the one referred to in the ordinance.
E. Waldrop v. Stratton & McLendon, Inc., 230 Ga. 709, 198 S.E.2d 883 (1973).
Plaintiff sought a writ of mandamus against building inspector of city on ground that an existing zoning ordinance was void because it was not legally adopted and recorded in minutes of the city. The city by oral testimony sought to introduce the book of zoning laws of the city into evidence and to prove by such oral testimony that these were the zoning laws adopted by this ordinance. The Supreme Court held that the ordinance was void for failure to have it set out in full in minutes of the city and that parol evidence is insufficient to prove the contents of a municipal ordinance.
F. Hulsey v. Smith, 224 Ga. 783, 164 S.E.2d 782 (1968).
In a suit to seek an injunction to stop a property owner from maintaining a junkyard, the Supreme Court held that parol evidence is not admissible to prove the existence of a zoning ordinance or to identify, without more, a purported zoning map which is an integral part of such an ordinance. Therefore, the plaintiffs could not maintain the action to enjoin the defendant from maintaining a junkyard because the purported zoning regulations were never legally adopted by the Douglas County Commissioners.
Chapter 3, Legislative and
Administrative Decisions, and Appeals
I. Distinguishing administrative and legislative decisions
Zoning decisions at the local government level are of two types: legislative and administrative, which is sometimes referred to as quasi-judicial. Different procedural rules apply depending on which type of decision is being made. It is therefore imperative to understand the different nature of these decisions and then how the procedural rules differ.
II. Administrative zoning decisions
Administrative zoning decisions are defined, not by the body or board that makes the decision, but by the nature of the decision being made. For example, at one instance a board of commissioners may make administrative decisions, such as the grant of a variance, while at another it makes legislative decisions, such as the rezoning of property. We must then examine the nature of the decision to determine whether it is administrative or legislative.
Usually, local government administrative decisions are quasi-judicial in nature. That is because the decisions are made in accordance with the typical judicial decision-making process. They usually directly affect the rights of individuals or entities who have an interest in the property subject to an administrative decision. Typical local administrative zoning decisions include the grant or denial of variances, approval or disapproval of subdivision plats, and review of administrative decisions made by zoning officials. The body considering the decision receives evidence, usually during a public hearing, decides the facts, and applies the facts to the standards in the zoning ordinance to arrive at a decision either approving or not approving the issue at hand.2 Special concern is required when the body hearing the administrative decision is a legislative body, such as when there is an appeal from a Board of Appeals issuance of a variance to a Board of Commissioners. In such cases, the Board of Commissioners is sitting effectively in a quasi-judicial capacity, and should act accordingly.
Legislative decisions are those which have broad-based application and are in the nature of policy making by the local government. They are more apt to apply to the general population than impact specific individuals. Adoption of an ordinance, in this context a zoning ordinance, is the most typical example of legislative decision making. Under the Georgia Zoning Procedures Law, the General Assembly defined the following as legislative decisions: adoption of a zoning ordinance, amendment to a zoning ordinance, the rezoning of property from one zoning classification to another, and the grant of a special use permit. (However, special use permits are becoming a sort of hybrid beast and are discussed below). Since these are deemed legislative decisions, only the governing body of the local government may make them. In the case of cities, that is reserved exclusively to the city council or city commission; in the case of counties, legislative decisions are reserved exclusively to the board of commissioners. A planning commission appointed by the local governing body may make recommendations to the governing body, but the ultimate decision rests within the legislative discretion of the local governing body.
Legislative decisions are not bound by specific rules or standards. They are intended to have broad application, and though subject to constitutional limitations, legislative decisions are based upon broad discretionary powers inherent in the legislative process. This is true although the local government is required to adopt standards governing decisions of rezoning property.
III. PROCEDURAL DUE PROCESS PROTECTION IN ADMINISTRATIVE ZONING HEARINGS
Since administrative zoning decisions typically affect the rights of individuals whose property is subject to regulation by a local government, certain procedural due process safeguards are necessary. Those safeguards generally include notice of a hearing, a right to present evidence, a right to representation by counsel, the right to cross-examine witnesses, and the right to a written decision based on the evidence presented at the hearing.
Due process at the local government level does not require strict procedural rules as would be expected in a court of law. Not only that, public hearings are conducted by non-lawyers who are not expected to follow rules of civil procedure as required of a court. Thus, a more relaxed proceeding is acceptable, although it must meet a minimal level of fairness For added protection, administrative zoning decisions are subject to appeal to the superior court.
Of supreme importance is the right to a fair hearing and a written decision based on the record of evidence adduced at the hearing.
IV. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS
A. Importance of Exhaustion of Administrative Remedies
Prior to attempting to take an administrative matter to Court, it is important to make sure the party has exhausted any administrative remedies available. That would include filing any sort of administrative appeal possible, to the next higher authority. Otherwise, the case is subject to dismissal. In the limited circumstance where the appeal is back to a body that has decided the matter previously, an administrative appeal can be found "futile" and deemed not required. However, this is a risky gambit, and a litigant is better off attempting to exhaust any administrative appeal before filing suit.
B. Standing to Bring Challenge
Of course, an essential question the Court will ask on any appeal is whether the plaintiff has standing. There are many grounds for standing in Georgia law, such as taxpayer standing for ultra vires actions; standing to bring challenges to deprivation of constitutional rights; and the substantial-interest/aggrieved citizen standing test for zoning appeals, among others. A plaintiff takes standing where he can find it, and if any of those can be satisfied, that will be sufficient. Often, the zoning ordinance will contain a statement specific to administrative appeals akin to "any person aggrieved by the decision" can bring a challenge. In RCG Properties, LLC v. City of Atlanta Bd. of Zoning Adjustment, 260 Ga.App. 355, 579 S.E.2d 782 (2003), the City tried to challenge the standing of RCG to bring its challenge, and the Court dismissed it as being raised too late since it was not raised before the BZA. The Court relied upon the notion that no new evidence can be presented in an appeal of a quasi-judicial decision, and the standing issue was raised for the first time in superior court, and thus too late. Thus, if the standing issue is not raised at the first hearing, it is too late to challenge it later.
However, the Supreme Court did not appear to apply that rule in Massey v. Butts County, 281 Ga. 244, 637 S.E.2d 385 (2006), where it considered the standing to challenge the issuance of a building permit for a barn, a clearly administrative, quasi-judicial proceeding. A footnote in the case notes that the record does not contain the portion of the Butts County Zoning Ordinance containing procedures for appeals and "accordingly we will not address appellant's standing to appeal the decision of the Butts County Board of Zoning Appeals." 281 Ga. at 245. Yet, despite not caring to address standing to bring the challenge below, the Court went on to find that the appeal, seeking a declaration that the barn was not a permitted use, and an injunction requiring its removal, must be dismissed for lack of standing. The Court further found that the "substantial-interest/aggrieved citizen" test applied to all attempts to bring equitable relief or declaratory relief to attack or enforce a zoning decision.
This opinion, which overtly refers to two lines of cases on standing, would seemingly overrule sub silentio the decision of the Court of Appeals in Rock v. Head, 254 Ga.App. 382, 562 S.E.2d 768 (2002), where the Court held that nearby property owners have standing to bring an appeal to challenge a zoning decision without showing special damages: "It is well settled that property owners may seek to prevent their neighbors from developing or using their property in violation of its existing zoning without showing special damages." 254 Ga. at 383. Apparently, it is not well-settled enough!
A cautious practitioner would do well to have evidence to satisfy the substantial-interest/aggrieved citizen standing test even in an administrative appeal, as it is never clear which standard the Courts will choose to apply.
C. Nature of Appeal
In Georgia, appeals of administrative local government decisions are taken directly to the superior court. Appeals are initiated in one of three ways: writ of certiorari, appeal, or mandamus. The local government dictates the method or procedure for appeal in its ordinance. For example, the local government may provide that appeals from local government administrative decisions must be made to the superior court by writ of certiorari. In such cases, the procedures under O.C.G.A. chapt. 5-4 must be followed. Those provisions for certiorari apply to appeals from decisions of inferior tribunals to the superior court. The second procedure is found in O.C.G.A. chapt. 5-3, which deals with appeals from inferior tribunals to the superior court. The standards are different than certiorari, but the procedures are detailed in the appeals chapter and must be followed. The third is by petition for mandamus. This procedural vehicle for appeal is required when the local zoning ordinance is silent as to the method of appeal to the superior court.
D. On the Record Review
Judicial review of a local government zoning or administrative decision is a review of the record only. Our constitutionally-based doctrine of separation of powers requires a very limited judicial review of administrative decisions. Thus, the court in its review will not receive new evidence, but will review the record of evidence presented to the administrative agency. The court does not substitute its judgment for that of the administrative agency, but merely reviews the record to determine whether the agency acted beyond its discretionary powers, abused its discretion, or acted arbitrarily or capriciously regarding an individual's constitutional rights.
This limited judicial review of the record applies regardless of the method used to appeal the decision to the superior court. That is, whether the appeal is by writ of certiorari, appeal under the statutory provisions, or mandamus, the court is still limited to a review of the record before the local government administrative agency.
E. Standard of Review
The superior court, in its review of the record of evidence presented to the administrative decision agency, determines whether the agency abused its discretion or whether the appellant is entitled to relief as a matter of law. Under this review, the "any evidence" rule of administrative review applies. Thus, the court, in consideration of the record of the proceedings before the administrative agency, determines whether there is any evidence which supports the decision of the administrative agency. If so, then the court's duty is to uphold the administrative decision.
V. JUDICIAL REVIEW OF LEGISLATIVE DECISIONS
The law has been well established for some time that the appropriate test for standing to challenge a rezoning decision would be the substantial-interest/aggrieved citizen test. Of course, the owner of the property satisfies this test. The litigation has arisen only when neighbors attempt to challenge the standing of others. In this, the Court is very reluctant to allow a neighbor to interfere with the right of use of property granted by the local government at the owner's request, and so the standing test is difficult.
In order to challenge on the merits a decision of a governing authority to rezone, plaintiffs must show special damages under the substantial interest-aggrieved citizen test. The Courts have assigned two steps to standing: first, that a person claiming to be aggrieved must have a substantial interest in the zoning decision, and second, that this interest be in danger of suffering some special damage or injury not common to all property owners similarly situated. By "similarly situated," the Courts refer to persons in the general community who may merely suffer inconvenience and exclude those persons who stand to suffer damage or injury to their property which derogates from their reasonable use and enjoyment of it. As a concrete example, in one case, the court found evidence given by an expert real estate appraiser indicating that an adjoining landowner would suffer a 15 percent to 20 percent decrease in the value of his property sufficient evidence upon which a trial court might find substantial damage to a substantial interest.
B. Nature of Appeal
Like the appeal of administrative decisions, legislative decisions are subject to a limited judicial review. But the court in its review is not limited only to a review of the evidence presented to the local government. The superior court conducts a de novo review of the challenges to the zoning decision. Therefore, the court is not limited by the facts or evidence presented to the local governing body, nor is it limited by the lower court's determination of the applicable law. It is a fresh appeal, and new evidence, including expert testimony, may be offered to the court. The court is free to make an independent determination of whether the procedural or substantive challenges may be sustained based on the evidence presented to the court and based on the applicable law.
