Legal Foundations of Planning and Zoning in Georgia

1. Legal Foundations of Planning and Zoning in Georgia Georgia State University College of Law March 21, 2005 David C. Kirk, AICP Troutman Sanders LLP

2. “After all, a policeman must know the Constitution, then why not a planner?” San Diego Gas & Electric v. City of San Diego, 450 U.S. 621, 661 n.26 (1981) (Brennan, J., dissenting).

3. Economic Use Sell to Others Give Away Exclude Certain Things Quiet Enjoyment Refuse to Sell Exclude Other People Prevent Certain Neighboring Uses Property Rights

4. Affecting the Bundle of Rights • Mr. Lucas’ Beachfront Lots in SC • The Dolan’s Hardware Store in Oregon • The Loretto Apartment House in NY • Lake Tahoe Property Owners’ Lands

5. Legal Foundations of Planning and Zoning in Georgia • United States’ Constitution • Georgia Constitution of 1983 • Georgia Statutes • Case Law - Federal and State

6. Caveats • General Legal Concepts • General Legal Requirements • No Two Cases are the Same (see Bill Doebele’s Rule No. 2)

7. Police Power • Sovereign power of the state to regulate and control private behavior in order to protect and promote greater public welfare • “Protection of health, safety, morals, convenience, and general welfare” • Police power must be delegated by state to counties and municipalities

8. Constitutional Foundations for Planning and Zoning • Federal - Zoning is a constitutional exercise of police power. City of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). • Georgia - “The governing authority of each county and of each municipality may adopt plans and may exercise the power of zoning” Ga. Const. of 1983, Art. 9, § 2, ¶ 4.

9. Georgia Constitutional Limitation on Planning and Zoning “This authorization shall not prohibit the General Assembly from enacting general laws establishing procedures for the exercise of such power.” Ga. Const. of 1983, Art. 9, § 2, ¶ 4.

10. Critical Constitutional Concepts Procedural Due Process - Notice and an opportunity to be heard in a fundamentally fair hearing Substantive Due Process - Rational relationship to a legitimate governmental purpose

11. Substantive Due Process • Legitimate Governmental Purpose – Protection of health, safety, welfare, morals, property values, quiet enjoyment, etc. • “Rational” Relationship – A conceivable, believable, reasonable relationship

12. Critical Constitutional Concepts • Equal Protection - Treating those that are similarly situated the same, or making distinctions only on legitimate grounds • Distinctions based on fundamental right or “protected class” status are unconstitutional

13. Basic Georgia Zoning Law “Zoning Law 101”

14. Basic Georgia Zoning Law • Act of zoning is legislative in nature & thus adoption of zoning ordinance is presumed valid. Gradous v. Board of Comm’rs of Richmond County, 256 Ga. 469 (1986). • Presumption of validity may only be overcome by clear and convincing evidence of a significant detriment to landowner and insubstantial relationship to public health, safety, morality, or general welfare. Gwinnett County v. Davis, 268 Ga. 653 (1997).

15. Basic Georgia Zoning Law - II • If initial presumption of validity is overcome, local government must present evidence of zoning’s reasonable relationship to public interest. DeKalb County v. Dobson, 267 Ga. 624 (1997). • Challenge to zoning must be filed within 30 days of final decision. Village Centers, Inc. v. DeKalb County, 248 Ga. 177 (1981). • Challenge to rezoning decision is a de novo proceeding. Walton County v. Scenic Hills Estates, Inc., 261 Ga. 94 (1991).

16. Basic Georgia Zoning Law - III • Challenge to administrative/quasi-judicial decisions (variance, special use permit) is judicial review “on the record.” Jackson v. Spalding County, 265 Ga. 792 (1995). • Constitutional challenge to zoning ordinance may not be made for first time in superior court. Ashkouti v. City of Suwanee, 271 Ga. 154 (1999). • Validity of zoning ordinance determined by specific facts & relevant “general lines of inquiry.” Guhl v. Holcomb Bridge Rd. Corp., 238 Ga. 322 (1977).

17. “Guhl” Factors • Existing uses and zoning of nearby property • Extent to which property values are diminished by the particular zoning restrictions • Extent to which the destruction of property values of the plaintiff promotes the health, safety, morals or general welfare of the public

18. “Guhl” Factors - II • Relative gain to the public as compared to the hardship imposed upon the individual property owner • The suitability of the subject property for the zoned purpose • The length of time the property has been vacant as zoned, considered in the context of land development in the vicinity of the property

19. Basic Georgia Zoning Law - IV • Civic associations alone do not have standing to challenge zoning decision. DeKalb County Bd. of Comm’rs v. Druid Hills Civic Ass’n, 269 Ga. 619 (1998). • Citizens challenging zoning decision must meet “substantial interest - aggrieved citizen test.” DeKalb County v. Wapensky, 253 Ga. 47 (1984). • ButseeRCG Properties, LLC v. City of Atlanta Board of Zoning Adjustment, 260 Ga. App. 355, 579 S.E.2d 782 (2003) (holding that BZA may not challenge for first time in Superior Court the standing of a person challenging the BZA decision).

