Legal Foundations of Planning and Zoning in Georgia Georgia State University College of Law November 9, 2006 David C. Kirk, AICP Troutman Sanders LLP

“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).

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

Affecting the Bundle of Rights Mr. Lucas’ Beachfront Lots in SC The Loretto Apartment House in NY Lake Tahoe Property Owners’ Lands

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

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

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

Cases Involving the Police Power

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.

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.

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”

Procedural Due Process

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

Equal Protection 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

Basic Georgia Zoning Law

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).

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).

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).

“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

“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

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).

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).

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).

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).

Basic Georgia Zoning Law - VIII No vested right is acquired to develop property in accordance with variance granting increase in density under previous zoning classification when, over 15 year period, property owner made no significant expenditures in reliance on variance or official assurances that building permit would issue, aside from property purchase. Meeks v. City of Buford, 275 Ga. 585 (2002).

Key Georgia Planning and Zoning Statutes

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

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

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

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

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

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*

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

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 3. Proposals within 3,000 feet of military base, installation, or clear zone

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).

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).

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).

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).

Steinberg Act Applies to Counties over 625,000 and Municipalities over 100,000 located within such Counties. 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 . . .”

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.

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

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).

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)

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

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).

Georgia Development Impact Fee Act Establishes minimum standards for adoption of development impact fee ordinances Adoption of comprehensive development plan with capital improvements element Determination of system improvements, service areas, and fee structure Formation of Advisory Committee Public hearings

Georgia Development Impact Fee Act - II Defines Key Terms “Project Improvements” are site improvements and facilities necessary for the use and convenience of occupants of development project “System Improvements” are improvements or facilities that provide “more than incidental service or facilities’ capacity to persons other than users or occupants of a particular project . . .” “Public Facilities” limited to capital facilities, land, and related “soft costs.”

Georgia Development Impact Fee Act - III Establishes Procedures for Administering Impact Fee Ordinances Provision of credits for system improvements provided by developers Expenditure of fees Refunds Appeals Private Agreements

Case Law Related to Impact Fees County ordinance imposing impact fees only on new development in unincorporated areas is rational and reasonable and does not violate equal protection, as county lacks power over development in incorporated areas. Cherokee County v. Greater Atlanta Homebuilders Ass’n, 255 Ga. App. 764 (2002).

Bill Doebele’s Three Rules of Planning & Zoning “Three Martini Rule” Facts Win Cases Bottom Drawer Rule

David C. Kirk, AICP Troutman Sanders LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, Georgia 30308 404-885-3415 david.kirk@troutmansanders.com