The constitutional challenges to a legislative zoning decision are generally of two types. One is facial, meaning that a challenge is made to the ordinance as adopted without regard to how the ordinance is applied. The other type is commonly called an "as applied" challenge, which usually asserts that a zoning ordinance as applied to specific property is unconstitutional. This more commonly occurs in challenges to the rezoning of property or grant of a special use permit.
Whether the appeal is a facial challenge or an "as applied" challenge, the superior court is authorized to receive evidence de novo and make a decision as to whether the legislative decision will survive constitutional attack.
C. Nature of Remedy
In an "as applied" constitutional challenge, an appeal to the superior court is initiated by filing a complaint challenging the decision by the local government. Although it is in the nature of an appeal, it is treated as a complaint in equity. Of course, if damages apply, then legal remedies as well as equitable may be availed to the complaining party.
The trial court is not limited to the record of the evidence presented to the administrative agency, but may take a fresh look at new evidence presented by the parties.
When appeals involve zoning decisions, the separation of powers doctrine prohibits the court from rezoning property. The court's remedy to a complaining party, other than damages, is limited to declaring a zoning decision unconstitutional. After that, utilizing its injunctive powers, the court remands the case to the local government with direction to rezone the property to a constitutional zoning classification. In this way, the legislative discretion of the local government is not judicially usurped, although the local government must rezone the property to a classification different from that found unconstitutional by the court.
D. Burden of Proof in Rezoning Decisions
Since a zoning decision is a legislative decision, it enjoys the presumption of validity as is true of all legislative decisions.
The burden of proof of the landowner who challenges the denial of a rezoning petition is different from that of a neighboring property owner who challenges the grant of a rezoning petition. In the former, the property owner must show by clear and convincing evidence that he has suffered substantial detriment without a countervailing benefit to the public health, safety, morality, and welfare. It is only upon this showing that the local government must then come forward with evidence to rebut the evidence adduced on behalf of the property owner.
Where a neighboring property owner challenges a rezoning of property, he is required to show fraud, corruption, or a manifest abuse of discretion to the detriment of the neighboring property owners. This too is a very heavy burden; one that certainly favors the property owner.
VI. SPECIAL USE PERMITS: A SPECIAL CASE
While the grant or denial of a permit such as special use permit had long been considered an administrative zoning decision, the Zoning Procedures Law was amended in 1998 to list them amongst the matters referred to as "legislative" zoning decisions, such that require compliance with the ZPL for notice and a hearing. Yet, rather than converting special use permit decisions to legislative decisions, with de novo review at the superior court, or rather than continuing to treat them as quasi-judicial decisions, the Supreme Court has adopted a sort of hybrid analysis. Special use permits are called legislative decisions and the legislative discretion of the Board is honored, but the review is on the record and they are upheld if there is "any evidence" to support the decision. See, e.g., Gwinnett County v. Ehler Enterprises, 270 Ga. 570(1), 512 S.E.2d 239 (1999);City of Alpharetta v. Estate of C.R. Sims, 272 Ga. 680, 682, 533 S.E.2d 692 (2000); Fulton County v. Congregation of Anshei Chesed, 275 Ga. 856, 859(2), 572 S.E.2d 530 (2002); Jackson County v. Earth Resources, 280 Ga. 389, 390, 627 S.E.2d 569 (2006); City of Roswell v. Fellowship Christian School, 281 Ga. 767, 642 S.E.2d 824 (2007).
The "any evidence" standard being easy to satisfy (since it basically equates to abuse of discretion), and there not being an opportunity to present new evidence, expert testimony and so forth, the grant or denial of a special use permit becomes almost impossible to overturn, unless the Board's action is simply arbitrary. In the City of Roswell case, supra, the only evidence against the requested school football stadium appeared to be neighbor comments that there were two other stadiums in the vicinity and that traffic would be negatively impacted. The Court held, "Neither the superior court nor this Court has any discretion to exercise in connection with FCS's application for a Permit. Whether to approve or to deny that application was addressed solely to the exercise of Appellants' sound discretion in accordance with the factors enumerated in the ordinance. There was evidence to support the decision to deny the Permit based upon the negative impact the stadium would have on traffic in the area." 281 Ga. at 769. Special use permits have become the best (or worst) of both worlds: the boards are considered to have discretion to apply the criteria in the ordinance governing the issuance of the permit, and the decision can be supported by any evidence.
VII. SUMMARY AND CONCLUSION
Local government zoning decisions are generally of two types: administrative and legislative. Requests for variances, subdivision plat approval, and review of zoning decisions by zoning officials are examples of administrative zoning decisions. Due process safeguards are required in administrative decision making, including the right to notice, to present evidence, to cross-examine witnesses, to develop a record of the proceedings, and to a written decision based on the record. It is a decision that is judicial in nature, as the decision maker determines the facts and applies the facts to the legal standards in the zoning ordinance.
Legislative decisions, on the other hand, are those which result in the adoption of a zoning ordinance, an amendment to the zoning ordinance, the rezoning of property, and the approval of a special use permit. These decisions must be made by the local governing authority. As legislative decisions, they are policy-making decisions with usually far-reaching application. Due process, trial-type hearings are not required, but the local government is required to conduct a hearing in which applicants and opponents may present their case to the decision maker. Legislative decisions are limited by the Constitution, and thus the typical issue on appeal of a legislative decision is whether it violates any of the protections afforded under either the Georgia or Federal Constitutions.
Chapter 4, EX PARTE CONTACTS
AND OTHER ETHICAL CONSIDERATIONS
This chapter discusses not only the ethical issues involved in rezoning, but also the ethical issues involved in making quasi-judicial land use decisions, such as variances. As rezoning is legislative, it presents one set of ethical problems. A different standard applies to quasi-judicial decisions. This is relevant because appeal of zoning decisions are de novo, while appeal of quasi-judicial decisions are on-the-record. The permissible behavior and actions available to the applicant in each has not been well defined in Georgia, but is evolving in other jurisdictions, and is becoming quite distinct for each type of decision. This paper explores some of the current boundaries and guidelines of acceptable behavior and considers some of the issues being raised elsewhere and in the superior courts of this state.
II. ETHICAL CONSIDERATIONS REGARDING REZONINGS
The first and main area of conflicts of interest in zoning are rezonings. A rezoning is a legislative decision by the local governing body, whether county commission or city council. Ethics in rezonings are statutorily codified in the Conflict of Interest in Zoning Act, discussed below.
A. Conflict of Interest in Zoning Act
In 1986, the General Assembly enacted the Conflict of Interest in Zoning Act, O.C.G.A. § 36-67A-1 et seq. (the "Act") This was perhaps a reaction to several recent zoning cases that had addressed the issue of a conflict of interest in a zoning context. Olley Valley Estates v. Fussell, 232 Ga. 779, 208 S.E.2d 801 (1974), the Court crafted a rule and held that a zoning commissioner should be disqualified if he holds a direct or indirect financial interest in the outcome of the zoning vote, which is not shared by the public in general and which is more than remote or speculative. Dunaway v. City of Marietta, 251 Ga. 727, 308 S.E.2d 823 (1983) concerned a planning commission chairman was also the vice president of the applicant. The court found that a question of fact as to a taint on the rezoning was created where the chairman presided without voting over the initial hearing and did not preside or vote at the second hearing. Finally, in Wyman v. Popham, 252 Ga. 247, 312 S.E.2d 795 (1984), the trial court held that where two voting commissioners sold products or services to the applicant, the vote was tainted by fraud and corruption. These cases show a sort of evolution of a doctrine of fraud and corruption in zoning that was judicially created. In 1986, the General Assembly stepped in to create its own rules.
The Act applies, by its own terms, only to "rezoning actions" which means "action by local government adopting an amendment to a zoning classification which has the effect of rezoning real property from one zoning classification to another." O.C.G.A. § 36-67A-1(9). By its own terms, it would not cover things like special exceptions or variances, or even amendments that do not rezone the property (such as an alteration of conditions).
The Act essentially codified the basic rule of Olley Valley Estates. The statute states that:
A local government official who knew or reasonably should have known he or she:
(1) Has a property interest in any real property affected by a rezoning action which that official's local government will have the duty to consider;
(2) Has a financial interest in any business entity which has a property interest in any real property affected by a rezoning action which that official's local government will have the duty to consider; or
(3) Has a member of the family having any interest described in paragraph (1) or (2) of this Code section shall immediately disclose the nature and extent of such interest, in writing, to the governing authority of the local government in which the local government official is a member. The local government official who has an interest as defined in paragraph (1) or (2) of this Code section shall disqualify himself from voting on the rezoning action.
O.C.G.A. § 36-67A-2.
A local official with a property interest directly in the property, or a financial interest in the company owning the property, should recuse himself. A "property interest" means any amount of direct ownership. O.C.G.A. § 36-67A-1(7). A "financial interest" means direct ownership of at least 10 percent of the stock or assets of a business entity. O.C.G.A. § 36-67A-1(3). Therefore, a commissioner owning one percent of a property directly would be disqualified, but a commissioner owning 9% of an applicant corporation would not be disqualified. It should also be noted that "local government official" includes "any member of a planning or zoning commission" in addition to the traditional members of the governing authority.
The Act further states, "The disqualified local government official shall not take any other action on behalf of himself or any other person to influence action on the application for rezoning." O.C.G.A. § 36-67A-2. Prior to Little v. City of Lawrenceville, 272 Ga. 340, 528 S.E.2d 515 (2000), this prohibition appeared quite broad. Little, however, held that a city council member could take the steps that are normally and properly undertaken by any citizen to advance his rezoning once he recused himself. The actions referenced in the case include, "taking any action in support of his rezoning application, including supplementation thereof, responding to inquiries from zoning authorities, or altering the property at issue or the business conducted thereon." 272 Ga. at 342.
The case limited the reach of the Act to actions taken in the official's public capacity. Lobbying other council members is not specifically discussed, but it would seemingly be a normal action undertaken by any citizen, and therefore not prohibited; and yet it appear to be just the sort of action that the Conflict of Interest in Zoning Act sought to prevent. However, as the law stands, local government officials can do anything that a citizen can do.
The Act also requires disclosure of all applicants and attorneys representing the applicant of any campaign contributions of more than $250.00, within ten days after
filing the rezoning application. Disclosure is also required of any opponent of a rezoning, at least five days prior to the first hearing on the rezoning.
B. Fraud/Abuse of the Zoning Power
Another ethical dimension to rezoning is the challenge that can be brought by neighbors. If a property owner is unhappy with a rezoning, he challenges the constitutionality of the existing zoning classification. Neighbors have a tougher standard: "When neighbors of rezoned property challenge the rezoning in court on its merits, it will be set aside only if fraud or corruption is shown or the rezoning power is being manifestly abused to the oppression of the neighbors." Lindsey Creek Area Civic Association v. Columbus, 249 Ga. 488, 491, 292 S.E.2d 61 (1982). This standard has rarely been met. Wyman v. Popham, supra, is an example of where the Supreme Court found that there was evidence sufficient to authorize such a finding, and in that case, two council members had sold their products and services to the applicant's business.