20. Basic Georgia Zoning Law - V • Citizens challenging zoning decision must show fraud, corruption, or manifest abuse of zoning power. Jackson v. Delk, 257 Ga. 541 (1987).

21. Basic Georgia Zoning Law - VI • Vested rights of property owners may not be infringed upon by adoption of new ordinance. W.M.M. Properties, Inc. v. Cobb County, 255 Ga. 436 (1986). • A property owner filing an application seeking to alter use of land has a vested right to consideration of such application under the statutory law in existence at the time of the filing. Recycle & Recover, Inc. v. Georgia Bd. of Natural Resources, 266 Ga. 253 (1996).

22. Basic Georgia Zoning Law - VII • Improperly issued permits are void, and do not vest rights, even when they have been relied upon and money expended. Corey Outdoor Adver., Inc. v. Board of Zoning Adjustment of City of Atlanta, 254 Ga. 221 (1985); Café Risque/We Bare All Exit 10, Inc. v. Camden County, 273 Ga. 451 (2001).

23. Key Georgia Planning and Zoning Statutes

24. Key Georgia Planning and Zoning Statutes “Georgia Planning Act of 1989”- O.C.G.A. §§ 36-70-1 through 36-70-5 “The Zoning Procedures Law” - O.C.G.A. §§ 36-66-1 through 36-66-6 Zoning Proposal Review Procedures (“Steinberg Act”) - O.C.G.A. §§ 36-67-1 through 36-67-6

25. Key Georgia Planning and Zoning Statutes - II Conflict of Interest in Zoning Actions - O.C.G.A. §§ 36-67A-1 through 36-67A-6 Georgia Development Impact Fee Act -O.C.G.A. §§ 36-71-1 through 36-71-13

26. Georgia Planning Act of 1989 • Purpose - authorize and promote coordinated and comprehensive planning by county and municipal governments • Authorizes DCA to establish minimum planning standards & procedures • Requires RDC membership & dues • Requires participation in compiling data base

27. Georgia Planning Act of 1989 -II • Authorizes local governments to: - develop comprehensive plans- implement consistent land use regulations- implement capital improvement plans- employ planning staff- contract with other governments for planning • Does not limit or compromise zoning power of local governments

28. Zoning Procedures Law • Establishes Minimum Procedures for Local Zoning Decisions in Georgia • Defines “Zoning Decision” 1. Adoption of Zoning Ordinance 2. Text Amendment 3. Rezoning of Property 4. Zoning Annexed Property 5. Grant of Permit for Special Use

29. Zoning Procedures Law - II • Hearing Required (using adopted procedures) • Notice Required 1. Newspaper Notice 45 - 15 Days Prior to Hearing Time, Place, Purpose of Hearing Location, Current & Proposed Zoning*

30. Zoning Procedures Law - III 2. Sign Required* “Conspicuous Place” 15 Days prior to hearing Information required by local ordinance • Standards Required

31. Zoning Procedures Law - IV • If rezoning denied, local government may not consider rezoning proposal for same property for six months following date of denial. • Special Provisions 1. Annexation 2. Drug Rehab Centers/Halfway Houses

32. Zoning Procedures Law - V • ZPL amended in 2003 to add O.C.G.A. § 36-66-6, which establishes coordination procedures for zoning actions within 3,000 feet of military base/installation or Clear Zone. • Requires planning department to request recommendation and supporting facts from base commander. • Requires investigation and recommendation based on several factors.

33. Case Law Related to the Zoning Procedures Law • Procedural requirements of ZPL are mandatory; failure to comply invalidates zoning action. McClure v. Davidson, 258 Ga. 706 (1988). • Failure to comply with requirements of ZPL invalidates entire ordinance. Tilley Properties, Inc. v. Bartow County, 261 Ga. 153 (1991).

34. Case Law Related to the Zoning Procedures Law -II • ZPL does not require public hearing at every step in the process - too burdensome on local government. City of Cumming v. Realty Dev. Corp., 268 Ga. 461 (1997). • Failure to follow procedures in own ordinance may invalidate decision. Save the Bay, Inc. v. Mayor and City of Savannah, 227 Ga. 436 (1971).

35. Case Law Related to the Zoning Procedures Law -III • Temporary moratorium is not “zoning decision” subject to Zoning Procedures Law’s notice and hearing requirements. City of Roswell v. Outdoor Systems, Inc., 274 Ga. 130 (2001).