The burden of proof on showing a fraud or conflict of interest has been found to be a preponderance of the evidence. In Wyman v. Popham, , the Court held: "The general rule against inquiring into the motives of the legislative body gives way as a matter of public policy where there is an allegation or appearance of corruption or fraud. Bearing in mind that fraud is often subtle and difficult of proof, and, in addition, that the integrity of the process of public deliberation is of the utmost importance to the public weal, we will not impose upon those claiming fraud or corruption in the promulgation and administration of zoning ordinances any standard other than that of the preponderance of the evidence." Hence, a fraud claim can lift the prohibition against deposing elected officials about their vote.
C. Constitutional Trust
One slight variation on the fraud and conflict of interest claim would be the violation of the constitutional trust provision of the Georgia Constitutional, Art. 1, Sec. 2, Para. I, which states, "All government, of right, originates with the people, is founded upon their will only, and is instituted solely for the good of the whole. Public officers are the trustees and servants of the people and are at all times amenable to them." The constitutional trust provision is applied when a public officer has definitely benefited financially (or definitely stood to benefit financially) as a result of simply performing their official duties. Ianicelli v. McNeely, 272 Ga. 234, 527 S.E.2d 189 (2000). This is of course very close to the traditional fraud in zoning test. Interestingly, in the recent case of Crozer v. Reichert, 275 Ga. 118, 561 S.E.2d 120 (2002) the Court stated, "In Dunaway v. City of Marietta, 251 Ga. 727, 308 S.E.2d 823 (1983), we held that the constitutional trust provision prohibits the chairman of the city planning commission from any participation in zoning applications filed by a corporation in which the chairman served as an officer." This is an interesting comment because Dunaway does not mention the constitutional trust provision nor cite to the Constitution. In any event, it is now seen as falling under the ambit of this provision, which simply provides another basis to attack a financial conflict of interest in any public officer.
Lobbying is a traditional activity in connection with rezonings and is not circumscribed by the Conflict of Interest in Zoning Act. The Act does require disclosure of campaign contributions by both proponents and opponents. However, as Little v. City of Lawrenceville, supra, shows, there is little restraint even on the lobbying activities of a recused council member.
However, lobbyists are regulated in Georgia by the State Ethics Commission, and specifically the Ethics in Government Act, Article 4 of Chapter 5 of Title 21, the Elections Code. O.C.G.A. § 21-5-70 et seq. governs public officials' conduct and lobbyist disclosure, and defines a lobbyist as "any natural person who, for compensation, either individually or as an employee of another person, undertakes to promote or oppose the passage of any ordinance or resolution by a public officer specified under subparagraph (F) or (G) of paragraph (15) of Code Section 21-5-3, or any committee of such public officers, or the approval or veto of any such ordinance or resolution." O.C.G.A. § 21-5-70(6). The referenced public officers include: "Every elected county official and every elected member of a local board of education; and (G) Every elected municipal official." O.C.G.A. § 21-5-3(15).
E. Local Ethics Codes
Another boundary for rezoning actions is the local county or city ethics code. Some counties and cities have formal ethics codes that prohibit the appearance of improper influence. One case on point is Dick v. Williams, 215 Ga.App. 629, 452 S.E.2d 172 (1994), where the Supreme Court found that the rezoning was lawful under state law, but was improper under Cobb County's ethics code. The county code required protection against the appearance of improper influence, and the fact that the son of one county commissioner worked in the firm representing the applicant was adjudged an interest. The rezoning application was remanded.
III. ETHICAL CONSIDERATIONS REGARDING QUASI-JUDICIAL DECISIONS
Quasi-judicial decisions are decisions where the governing body applies some law to a set of facts. For example, a variance or a special exception. [Arguably a special use permit is now a legislative decision, under the recent amendment to O.C.G.A. § 36-66-3, but that is a topic for another paper]. If a local government is taking an existing ordinance with criteria and applying it to the applicant's facts, that is generally a quasi-judicial decision. These types of decisions raise different ethical considerations. The Conflict of Interest in Zoning Act does not apply, by its own terms. The general notion of ethics would be bound up in the question of due process. The party is also entitled to an unbiased decision-maker.
A. Due Process in Quasi-Judicial Decisions
As a quasi-judicial action, local government officials are much more circumscribed in their action. They are not acting legislatively; they are generally applying some standard already in their ordinance, such as determining if the applicant has a hardship sufficient to qualify for a variance. Applicants are entitled to procedural due process. Jackson v. Spalding Co., 265 Ga. 792, 462 S.E.2d 361 (1995). "Procedural due process means notice and an opportunity for affected parties to be heard. The purpose of the hearing is to permit interested persons to furnish information that will assist the board in deciding whether a variance should be granted. To that end, the chairperson may conduct the hearing informally; strict adherence to the rules of evidence is not required. The goal is a fair hearing." 265 Ga. at 795.
In Jackson, the Court looked at four factors to determine the applicant had due process: 1) the board gave notice; 2) the applicants could speak and present evidence, and never sought to cross-examine the opposing witnesses; 3) the board produced at least a detailed account of the hearing; and 4) the board gave a written explanation of the reasons for its decision. Id. That was adjudged sufficient for due process.
B. Ex Parte Contacts
An issue that has been arising is ex parte contacts in quasi-judicial actions. Ex parte contacts are contacts by one party when the other party is not present to hear them. This has long occurred in the legislative context and is generally known as lobbying. See supra. However, this issue is surfacing in superior court cases in challenges to quasi-judicial actions. As is often the case, the applicant will submit an application and then perhaps sound out the commissioners, and make representations and promises to get their application approved. The reasonable concern of the opponents is that they do not know what was said and what was promised at such meetings. A quasi-judicial is supposed to be on the record, yet such discussions are not.
While no case in Georgia has given this concept teeth, cases in other jurisdictions have. For example, the Idaho Supreme Court has held that "when a governing body deviates from the public record, it essentially conducts a second fact-gathering session without proper notice, a clear violation of due process." Idaho Historic Preservation Council v. Boise, 134 Idaho 651, 8 P.3d 646 (2000). The Idaho Supreme Court pointed to the lack of fairness and the inability for rebuttal to evidence taken outside the public hearing. The same allegations could be made in Georgia under Jackson v. Spalding Co., supra. The Court in that case discussed the importance of cross-examination, and of a transcript or detailed record to provide an adequate basis for judicial review. Evidence taken outside the hearing may not satisfy those requirements. In the Idaho case, the evidence was phone calls, which the commissioner disclosed at the hearing and stated what was said and that he was not affected. The dissent thought that was enough to vitiate any due process concerns, but the majority did not.
More recently, the Idaho courts found that the fact that a commissioner disclosed that the talked to an applicant and drove by the site prior to the variance hearing raised an issue of bias. The courts were concerned that he possessed information that the other commissioners did not share in, and that his decision was influenced by that fact. "A quasi-judicial officer must confine his or her decision to the record produced at the public hearing. Any ex parte communication must be disclosed at the public hearing, including a general description of the communication
. The purpose of the disclosure requirement is to afford opposing parties with an opportunity to rebut the substance of any ex parte communications." Eacret v. Bonner County, 139 Idaho 780, 786, 86 P.3d 494 (2004). The court concluded that the ex parte contacts violated the due process rights of the applicant.
Similarly, Kansas' Supreme Court has expressed concerns regarding ex parte communications in quasi-judicial decisions. "However, when ex parte contacts are present in the context of quasi-judicial zoning decisions, such as variances and special use permits, courts will be more receptive to challenges to decisions on grounds of zoning bias. Still courts may simply try to avoid the issue altogether by concluding that the ex parte communications were eventually made part of the record decision, so that there was no denial of the due process right to a fair and impartial hearing." McPherson Landfill, Inc. v. Board of County Com'rs of Shawnee County, 274 Kan. 303, 49 P.3d 522 (2002).
Finally, Florida has a long-standing prohibition, in strong terms, to ex parte communications in quasi-judicial matters, based on due process considerations: "Ex parte communications are inherently improper and are anathema to quasi-judicial proceedings. Quasi-judicial officers should avoid all such contacts where they are identifiable. However, we recognize the reality that commissioners are elected officials in which capacity they may unavoidably be the recipients of unsolicited ex parte communications regarding quasi-judicial matters they are to decide. The occurrence of such a communication proceeding does not mandate automatic reversal. Nevertheless, we hold that the allegation of prejudice resulting from ex parte contacts with the decision makers in a quasi-judicial proceeding states a cause of action. Upon the aggrieved party's proof that an ex parte contact occurred, its effect is presumed to be prejudicial unless the defendant proves the contrary by competent evidence." Jennings v. Dade County, 589 So.2d 1337, 16 Fla. L. Weekly D2059, 17 Fla. L. Weekly D26, Fla.App. 3 Dist. (1991).
In many Georgia scenarios, the developer or applicant submits evidence to the board and meets with them privately, and then a decision is made at the hearing. These types of actions are may be open to challenge under due process grounds if the opponents are not given full opportunity to know about the evidence, cross-examine, rebut and make a record on the issues.
C. Other Issues
Fraud and abuse of the zoning power, discussed above, is also a challenge that is available to challenge quasi-judicial actions. See, Cocroft v. Peters, 241 Ga. 115, 244 S.E.2d 6 (1978). An applicant is entitled to a non-biased decision maker. A biased decision maker would be a deprivation of due process. As can be seen, these concepts bundle together.
IV. RECENT ETHICS CASES OF INTEREST
A. Crozer v. Reichert, 275 Ga. 118, 561 S.E.2d 120 (2002).
Neighboring property owners challenged an approval of a telecommunications tower on the basis that the tower was erected on land owned by the county planning director, who had submitted the plans to his staffer for review. His staffer unsurprisingly recommended approval. Plaintiff's alleged that planning director was a public officer public officer within the purview of Art. I, Sec. II, Par. I (the constitutional trust provision). The Court found that, if an individual is appointed, the determination of whether he is a public officer is to be made based on an analysis of that person's duties, powers and obligations, not the extent of his authority. The Court also noted that the constitutional trust provision is applied when "a public officer had definitely benefited financially (or definitely stood to benefit financially) as a result of simply performing their official duties." The trial court had dismissed the claims, but the Supreme Court found that there was not enough evidence in the record to support the trial court's dismissal, and reversed the dismissal.
B. White et al. v. Board of Commissioners of McDuffie County et al., 252 Ga.App. 120, 555 S.E.2d 45 (2001).
The McDuffie County Development Authority contracted to purchase a tract of land for use as an industrial park. Financing was arranged by the authority though several banks. The authority applied for a zoning change which was approved by the McDuffie County Board of Commissioners. Thereafter, residents who owned nearby property sued claiming the rezoning was procedurally defective and that conflicts of interest influenced the board's decision. The residents challenging the rezoning alleged that a member of the board was also vice president of the bank that participated in financing the purchase of the property. They also claimed that two of the county commissioners were members of the development authority which requested the rezoning.
In its decision, the court noted that when neighbors of rezoned property challenge a rezoning on its merits, they must show fraud, corruption, or manifest abuse of the zoning power to the oppression of the neighbors. Self-interested or conflicted participation by officials voting in a zoning decision will support a challenge and invalidate a zoning action. The type of conflict or self-interest that will void a zoning decision is financial, i.e., the transaction will directly and immediately affect the official's pecuniary interest. A remote or speculative financial interest will not sustain a conflict of interest allegation. In this case, the evidence did not support self-interested or conflicted participation in the zoning decision. As to the board member, there was no evidence that the rezoning of the property "directly or immediately affect[ed] his pecuniary interests." This is because the evidence showed that the board member was vice president of the bank that financed the acquisition of the property, but there was no evidence to show that he benefited financially or stood to benefit financially from performing his official duties. As to the two board members who were also on the development authority, one was not a voting member, and the other was authorized to participate under ordinances which allowed the appointment of the board member to the development authority board.
C. Little v. City of Lawrenceville, 272 Ga. 340, 528 S.E.2d 515 (2000).
The procedural requirements under the Zoning Procedures Law preempt provisions in a city charter for the purposes of the adoption and amendment of zoning ordinances. Therefore, even if the city did not follow the zoning requirements under its charter, the action was valid because it followed the requirements of the ZPL.
A member of the city council sought rezoning of his property. In so doing, he filed a written disclosure of his interest and disqualified himself from voting under the Conflict of Interest in Zoning Act, O.C.G.A. Chapt. 36-67A. The court found that the steps taken by the council member to influence his rezoning application was that normally and properly undertaken by any other private property owner. Therefore, his timely disclosure and recusal fully protected the residents of the city and did not violate the due process rights of any complaining party.
Chapter 5, Vested Rights and Non-Conforming Uses
I. Defining and distinguishing vested rights, non-conforming uses and grandfathered uses
"Vested rights" and "non-conforming uses", along with "grandfathered", are terms that are often used indiscriminately; however, they have distinctly different meanings, and can affect property owners and their rights in drastically different ways.
A vested right is a right to a future use of a property, despite a change in the regulations, that is obtained through actions of the property owner before the regulation changes. For example, if a property owner seeks a building permit for a permitted use, and the regulation is then changed such that it is no longer a permitted use, then he will have a vested right. There are several ways that vested rights can arise, and they are best laid out in the seminal case WMM Properties. Where a vested right exists, that right is generally enforceable by mandamus.
Non-conforming uses are established uses which at one time were legal, but, due to a change in the ordinance, are no longer permitted. If the ordinance expressly allows such uses to continue, then they are considered grandfathered. If the ordinance simply renders a non-conforming use illegal, then it may result in a taking; however, there appears to be support for amortization clauses, which require a non-conforming use to be removed over a time period which is sufficient to allow the property owner to achieve a reasonable return on his investment-backed expectations. Ordinances commonly contain a non-conforming use provision regulating when a non-conforming use expires either through abandonment, destruction or misuse.
II. Transferring vested rights
In 2007, the Georgia Supreme Court issued a decision which was intended to clear up confusion between vested rights and non-conforming uses, BBC Land & Development, Inc. v. Butts County; however, as is often the case, this decision created as thorny an issue as the one it tried to resolve. Specifically, the Court determined that once vested rights were acquired, they could not be divested without consent. However, the Court also stated that the act of conveying a property was itself an act of consent. This seems to create a trap for many developers and builders.
Commonly, a developer will begin the development process and carry it through the final plat stage. At that point, the developer will sell individual lots in the development to builders or the final property owner. Traditionally, it was assumed that if the plat was approved, the builder could build under the regulations applicable at the time that the plat application was filed, even if there were intervening changes in the ordinance, such as changes in the minimum lot size or setbacks. The BBC Land Development, Inc. v. Butts County case indicates that that is still true for the developer, but not necessarily for the builder or the final property owner.
The legislature responded to this decision quickly, an in the 2008 session amended O.C.G.A. § 44-5-40 to read as follows:
Vested interests in property stemming from the approval of land disturbance, building, construction or other development plans, permits or entitlements in accordance with a schedule or time frame approved or adopted by the local government shall be descendible, devisable and alienable in the same manner as estates in possession.
Of course, every answer raises new questions. Now that the question of whether a developer can transfer vested rights has been answered, the likely next issue will be whether in a particular case the developer did transfer vested development rights.
III. Other important cases
A. Café Risqué/We Bare All Exit 10, Inc. v. Camden County, 273 Ga. 451, 542 S.E.2d 108 (2001).
Where a local government issues a permit which is in violation of an existing ordinance, even if issued under a mistake of fact, the permit is void and the holder does not acquire any vested rights. This is true even if substantial expenditures were made in reliance on the void permit. A local government is not prohibited from revoking an improperly issued permit.
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 or 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 in 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 invalided because the location of the sign violated the sign ordinance.
H. Flippen Alliance for Community Empowerment, Inc. v. Brannan, 267 Ga.App. 134, 601 S.E.2d 106 (2004).
"To be vested, in its accurate legal sense, a right must be complete and consummated[.]" "[P]rior nonconforming uses are not absolutely protected from subsequent zoning regulations." A governing authority can require a nonconforming use to be terminated in a reasonable time. Georgia law permits municipalities to terminate, over time, pre-existing nonconforming uses. "A property owner cannot move a 'grandfathered' use from one location to another." Moreover, courts have consistently held that ordinances prohibiting the expansion of a nonconforming use to new lands are enforceable. "[I]t is incumbent upon one seeking to use the property for a non- conforming use after the rezoning ordinance to show that his prior use of the property was legal and not unlawful."
I. 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 nonconforming use 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.
J. 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"
K. 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.
CHAPTER 6, Annexation Law in Georgia
I. ANNEXATION AND ZONING
Annexation is governed by O.C.G.A. Title 36, Chapter 36 (§ 36-36-1 et seq.). There are several general provisions that apply to all annexations, which will be discussed below. Of paramount consideration to Cities is the timing of annexation and rezoning of property.
There are several distinct methods of annexation: the 100 percent method, the 60 percent method, and annexation by resolution and referendum. Property can also be annexed by Local Act of the General Assembly, as each municipality is nothing but a "creation of the General Assembly," whose boundaries can be modified by the General Assembly. Each method of annexation will be outlined in turn, and deannexation procedures will be briefly discussed.
II. GENERAL PROVISIONS APPLICABLE TO ALL ANNEXATIONS
A. Notice to County
When an application for annexation is received, the municipality must within five business days give written notice of the proposed annexation to the governing authority of the county wherein the property is located. The notice must include a map or other description sufficient to identify the area. O.C.G.A. § 36-36-111 now requires forwarding a copy of the petition to the County, including indicating the proposed zoning and land use for the area. All notices, whether to or from the city or county, must be sent certified mail, or statutory overnight delivery (i.e. FedEx), return receipt requested. See O.C.G.A. §§ 36-36-6 and 36-36-9.
B. Response to Notice
The county must respond, via certified mail, return receipt requested, within five business days of receipt, and inform if any county-owned facilities are located in the proposed area to be annexed. O.C.G.A. §§ 36-36-7 and 36-36-9. The county has thirty days from receipt of the notice to object to the annexation. If no objection is received within 30 days of the county's receipt of notice, final action on the annexation can proceed. If objection is lodged, then the procedures discussed in Section V of this paper are triggered.
C. Ownership of County Facilities in Annexed Areas
In general, ownership of county properties and facilities is not affected by annexation of the area they are in. O.C.G.A. § 36-36-7(b). If a municipality annexes on both sides of a county road right-of-way, the municipality shall assume the ownership, control, care and maintenance of that property unless the county and municipality agree otherwise by joint resolution. O.C.G.A. § 36-36-7(c).
Unusable Property. If a county-owned property or county-owned facility is no longer useable for service to the unincorporated area of the county after annexation, the municipality is required to acquire such property provided the annexation is final, the property or facility is solely funded by, and solely provides service to, unincorporated areas, and the county adopts a resolution declaring the property unusable only as a result of the annexation. The county receives fair market value – as determined by agreement or by special master appointed by superior court if the parties do not agree within 180 days. O.C.G.A. § 36-36-7(d).
D. Unincorporated Islands
Annexations or deannexations which would create unincorporated islands are prohibited. An unincorporated island consists of an unincorporated area whose boundaries are entirely bounded by one or several cities, or an unincorporated area which the county has no reasonable means of "physical access" to for provisions of services. O.C.G.A. § 36-36-4. Annexations that create unincorporated islands are void, subject to challenge at any later date. As for preexisting unincorporated islands, counties can request by resolution that cities provide services to such areas. Cities can also annex them without owner consent.
E. Annexation across County Boundary Lines
Annexation across county boundary lines, when the municipality does not already have property in the new county, can only be performed subject to special procedures contained in O.C.G.A. § 36-36-23. Within ten business days of receiving an application for annexation, the municipal corporation shall provide written notice to the county governing authority of the adjoining county of its intent to annex into the county. A meeting between the county governing authority and municipal governing authority shall be held to discuss the proposed annexation if the county governing authority files a written request for such meeting with the municipal governing authority within 15 days of receipt of the notice of the proposed annexation. The requested meeting shall be held within 15 days of the request by the county unless otherwise agreed to by the county and the municipality.
No municipality may annex into an adjoining county in which the municipality is not already located unless otherwise agreed to by the county governing authority of the adjoining county. Such annexation shall be deemed approved, unless the county governing authority adopts a resolution opposing the annexation within 30 days following the earlier of:
1. The completion of the meeting between the municipal and county governing authorities, if any, pursuant to subsection (a) of this Code section; or
2. Thirty days after notice of the proposed annexation from the municipal corporation to the county governing authority, if no meeting is requested by the county governing authority.
In making its decision, the county governing authority shall consider the following factors:
1. Whether the annexation ordinance is reasonable for the long-range economic and overall well-being of the counties, school districts, and municipalities affected by the annexation;
2. Whether the health, safety, and welfare of property owners and citizens of the county, municipalities, and area proposed to be annexed will be negatively affected by the annexation;
3. Whether the proposed annexation has any negative fiscal impact on the county, school districts, and other municipalities that have not been mitigated by an agreement; and
4. The interests of the property owner seeking annexation.
If the county governing authority disapproves the annexation, the municipal corporation may challenge the disapproval by filing a complaint in the superior court of the adjoining county into which such annexation has been proposed. The challenge shall be heard by either a judge or senior judge who is not from the circuit in which either the county or the municipality is located. If the court finds by a preponderance of the evidence that the determination by the county based upon the factors enumerated in above is correct, then the denial by the county shall be sustained. If the denial is not sustained, the annexation may proceed.
F. Post-Annexation Notice
Once the property is annexed, identification of property shall be filed with the Department of Community Affairs and the governing authority of the county in which the property is located. These reports should be filed no later than 30 days following the last day of the yearly quarter in which the annexation became effective. O.C.G.A. § 36-36-3. Failure to comply with this requirement does not invalidate an annexation. The report must contain:
1. The legal authority under which the annexation was accomplished, which shall be the ordinance or resolution number for any annexation effected pursuant to Article 2, 3, 4, or 6 of this chapter or the Act number if effected by local Act of the General Assembly;
2. The name of the county in which the property being annexed is located; the enactment date and effective date of the annexation ordinance, resolution, or local Act of the General Assembly; and
3. A letter from the governing authority of any municipality annexing property stating their intent to add the annexed area to maps provided by the United States Bureau of the Census during their next regularly scheduled boundary and annexation survey of the municipality and stating that the survey and map will be completed as instructed and returned to the United States Bureau of the Census.