36. Case Law Related to the Zoning Procedures Law - IV • Sign ordinances are subject to the requirements of the Zoning Procedures Law if drafted in such a way as to regulate the use and development of property (signs) by means of zones or districts. City of Walnut Grove v. Questco, Ltd., 275 Ga. 266 (2002).

37. Steinberg Act • Applies to Counties over 625,000* and Municipalities over 100,000 located within such Counties. (*2002 Amendment) • Ensures zoning decisions made “consistently and wisely and in keeping with the long-range requirements of the public health, safety, and welfare.” • Ensures “ . . . that zoning decisions are made on the basis of a record . . .”

38. Steinberg Act - II • Requires Staff and Planning Commission to investigate and make recommendation regarding: 1. Suitability of use; 2. Adverse effects on neighboring property; 3. Economic use of property as zoned; 4. Impact on streets, transportation, schools, utilities; 5. Conformity with land use plan; and 6. Existing or changing conditions.

39. Steinberg Act - III • Requires applicant to submit impact analysis using same factors to be considered by local staff and Planning Commission • Requires review of written analysis & recommendation at public hearing

40. Case Law Related to Steinberg Act • Act’s requirements are strictly procedural and do not bind local government or infringe on its ability to exercise zoning power. Northridge Cmty. Ass’n v. Fulton County, 257 Ga. 722 (1988). • Steinberg Act standards do not apply to text amendment. But…ZPL procedural requirements apply to text amendment of general application. Atlanta Bio-Med, Inc. v. DeKalb County, 261 Ga. 594 (1991).

41. Conflict of Interest in Zoning Actions • “Local Government Officials” • Requires Disclosure of Financial Interests 1. Real Property 2. Business Entity 3. Member of Family • Disclosure in Writing • Disqualification – Recusal (if 1 or 2 Above)

42. Conflict of Interest in Zoning Actions - II • Requires Disclosure of Campaign Contributions Aggregating $250.00 or More Within Two Years Prior to Application Applicant Must Disclose Within Ten Days of Application Opponent Must Disclose Five Days Prior to Hearing • Allows for Appointment of Special Master

43. Case Law Relating to Conflicts • Self-interest or conflicted participation by public official in zoning decision will invalidate rezoning action. But, action involving public official must directly and immediately affect his pecuniary interest, not be remote or speculative. White v. Board of Comm’rs of McDuffie County, 252 Ga. App. 120 (2001). • O.C.G.A. Chap. 36-67A does not prohibit official who has properly disclosed interest and recused himself from taking steps normally and properly taken by other private property owners to influence application. Little v. City of Lawrenceville, 272 Ga. 340 (2000).

44. Recent Developments • Fundamental Nature of Zoning Decisions • Ambiguities in Zoning Ordinance Language • Exclusion of Mobile Homes • Vested Rights • Award of Attorney Fees in Zoning Cases • Settlement Agreements in Land Use Litigation

45. Fundamental Nature of Zoning Decisions • Lewis v. Brown, Case No. 4:03-CV-330-RLV (N. Dist. Ga. Sept. 27, 2004). A decision by county commissioner to deny rezoning was executive decision merely enforcing an existing zoning regulation rather than a legislative decision and thus does not give rise to a substantive due process claim under the federal constitution.

46. Ambiguities in Language of Zoning Ordinance • JWIC, Inc. v. City of Sylvester, 2004 WL 2148422 (Ga. Sept. 27, 2004). In case in which city argued apartments did not fit within definition of “multi-family dwelling” the Court reaffirmed the rule that ambiguities in a zoning ordinance must be resolved in favor of the property owner.

47. Exclusion of Mobile Homes • King v. City of Bainbridge, 276 Ga. 484 (2003). City zoning ordinance preventing placement of mobile home in an R-2 residential district not preempted by federal law governing mobile home construction standards and not unconstitutional when enacted to regulate housing stock quality and promote general safety concerns.

48. Vested Rights • Meeks v. City of Buford, 275 Ga. 585 (2002). No vested right acquired to develop property in accordance with 1985 variance granting increase in density under previous zoning classification when property owner made no significant expenditures in reliance on variance or official assurances that building permit would issue, aside from property purchase.

49. Award of Attorney Fees in Zoning Cases • Southland Outdoors, Inc. v. Putnam County, 265 Ga. App. 399 (2004). Where county’s revocation of building permit for shooting range lacked factual or legal support, and county offered no defense and called no witnesses at hearing, and where county commissioners could not articulate any reason to justify revocation, landowner is entitled to attorney fees.

50. Settlement Agreements • Buckhorn Ventures v. Forsyth County, 262 Ga. App. 299 (2003). Settlement agreement binding future county commissions from rezoning property in such a way as to prohibit uses allowed in agreement was void as an ultra vires act, thus not enforceable.