4. The submission of the report shall be made in writing and may also be made in electronic format, at the discretion of the submitting municipality.
G. Effective Date of Annexation
For ad valorem tax purposes, annexations become effective on December 31 of the year in which the annexation occurred. For all other purposes, they become effective either on the first day of the next month after annexation, or, in the case of annexations by local Act, on the date the local Act becomes effective or on such date as is specified in the Act. See O.C.G.A. §§ 36-36-2.
H. Voting Rights Act
The requirements of the Voting Rights Act, 47 U.S.C. § 1971 et seq., and particularly Section 5 of the Act, apply to all annexations. O.C.G.A. § 36-36-3. The basis of this requirement is the effect annexation has on voting. Even the annexation of vacant land which is anticipated to become residential has been held to require preclearance, as it constituted a "change in voting practice or procedure." City of Pleasant Grove v. U.S., 479 U.S. 462, 107 S.Ct. 794, 93 L.Ed.2d 866 (1987). Therefore, after the annexation is effective, a "Section 5 preclearance letter" is submitted to the Department of Justice, at least sixty days before any election. City of Arcade v. Emmons, 268 Ga. 230, 486 S.E.2d 359 (1997). Procedures for preclearance can be found at 28 C.F.R. part 51. The City Attorney should be involved in this submission, as it is highly technical. Useful information can be found at the Department of Justice website, http://www.usdoj.gov/crt/voting/sec_5/about.php. A copy of the preclearance letter should be submitted to the Dept. of Community Affairs. Additionally, O.C.G.A.
§ 36-60-11 requires all actions submitted for preclearance by a local government be submitted to the Attorney General.
III. ZONING IN RELATION TO ANNEXATION
A. Effect of Annexation on Zoning
Once an annexation is effective, the property transfers from the jurisdiction of the county, losing whatever zoning the county provided. The Zoning Procedures Law provides a specific method so that the property can be zoned as part of the annexation process.
Rezoning can be initiated at any time after notice of the proposed annexation is provided to the county under O.C.G.A. § 36-36-6. The required public hearing must be held prior to the annexation. A newspaper advertisement must be published (15 to 45 days before the hearing) and a sign erected on the property at least 15 days before the hearing. Both notices must contain time, place, purpose of the hearing as well as location, existing zoning, proposed zoning and proposed annexation information. The purpose of the requirement is to provide notice of the proposed annexation and rezoning, consistent with ZPL requirements.
The final vote on the rezoning cannot be held prior to adoption of the annexation ordinance or resolution or the effective date of the local Act annexation. The proper order of events is thus rezoning public hearing, then vote on annexation (or effective date if via Local Act), then vote on rezoning (only necessary if annexation approved). These would typically all be scheduled for the same meeting.
Once the zoning procedures are followed and the municipality approves the zoning, it becomes effective on the date the annexation becomes effective, or on the date actually approved, whichever is later. See O.C.G.A. § 36-66-4(d).
IV. RESOLUTION OF ANNEXATION DISPUTES
On September 1, 2007, new practices and procedures for resolving annexation disputes between cities and counties became applicable in this State. The following procedures apply to all annexations done after September 1, 2007 in the State of Georgia, with the exception of those accomplished through local Acts of the General Assembly. O.C.G.A. § 36-36-110.
When a petition for annexation is received, the city must notify the governing authority of the county by certified mail or statutory overnight delivery of the petition. The notice must include a copy of the annexation petition showing the proposed zoning and land use for the area. O.C.G.A. § 36-36-111. See also the general annexation notice provisions of O.C.G.A. § 36-36-6.
After being given notice, the county has thirty days to respond. O.C.G.A. § 36-36-113. No final action can be taken by the city except as permitted in this Article. O.C.G.A. § 36-36-111. If the county raises no objection to the annexation, the annexation procedure may then move forward. O.C.G.A. § 36-36-112.
- One Year Rezoning Hold
As a condition of the annexation, for a period of one year, the city must not change the zoning or land use plan for the annexed property to a more intense density or use than that stated in the notice given to the governing authority of the county. This does not apply, however, if the city makes the change in the delivery agreement or comprehensive plan, and the change is adopted by the city, county, and all required parties. O.C.G.A. §§ 36-36-112 and 36-36-117.
After being given notice, the governing authority of the county can object to the annexation. This requires a majority vote by the governing authority. There must be a material increase in burden upon the county related to one or more of the following: change in the zoning or land use; increase in density; and/or increase in demands on infrastructure because of the change in zoning or land use. For the county's objection to be valid, the change in zoning or land use must result in: a substantial change in the intensity of the use; a change to a significantly different use; a significant increase in the net cost of infrastructure; or a significant diminishment of the value or useful life of a capital outlay project provided by the county to the area proposed to be annexed.
In addition to meeting one of these conditions, the change in zoning or land use must also differ substantially from the uses suggested by the county's comprehensive land use plan; or permitted by the county's zoning and land use ordinances. Delivery of services is generally not a valid objection, but it can be used to support an otherwise valid objection.
The objection by the county governing authority must be specific. If the objection is based on financial impact, it must show evidence of the alleged impact. It must be delivered to the city no more than 30 days after the original notice was received by the county from the annexing municipality. See O.C.G.A. § 36-36-113.
If an objection is made by the county, the city and county must submit the dispute to binding arbitration. The arbitrators are picked by the city and the county from pools of city officials, county officials and academics maintained by the DCA. The arbitration panel may establish zoning, land use or density conditions to the area proposed to be annexed. A decision by a majority of the panel is binding on all parties involved, and will be recorded on the deed records of the County.
The County pays at least 75% of the cost of the arbitration, with the remaining 25% divided between the county and city in a manner in which the panel deems appropriate. Costs include per diems for the panel. However, in the event the panel finds that a frivolous position has been advanced, the advancing party must bear the entire cost of the arbitration. O.C.G.A. § 36-36-115(a)(4). It is uncertain whether this would include attorney's fees.
F. Appeal of the Panel's Decision
The city, county, or annexation applicant can appeal the decision of the panel to the superior court of the county where the subject property is located within 10 days from the receipt of the panel's findings. The appeal must be based on very narrow grounds: errors of fact or law, bias or misconduct of an arbitrator, or the panel's abuse of discretion. A superior court judge who is not a judge in the circuit in which the county is located is supposed to issue a decision within 20 days from the filing of the appeal. See O.C.G.A. § 36-36-116.
V. ANNEXATION BY THE 100 PERCENT METHOD
The 100 percent method is the simplest and most common annexation method, requiring application by 100 percent of the owners of property.
Cities can annex unincorporated areas contiguous to the existing corporate limits – "contiguous" means at least 1/8th of the external boundary or 50 feet (whichever is less) abuts the municipal limits, or is separated by city land, or land owned by some other political subdivision, or the lands owned by the state or by the width of a street, river, or railroad/PSC regulated utility right-of-way. O.C.G.A. § 36-36-20.
When a municipal corporation wishes to annex a body of parcels at one time, all of the parcels proposed to be annexed are treated as one body, regardless of the number of owners, and all parcels are considered to be contiguous to the limits of the municipal corporation if any one part of the entire body abuts the municipal limits. O.C.G.A. § 36-36-21.
B. Special Contiguity Provision
If the property to be annexed is owned by the municipal corporation, and the county approves the annexation by resolution, property can be contiguous if separated by city land, state land, or the width or length of a street, river or railroad right-of-way. This in effect authorizes "spoke" annexation down roads, if the county consents.
C. Simple Requirements
The 100 percent method has been called by the courts a free election by the property owner and city, meaning it is a decision left totally to the discretion of the owner and city counsel. 100 percent annexation only requires a written application signed by 100 percent of owners (or legal representative thereof) of all the land, except the owners of any public road or right-of-way with a complete description of lands to be annexed. If it so chooses, the city council simply adopts ordinance annexing land. See O.C.G.A. § 36-36-21.
VI. ANNEXATION BY THE 60 PERCENT METHOD
The sixty percent method of annexation is much more technical than the 100 percent method. It requires the agreement of the owners of at least 60 percent of the acreage, and at least 60 percent of the registered voters living in the area.
Under this method, municipal corporations of at least 200 persons can annex a contiguous area. Here, "contiguous" means at least one-eighth of the property's aggregate external boundary must abut the municipal boundary (or would abut if not separated by width of streets, rivers, public rights-of-way, county land, city land or state land). O.C.G.A. § 36-36-31. As with the 100 percent method, all of the parcels proposed to be annexed are treated as one body, regardless of the number of owners, and all parcels are considered to be contiguous to the limits of the municipal corporation if any one part of the entire body abuts the municipal limits. O.C.G.A. § 36-36-32.
The 60 percent method requires a written application signed by at least 60 percent of the electors (registered voters) resident in the area and at least 60 percent of the record title holders of the fee simple title (or legal representatives thereof) of the land area, by acreage. Name, address and date of signature must also be printed on application, along with whether the applicant is a landowner, elector, or both. All signatures must be collected within one year from the date the first signature is collected. Failure by the municipality to collect the required signatures within the one-year period will invalidate previously collected signatures. See O.C.G.A. § 36-36-32. The application must contain a complete description of lands proposed to annex. The property cannot cross county lines by this method. O.C.G.A. § 36-36-33.
While the 100 percent method is a free election on the part of the city, the 60 percent method imposes a duty on the City to investigate and evaluate the annexation. In order to determine electors in the area, the municipal governing body must obtain a list of electors from the board of registrars of the county. If the application does not comply with the requirements, the applicant is notified of the deficiency. If the requirements are satisfied, the municipal corporation prepares a report, setting forth:
1. Municipal plans for extending police, fire, garbage and street maintenance to the area, as well as the extension of water and sewer service.
2. A map showing present and proposed boundaries of the city, the major water mains, sewer interceptors and outfalls, and proposed extensions of such.
3. The plans for the extension of water mains and sewer outfall lines must provide for the extension of these services within 12 months from the effective date of the annexation.
4. This report must be prepared and available to the public at least fourteen days prior to the public hearing. See O.C.G.A. § 36-36-35.
D. Public Hearing
The City must hold a public hearing within 15 to 45 days after petition determined valid. Notice of time and place must be given in writing to the persons presenting the petition, and it must be advertised once a week for two consecutive weeks in a newspaper of general circulation in the municipality and in the area proposed for annexation. All persons resident or owning property in the municipal corporation or the area to be annexed may be heard. See O.C.G.A. § 36-36-36. Any property owner or elector may withdraw his consent in writing postmarked or received within three days after the public hearing. The compliance must then be recalculated. O.C.G.A. § 36-36-36.
If after the hearing, the municipal corporation wants to go forward with the annexation, it may do so by ordinance, within 60 days of the validation of all signatures. O.C.G.A. § 36-36-37.
Within thirty days, any elector or property owner of the annexed area or the municipal corporation may file a petition for declaratory judgment in the county superior court, to determine the validity of the annexation as related to this chapter of the Georgia Code. Whenever such a petition is filed, the municipality should file the record of the official actions in regards to the disputed application, along with a certified copy of the annexing ordinance. The court can declare the annexation void if they find a lack of substantial compliance with the annexation provision contained in this chapter of the Georgia Code. If the court finds a procedural defect or defects in the plans for extending services to the annexed area, the court will issue a judgment to cure the defect and uphold the ordinance, if possible. See O.C.G.A. § 36-36-39.
VII. ANNEXATION BY THE RESOLUTION AND REFERENDUM METHOD
Municipal corporations have the authority to extend their boundaries by resolution and referendum. O.C.G.A. §§ 36-36-50 et seq. This is mainly intended to be a method to annex developed subdivisions, as an alternative to the 100 percent method, which would hold the subdivision hostage to one property owner, or the 60 percent method, which would be harder to achieve than a majority vote.
A. Standards for Area to be Annexed
The area to be annexed must be adjacent or contiguous with at least one-eighth of the aggregate external boundaries coinciding with the then existing municipal boundaries. O.C.G.A. §§ 36-36-52 and 36-36-54. No part may be within the boundary of another municipal corporation or county. O.C.G.A. § 36-36-54. No part may be receiving municipal services from any other government entity than the city proposing annexation; this can be waived by agreement. O.C.G.A. § 36-36-54.
The annexation must be developed for urban purposes – two people per acre, and at least 60 percent divided into lots and tracks of five acres or less, and 60 percent of lots are less than one acre. O.C.G.A. §§ 36-36-54(c). For examples of methods to determine population and the degree of land subdivision, see O.C.G.A. § 36-36-55. The code provides an exemption if the non-urban area separates the existing municipal boundaries from an area meeting the definition of an urban area in such a way that the urban area is either not adjacent to the municipal boundary or cannot be served by the annexing municipality without extending services and water and sewer lines through the non-urban area. Furthermore, the non-urban area has to be at least 60 percent bounded by a combination of the city boundary and the boundary of the area meeting the definition of urban area. O.C.G.A. § 36-36-54(d).
Natural topographical boundaries, such as creeks, streams and ridge lines, should be used where practical. In the event a street is used as a boundary, where practical, the city shall include land on both sides of the street. O.C.G.A. § 36-36-54(e).
The municipal corporation must prepare a report addressing a number of issues. It must include municipal plans for extending police, fire, garbage and street maintenance to the area, as well as the extension of water and sewer service, and showing the general land use plan of the area – including timetables. A map showing present and proposed boundaries of the city, the major water mains, sewer interceptors and outfalls, and proposed extensions of such should be included. The report must be available at least 14 days prior to public hearing and made available to the public in the city clerk's office. It may prepare a summary for public distribution. It must include a statement that the standards discussed in the prior paragraph have been met. It should describe the plans for financing the expansions of services. In terms of the timetable for the construction of water mains and sewer outfall lines to the annexed area, such construction shall begin no later than 18 months following the effective date of the annexation. See O.C.G.A. § 36-36-56.
The municipality must then pass a resolution stating the intent to annex. The resolution should describing the boundaries and set a date for a public hearing between 30 and 60 days after the passage of the resolution. The passage of the resolution triggers notice requirement to the county. See O.C.G.A. § 36-36-57.
Notice of the public hearing must show the date, time and place of the hearing; describe clearly the boundaries of the area under consideration; and state that the report is available in the city clerk's office at least 14 days prior to the hearing. The notice must be advertised once a week for three successive weeks in a newspaper of general circulation within the municipality (last ad at least one week before hearing), or if there is no such paper, posted in at least three public places of area to be annexed and in three public places within the municipality for 30 days prior to the hearing. See O.C.G.A. § 36-36-57.
E. Public Hearing
At the public hearing, a city official presents and explains the report on the annexation. All persons resident or owning property in the territory described in the notice of the hearing and all residents of the municipality shall be given an opportunity to be heard. See O.C.G.A. § 36-36-57.
A referendum to ratify or reject annexation is then held between 30 and 60 days after the public hearing as a special election. Only persons registered to vote for members of the General Assembly, residing, on the date of the adoption of the resolution, in the proposed area to be annexed may vote on the referendum. If majority vote is not to annex, no attempt at annexation under of any portion of the property by this method can be tried again for two years. See O.C.G.A. § 36-36-58.
Appeal to the superior court is available, but in determining whether the criteria of A. have been met, the court must use the city's estimates so long as those estimates meet certain criteria described in the statute. O.C.G.A. § 36-36-55.
VIII. ANNEXATION BY LOCAL ACT OF THE GENERAL ASSEMBLY
The General Assembly has the authority to pass local Acts annexing territory to municipal corporations. The above methods are derived from the General Assembly's legislative power to annex. This authority was codified effective July 1, 1996 as Article 1A of Chapter 36, Title 36. Annexation or deannexation can be accomplished by this method. Municipalities are "creations of the General Assembly," so their boundaries may be changed by the General Assembly.
A. Applies to "Residential" Property
Local Acts annexing areas comprised of more than 50 percent residential property, by acreage, must use this Article. Residential is defined as a lot 5 acres or less on which a habitable dwelling unit is located. Presumably this article need not be followed for annexation of property less than 50 percent residential. O.C.G.A. § 36-36-15.
The author of the legislation must:
1. Give notice of the intention to introduce the bill by advertising said intent in the newspaper in which the sheriff's advertisements are published for the locality. Such notice must be published one time before the bill is introduced and can be published no earlier than 60 days prior to the beginning of the session at which the bill is introduced.
2. Give notice to the affected municipality of the intention to introduce the bill by mail, fax, or other means within 7 days of the time in which the notice is published in the newspaper as described in 1.
3. Attach a copy as advertised and an affidavit stating that the notice was published, and all other notice requirements were met. See O.C.G.A. § 28-1-14.
After receiving the notice from the author of the legislation as described in (B), the municipality shall then send a copy of the proposed legislation, via certified mail, or statutory overnight delivery, return receipt requested, to the governing authority of the county wherein the property is located. O.C.G.A. §§ 36-36-6 and 36-36-9.
The legislation may incorporate referendum approval under the terms and conditions specified in local law. However, such referendum approval is required if the area to be annexed contains more than 500 people, or more than 3 percent of the municipality's population. The municipality must pay for the referendum. O.C.G.A. § 36-36-16.
C. There is No Contiguity Requirement for This Method
See City of Fort Oglethorpe v. Boger, 267 Ga. 485, 480 S.E.2d 186 (1997).
IX. ANNEXATION OF UNINCORPORATED ISLANDS
A. Unincorporated Islands
An unincorporated island consists of an unincorporated area in existence as of January 1, 1991 with its aggregate boundaries abutting a city, or a combination of cities. In other words, the entire border of this island must touch the boundaries of incorporated areas, whether one city or several. The unincorporated land can be separated by county, municipal or state land, or by the width of a creek or river, a street right-of-way, or a railroad/public service right-of-way. For example, a parcel of land, entirely abutted along its perimeter by city land, except for a small parcel of state property on the border, could still be annexed. All the property must be in the same county.
Municipalities can annex unincorporated islands by ordinance, at a regular meeting of the city governing authority, thirty days after written notice to owners. No application or permission is required. O.C.G.A. § 36-36-92(b). Notice of intent must be mailed to owners at last known address as it appears on the ad valorem tax records of the county wherein the property is located. O.C.G.A. § 36-36-92(b).
Municipal services to the annexed area should be supplied in substantially the same manner as they are to the rest of the municipality; however, the extension of wate and sewer services should be accomplished pursuant to the policies in effect in the city for extending these services to individual lots and subdivisions. O.C.G.A. § 36-36-92(e).
X. DEANNEXATION OF PROPERTY
Deannexation of property is possible by two methods: local Act of the General Assembly, or by the reverse 100 percent method. O.C.G.A. § 36-36-22. Property deannexed by local Act cannot be "reannexed" by the same municipality under any provision of this Title 36, Chapter 36, for a period of three years. O.C.G.A. § 36-35-2(b). For a local Act, the same provisions would apply. For a reverse 100 percent method, the following provisions apply.
There must be a written application signed by all of the owners of all of the land, except the owners of any public street, road, highway, or right-of-way, proposed to be deannexed. The application must containing a complete description of the lands to be deannexed. See O.C.G.A. § 36-36-22. Prior to the city's vote on the deannexation application, the county in which such property is located must pass a resolution consenting to the deannexation. See O.C.G.A. § 36-36-22.
Chapter 7, Sign Ordinances
I. Why talk about sign regulation separately from other land use regulation?
Sign ordinances must be dealt with differently from other land uses regulations because unlike most land uses, they are protected by the First Amendment to the U.S. Constitution:
Congress shall make no law…abridging the freedom of speech…
Likewise, signs are protected by the Georgia Constitution:
No law shall be passed to curtail or restrain the freedom of speech or of the press.
Free speech is a fundamental right, and signs are considered a traditional and favored manner of speech. This increased protection means that ordinances regulating signs are subject to greater scrutiny than typical zoning ordinances.
II. Sign ordinance litigation
A. How Does the Sign Ordinance Challenge Typically Rise?
More often than not, a sign ordinance is challenged because it prevents outdoor advertising from putting up billboards where they like. When this happens, the court may look at more than just the legality of the provisions applying to billboards. Instead, the court may look at how that ordinance effects unrelated signs, and, if that regulation is not lawful, it may strike the entire sign ordinance, thereby clearing the way for the billboards as well.
B. The Levels of Judicial Scrutiny
There are three levels of judicial scrutiny applied to zoning and land use ordinances. Most ordinances will be subject to the rational basis test. This test only requires that the local government show that the ordinance is rationally related to a lawful governmental purpose; it is the easiest test for the local government to meet. On the far side of the spectrum is strict scrutiny; this will apply to all ordinances that regulate speech (i.e. signs) based upon the content of the sign. In order to pass strict scrutiny, the local government must show that the ordinance is the narrowest means of achieving a compelling governmental interest. This is very difficult to do, and most ordinances will not survive this scrutiny.
The middle ground is intermediate scrutiny; a local government can survive this test if it can show that the ordinance is reasonably tailored to meet a legitimate governmental interest, and it leaves open ample alternative means of communication. In order for this level of scrutiny to apply, the sign ordinance must be a content-neutral (as opposed to content based) time, place and manner restriction. This means that the ordinance must regulate the structure itself, rather than the content of the sign. Sign ordinances can survive this level of scrutiny if they are properly designed and adopted.
III. Crafting effective sign ordinances
A. Avoiding Content-Based Restrictions
The fundamental rule is, if you have to read the sign in order to determine whether or not it is regulated, then the ordinance is content based. Here are some examples of problem language.
1. Everything requires a permit except…
- real estate signs
- political signs
- religious signs
- governmental signs
- holiday signs
- construction signs
- direction signs
- time and temperature
2. On premises / off-premises
3. Political signs
4. Outdoor advertising signs
B. Other Common Problems
There are a number of other problems that may undermine the sign ordinance.
1. Properly adopting your sign ordinance. Unlike the rational basis test, both strict and intermediate scrutiny require that the local government base its decision to adopt on ordinance on evidence in the record at the time of adoption. This means the ordinance and the record should contain evidence supporting the public purpose of the ordinance and the means of achieving it. The local government should make findings on the record that support the express purposes of the ordinance.
The courts have required that, where an ordinance provides for permitting, the issuance of the permit should not be a matter of discretion. Instead, it should be issued if the stated grounds in the ordinance are met. Permit decisions must be made within a specified, short amount of time to prevent the pocket veto, and there must be an appeal process.
C. How Do You Do It Right?
1. Regulate structures only, and not message content
It is certainly legitimate to regulate the size of signs, including height and square footage. This can be done effectively by zoning district. The local government can also regulate illumination of signs and multi-message signs. The key is to do so without reference to the message of the sign. Here is an example of a table of permitted signs that should be acceptable:
Table of Standard Permitted Signs.
No. of ground signs
Total area of all ground sign faces
Max area of single ground sign face
Max height of ground signs
Wall Signs (number/ max total area)
Max size of single wall sign
64 sq. ft.
32 sq. ft.
2, up to 8 sq. ft. total area
2/200 sq. ft.
200 sq. ft.
RR, R1, R1A, MHP,
20 sq. ft.
4 sq. ft.
2, up to 8 sq. ft. total area
200 sq. ft.
100 sq. ft.
Can cover 25% of windows
4/200 sq. ft.
200 sq. ft.
400 sq. ft.
200 sq. ft.
Can cover 25% of windows
4/250 sq. ft.
250 sq. ft.
600 sq. ft.
300 sq. ft.
Can cover 25% of windows
4/300 sq. ft.
250 sq. ft.
2. Allow reasonable and adequate speech (and sign) opportunities
It is important, however, to always make sure that the ordinance allows a reasonable amount of opportunity for signs.
3. If you require a permit, tailor it to compelling government purposes, i.e. safety.
If a permit is required, it should be tied to achieving an important governmental purpose, such as safety. It makes sense to require a building permit for a large sign which may injure people if it falls.
It is certainly reasonable to require maintenance for sign structures, both for aesthetic reasons (preserving tourism and property values) and for safety purposes as well. We recommend tracking the International Building Code provisions for sign maintenance:
Sign and sign structure maintenance:
1. The sign and sign structure shall be maintained in good repair, structurally sound, with proper anchorage capable of supporting the imposed loads, so as not to pose a threat to the public health, safety or welfare. All structural members shall be maintained free from deterioration, and shall be capable of safely supporting the imposed dead and live loads.
2. All exterior surfaces shall be maintained in good condition. Exterior wood surfaces, other than decay-resistant woods, shall be protected from the elements and decay by painting or other protective covering or treatment. Peeling, flaking and chipped paint shall be eliminated and surfaces repainted. When required, all exposed surfaces of metal or wood shall be protected from the elements and against decay or rust by periodic application of weather-coating materials, such as paint or similar surface treatment. Sign faces shall be maintained in good repair, and shall have neatly painted, posted or otherwise maintained display surfaces, free of defects such as holes, tears, cracks, breaks or missing portions, which are plainly visible from the public right-of-way.
3. When a sign or sign structure is found to be in need of maintenance, the code enforcement officer shall issue a notice of violation to the property owner, which shall describe the maintenance issue, and provide a reasonable amount of time to repair the violation.
4. If, after receiving the notice of violation, the property owner fails to remedy the maintenance issue within the time provided, it shall be a violation of this ordinance, subject to citation. The code enforcement officer may also institute the appropriate proceeding at law or in equity to restrain, correct or abate such violation, or to require the removal of the sign or sign structure. The reasonable cost of any action taken by the City or its agents to remedy the maintenance issue shall be charged against the real estate upon which the structure is located and shall constitute a lien upon such real estate.
IV. Examples of sign cases
- Sign ordinance allowed some noncommercial signs, but, by definition, limited billboards only to commercial messages. Because the section of the ordinance dealing with billboards limited these signs only to commercial messages, court struck provision in the ordinance which provided that "if not otherwise stated, any sign not specifically permitted in a zoning district as provided under the applicable section, shall be prohibited in that district."
- Sign ordinance had a variety of regulations relating to the need for permitting and the form that a sign may take (no visible movement, no flashing, rotating, etc. lights, etc.) but expressly exempted certain enumerated categories of signs such as: (1) "flags and insignia of government, religious, charitable, fraternal, or other organizations"; (2) government identification signs and informational signs; (3) holiday lights and decorations; and (4) religious displays.
- Sign ordinance required a permit to erect or alter a sign, but exempted certain types of signs including (1) flags representing a governmental unit or body; (2) public signs posted by the government; (3) temporary political signs; (4) real estate signs; (5) construction signs; (6) street address signs; (7) certain signs displayed on vehicles; (8) signs commemorating holidays; (9) menus posted outside restaurants; (10) yard sale signs; and (11) signs customarily attached to fixtures such as newspaper machines and public telephones.
- Sign ordinance limited on-premise signs to messages advertising a product, person, service, place, activity, event, or idea directly connected with the property, thereby limiting on-premise signs to commercial messages concerning goods and services available on the property or which specifically pertain to the type of activity being advertised. The provision, in effect, prohibited the display of noncommercial messages in places where commercial signs were permitted.
- Sign ordinance allowed noncommercial signs that carry or display religious symbols, commemorative plaques of recognized historical societies and organizations, signs carrying news items or telling the time or temperature, signs erected in discharge of any governmental function, or temporary political campaign signs, however did not allow any other noncommercial or ideological signs meeting the structural definition of the ordinance, regardless of their effect on traffic safety or aesthetics.
- Sign ordinance gave an exception for quasi-public institutions located off of major thoroughfares where such facilities cannot be seen by the motoring public from a major thoroughfare to have the right to place one off-premise directional sign in the City of Union City at least 50 feet from any intersection so as not to obstruct the view of the motoring public. Court held that the ordinance favored quasi-public institutions based on the classification of the speaker rather than the content of the message, and therefore an equal protection analysis was proper. Because the Plaintiff was not a suspect class and erecting a sign within 50 feet of an intersection was not a fundamental right, the Court applied the "rational basis test," which the City was able to satisfy.
- Sign ordinance allowed temporary political on-premise signs in residential zoning districts identifying or urging support for a particular election issue or candidate. The ordinance, however, did not provide for permanent signs expressing the political, religious, or other noncommercial views of residents, nor did it provide an adequate substitute for communication through residential signs that the city prohibited.
- Sign ordinance provided that no sign shall contain statements, words or pictures of an obscene, indecent or immoral character such as will offend public morals. Court held provision was void for vagueness because it required the speaker to step outside of his or her own moral consciousness and independently determine the moral sensibilities of the general public. Court also held that the provision was overbroad because its broad, undefined terms necessarily sweeps within it ambit both protected and unprotected speech.
- Sign ordinance restricted signs which identified and urged voter support for a particular election issue, political party or candidate for public office to certain zoning districts for a period of six weeks prior to and one week after a duly authorized election. Because the restriction applied only to political signs it was content-based.
- Sign ordinance required a permit prior to erecting any new billboard and was, therefore, a prior restraint on speech. The Court held that the ordinance was an impermissible prior restraint because it failed to contain explicit limits on the County Administrator's discretion to grant or deny a permit because the ordinance only stated that permits shall be reviewed by the County Administrator and issued in accordance with the Standard Building Code (SBC), however the SBC does not provide specific grounds under which an Administrator may deny a billboard permit application.
- Sign ordinance limited political message signs to 32 square feet, except in residential districts where they could be no larger than six square feet. The Court found the provision to be a based on content by allowing commercial messages to be displayed more prominently than political messages. The Court applied strict scrutiny and struck the ordinance as unconstitutional because the County's goals of safety and aesthetics were not compelling reasons for the disparate treatment that were narrowly tailored to further those interests.
- Sign ordinance contained provision which identified 23 types of signs which were exempt from the permit requirements in all districts. Some of the exemptions included (1) signs located on fences or walls surrounding athletic fields or within sports arenas, stadiums and the like; (2) religious displays that do not constitute advertising; and (3) signs used as a construction sign by the general contractor of a development. Court found the provisions to be content-based and struck the provisions under a strict scrutiny standard.
- Sign ordinance contained a provision prohibiting signs mounted on a vehicle intended to attract attention for the purpose of advertising a business, product, service or the like, but not for other purposes, and also excluded certain prohibited signs based on the type of vehicle, including emergency vehicles, taxi cabs and delivery vehicles. The Court found this to be a double content-based provision and struck the provision under a strict scrutiny standard.
- Sign ordinance provision prohibited signs employing motions, visible parts, or the illusion of motion, but excluded time and temperature signs. Court found this provision to be content-based and struck the provision under a strict scrutiny standard.
- Sign ordinance provision banned all off-premise signs. Ordinance also contained a provision that grandfathered all existing off-premise signs, but provided that when an existing off-premise sign was removed or destroyed, no new off-premise signs will be permitted to be constructed in its place. The Court found the provision to be constitutional under an intermediate scrutiny standard.
- Sign ordinance provided that each commercial lot, building or tenant space may have one real estate 'for sale' or 'for rent' sign, provided such sign is located on the subject lot or premises" and does not exceed the size limitations. , however, they could only be located in a residential zoning district on property which is improved with a dwelling. The Court found that because political signs were subject to more regulatory burden than real estate signs, the sign ordinance discriminated against political speech in favor of commercial speech and was, therefore, a content-based regulation.
- Sign ordinance provision stated that "any property owner, business, tenant, agent, or contractor may be required to obtain a permit from the Public Works Department and/or the Department of Planning and Zoning prior to the erection, replacement, reconstruction, or relocation of a sign. Said permit may be required for all signs except those specifically exempted within this ordinance. If said permit is required, the fee for a sign permit will not be required in addition to the building permit." The Court found that the ordinance lacked any time limit within which the City must grant or deny an application. Further, the Court found that the provision gave the City unbridled discretion as to whether or not to require a permit from a party wishing to construct a sign. The Court ultimately held that the lack of objective criteria to guide the City official's decisions violated the First Amendment.
Chapter 8, Zoning and Federal Law
I. INTRODUCTION TO FEDERAL LAW ON ZONING
Certain types of uses are subject to protection by federal law. The practical effect of this is that the local government may have to accord special considerations to land use questions dealing with such protected uses and activity. In the event of a legal challenge, the federal statute may provide an enforcement mechanism; otherwise, 42 USC § 1983 will apply.
II. First Amendment CLAIMS
The First Amendment to the U.S. Constitution provides some of the most fundamental protections for our civil rights. Particularly in the context of free speech, the clauses of the First Amendment bear directly on local government land use decisions. This chapter will provide an introductory look at these protections, and how they have been interpreted in the context of zoning.
A. Adult Entertainment
As a general rule, local governments can regulate adult entertainment establishments. The important thing is that the regulation or ordinance not be aimed at the content of the expression. Rather, any such ordinance should be a time, place, or manner regulation, which the courts classify as "content-neutral" in nature. For example, an ordinance providing that adult theaters may not be located within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school has been held to be a content-neutral, time, place and manner regulation. Content-neutral time, place, and manner regulations can constitutionally be enacted so long as they serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.
In regulating adult entertainment, the courts have found that ordinances aimed at the "secondary effects" of adult businesses, rather than the content of the materials shown or sold at such businesses, will usually be deemed time, place, and manner restrictions. Examples of such secondary effects are the prevention of crime, protection of the retail trade, maintaining property values, and preserving the quality of urban life. In order to prove the necessary nexus between such businesses and their secondary effects, local governments in enacting such ordinances should include evidentiary support for their contentions that such businesses would have negative secondary effects on certain areas within their jurisdiction. For instance, local governments can conduct studies, or they may rely on studies conducted by other cities showing such effects to particular neighborhoods.
As stated above, the standard also requires that there be alternative avenues of communication available. A zoning ordinance enacted by a local government should leave a number of sites available for adult businesses under the new zoning regime which are greater than or equal to the number of adult businesses in existence at the time the new zoning regime takes effect. However, just because properties on which adult businesses may locate are currently occupied and not for sale or lease will not necessarily mean that alternative avenues have been foreclosed by a local government. As the U.S. Supreme Court has put it, adult businesses must fend for themselves in the real estate market. This generally means that just because available properties are expensive, such property is not unavailable for First Amendment purposes. Also, the fact that impediments, such as having to build a new facility, having to clean up an existing location, having less space than desired, having to purchase a larger lot than is needed, or having to install lighting or parking, make development of an adult business more difficult usually will not deem a property unavailable for First Amendment purposes. Finally, if an individual meets the criteria of a zoning ordinance to open an adult business establishment, a local government generally cannot impose an additional requirement, such as the need to obtain a special exception which is decided upon by the local governing body, without running afoul of the First Amendment.
B. Religious Assemblies
Churches are a type of land use which, like signs and adult entertainment, are protected by the First Amendment to the U.S. Constitution and also the Religious Land Use and Institutionalized Persons Act of 2000. The U.S. Supreme Court decision Employment Div., Dept. of Human Resources of Oregon v. Smith is the modern starting point for any discussion of the free exercise clause. The issue there was whether a law prohibiting peyote use violated the free exercise rights of certain Native Americans. The challenged law in that case was a criminal statute applying generally and neutrally to everyone, and was not aimed at religious believers as a group. The Court declined to apply the strict scrutiny test – which asks whether the challenged regulation is the least restrictive means of achieving a compelling governmental interest – to such a law of general applicability. Thus, a law (such as a zoning ordinance) that may incidentally burden an individual's religious exercise, but which is generally applicable rather than aimed at religious exercise, will normally not run afoul of the free exercise clause.
Our Supreme Court revisited this issue in Church of the Lukumi Babalu Aye v. City of Hialeah, which involved a ban on ritual slaughter of animals. While reaffirming the rule that a neutral law of general applicability would not be subjected to the strict scrutiny test, the Court, after considering the circumstances surrounding the adoption of the ordinance, found that it was not neutral as to religion, but was instead directly aimed at regulating Santeria religious exercise. Before striking the ordinance down, the Court provided the following guidance to local governments:
The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.
These U.S. Supreme Court decisions show us that land use laws that burden religious exercise, like other laws, must be neutral and of general applicability in order to avoid strict scrutiny. But this left significant room to argue whether a law is neutral and of general applicability.
Congress responded by adopting first the Religious Freedom Restoration Act of 1993 (RFRA), which was struck down in City of Boerne v. Flores. Congress then replied with the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). As its title indicates, RLUIPA applies to land use restrictions and separately to the treatment of institutionalized persons. It is intended to remove the neutral / generally applicable qualifier from the Smith case. There is no mention of an exclusion for neutral laws of general applicability; if the restriction places a substantial burden on religious exercise, then it must survive strict scrutiny.
Why did Congress feel that it was necessary to go to such lengths to adopt a statute that obviously seeks to direct the courts' interpretation of the First Amendment, specifically in the context of zoning and land use regulations? To answer that question, it is helpful to review the legislative record. It is replete with testimony and studies providing examples of local governments discriminating against churches in general, or against specific denominations. This shows a belief that local governments across the country are cloaking regulations substantially burdening the free exercise of religion in generally applicable zoning ordinances in order to avoid challenge under the Smith case.
RLUIPA has several substantive provisions, the first of which is discussed above, subjecting any land use regulation substantially burdening religious exercise to strict scrutiny. Substantial burden is not defined by the Act, but the Eleventh Circuit has held that "a 'substantial burden' must place more than an inconvenience on religious exercise; a 'substantial burden' is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly." The Eleventh Circuit has held that this does not mean that a zoning ordinance places a substantial burden just because it limits churches to certain zoning classifications. Similarly, the Eleventh Circuit has held that requiring a religious institution to apply for a special use permit does not constitute a substantial burden. Therefore, although the issue of what does and what does not constitute a substantial burden has not yet fully been fleshed out, it appears that more is required than simply subjecting a religious institution to land use regulation.The next substantive provision is the equal terms provision, and it is where many land use regulations will fail:
On first reviewing this ordinance, it appears to be a restatement of the equal protection clause; however, in the context of facial challenges, the Eleventh Circuit has interpreted it more broadly, because it does not include the similarly-situated language familiar from equal protection jurisprudence. Instead, it applies to all assemblies and institutions. Under this interpretation, the Eleventh Circuit found that a zoning ordinance that prohibited churches in zoning districts where private clubs and lodges were allowed violated the equal terms provision.
The Eleventh Circuit recently discussed the various ways that a zoning ordinance could violate the equal terms provision in Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County. The Court listed three separate equal terms claims, beginning with the facial unequal treatment exemplified by the Midrash case above, where the ordinance treats religious assemblies less favorably than secular assemblies. Second, an ordinance that does not violate the equal terms provision on its face might still be void if is shows "religious gerrymandering." The Court pointed to the Lukumi case as example of an ordinance that was facially neutral, but which hid an animus against religious exercise. In order to prove such a case, the plaintiff "would have to show that the challenged zoning regulation separates permissible from impermissible assemblies or institutions in a way that burdens 'almost only' religious uses." The third potential claim is that a facially-neutral regulation is applied in a discriminatory manner, such as if a regulation required variances for all assemblies, but in practice variances are only granted to secular uses, or if a certain congregation was singled out for denial of the variance.
The next substantive RLUIPA provision is similar to the preceding third equal terms claim:
No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.
The final substantive land use provision of RLUIPA is the exclusion and limitations provision:
No government shall impose or implement a land use regulation that--
(A) totally excludes religious assemblies from a jurisdiction; or
(B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.
This is clearly targeted at attempts to zone out churches. While subsection (A) appears to need no clarification, subsection (B) is very interesting. It creates an issue of fact as to whether a regulation's limitation of religious uses is reasonable. It also raises an issue common to practitioners of adult entertainment litigation: what reasons, and what studies and evidence, did the local government rely upon if it chooses to limit the zones in which a religious institution may be located. This issue, too, has been explored very little in the Eleventh Circuit.
With that in mind, what must a local government do or not do to avoid RLUIPA challenges? It is clear that RLUIPA does allow regulation of churches, and does not necessarily require more beneficial treatment of churches than of secular uses. However, a land use regulation may not treat secular assemblies and institutions more favorably than religious institutions. Thus, a zoning ordinance that allows secular assemblies in a given district but not religious assemblies may be struck down. A common pitfall involves permitting certain secular assemblies as a matter of right, but requiring churches to obtain special use permits. Similarly, it would be a violation to place a minimum acreage requirement on churches but not secular assemblies. These would all be facial violations; at the same time, it is clear that if local government action under a facially-neutral ordinance results in disparate treatment, then RLUIPA will likely have been violated. For example, if all religious and secular assemblies require a special use permit under the ordinance, but in practice the local government only grants special use permits to secular uses, a RLUIPA claim will most likely lie. Similarly, it may be a violation if special use permits are granted to mainline religions, but not to a certain sect or denomination. And it might be a violation if a facially-neutral requirement, such as a minimum number of parking spaces, were strictly applied to a certain church, but was overlooked in regards to secular or other religious assemblies. Thus, in a nutshell, RLUIPA requires a local government to allow religious exercise, within reasonable limits, and to treat religious institutions at least as favorably as secular assemblies.
III. THE EQUAL PROTECTION CLAUSE AND DISCRIMINATION
Local government zoning ordinances typically delineate districts which allow certain permitted uses and prohibit certain others. In doing so, certain groups who seek to utilize a given use in a particular district may be limited or even prohibited from doing so because of the provisions of the applicable ordinance. However, Federal law protects people from being discriminated against based upon a number of suspect classes or conditions, including race, disability and gender.
A. The Equal Protection Clause
Under an Equal Protection Clause analysis, if a regulation classifies on the basis on any one of a number of suspect classifications such as race, alienage, or national origin, the regulation may be deemed unconstitutional under the courts' strict scrutiny standard. In those instances where a quasi-suspect class is implicated, the Court will apply an intermediate level of scrutiny. In a seminal U.S. Supreme Court case based on the denial of a special use permit for an organization to operate a home for the mentally handicapped, the Court held that mental retardation is not a suspect class, nor a quasi-suspect class, for which a heightened level of scrutiny would apply . The Court did, however, reach the finding that the City's requirement of a special use permit for a home for the mentally handicapped, while not requiring such a permit from other similar uses such as nursing homes, hospitals, and apartments, failed to satisfy even the Court's lowest level of scrutiny: the rational basis test.
B. The Fair Housing Act (FHA)
The FHA states that discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [handicapped] person[s] equal opportunity to use and enjoy a dwelling." This statute may be implicated where zoning decisions make it difficult for a certain class of people to find suitable housing. The courts have held that housing may become unavailable within the meaning of the FHA as a result of zoning decisions that effectively prohibit the construction of housing. The requirement that the unequal treatment be on the basis of race generally precludes claims where an individual cannot show intentional discrimination. However, an individual can also prove a violation of the FHA by a showing of significant discriminatory effect. A party can demonstrate a discriminatory effect in two ways: it can show that the decision has a segregative effect or that it makes housing options significantly more restrictive for members of a protected group than for persons outside that group.
C. The Americans with Disabilities Act (ADA)
Similarly, the Americans with Disabilities Act decrees that local governments are explicitly prohibited from administering licensing and zoning permit procedures in a manner that subjects people with disabilities to discrimination on the basis of their disability. Instead, local governments are required to make reasonable accommodations to people with disabilities. A common pitfall in zoning ordinances involves group homes. Some ordinances reason that group homes are commercial enterprises, and thus should be in commercial zoning districts. However, if group homes are completely excluded from residential areas, that means that disabled people requiring group home care are barred from living in a residential area, a potential ADA
violation. The resolution to this issue commonly is to allow small group homes in residential areas.
Southview Cemetary Ass'n v. Hailey, 199 Ga. 478, 34 S.E.2d 863 (1945); Mack II v. City of Atlanta, 227 Ga. App. 305, 489 S.E.2d 357 (1998).
Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995), (for variance, board considers whether facts applying to property warrant relief from zoning under standards in ordinance); Bentley v. Chastain, 242 Ga. 348, 249 S.E.2d 38 (1978).
Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995)(mandamus is remedy when zoning ordinance is silent as to judicial review); Shockley v. Fayette County, 260 Ga. 489, 396 S.E.2d 883 (1990).
Jacobs v. The Florida Bar, 50 F.3d 901 (11th Cir. 1995); O. S. Advertising Co. of Georgia v. Rubin, 267 Ga. 723, 482 S.E.2d 295 (1997); Village Centers, Inc. v. DeKalb County, 248 Ga. 177, 281 S.E.2d 522 (1981).