Hb 1405: Amendments to the Zoning Procedures Law

• Jurisdiction: Georgia,United States
• Citation: Vol. 39 No. 1
• Publication year: 2022

HB 1405: Amendments to the Zoning Procedures Law

Audra Murphey

amurphey1@student.gsu.edu

Kristy Nguyen

knguyen73@student.gsu.edu

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LOCAL GOVERNMENT

Zoning Procedures: Amend Title 36 of the Official Code of Georgia Annotated, Relating to Local Governments, so as to Revise "The Zoning Procedures Law"; Revise Provisions Related to Judicial Review of Zoning Decisions; Revise Definitions; Provide for Requirements for Zoning Decisions by Boards or Agencies Using Delegated Powers; Provide Additional Notice and Hearing Provisions for Changes to Zoning Ordinances that Revise Single-Family Residential Classifications and Definitions so as to Authorize Multifamily Residential Property Uses; Require Review Procedures for Decisions Made by Boards or Agencies Using Delegated Powers; Provide for Judicial Review of Zoning Decisions; Require Certain Designations Relating to Appeals of Quasi-Judicial Decisions; Provide for Related Matters; Provide for an Effective Date and Applicability; Repeal Conflicting Laws; and for Other Purposes

Code Sections: O.C.G.A. §§ 36-66-1 -2, -3, -4, -5 (amended); 36-66-5.1 (new)

Bill Number: HB 1405

Act Number: 881

Georgia Laws: 2022 Ga. Laws 825

Effective Date: July 1, 2022

Summary: The Act amends the zoning procedures law to clarify the process for challenging and appealing certain land use decisions. The Act codifies the longstanding appeals process for zoning decisions that existed prior to 2017 such that legislative zoning challenges will be reviewed de novo by a superior court. Additionally, the Act designates which local government employees receive notice of such zoning appeals.

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History

In the United States, the amount of affordable housing has reached a historic low.¹ From 2018 to 2020, America's housing shortage increased from 2.5 million units to 3.8 million units.² This crisis has even been recognized by the White House—in September 2021, the Biden Administration proposed regulatory changes to make home ownership more feasible and enticing for first-time homebuyers.³

Unsurprisingly, Georgia, a state with rising housing costs and average wages lower than pre-Great Recession levels, has felt the brunt of this housing crisis.⁴ In Atlanta, between 2000 and 2017, the "median rent rose by over 70%, but [the] median income only increased by 48%."⁵ Additionally, in 2017, 46% of Georgians who rented "spent more than 30[%] of their household income on rent."⁶ The COVID-19 pandemic has exacerbated this existing crisis nationally and in Georgia.⁷ While housing prices in the country skyrocketed—

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increasing by 5.7% during 2020—renters earning less than $25,000 annually became much more likely to lose income due to the pandemic shutdowns.⁸ By November 2020, nearly 25% of Georgia renters had missed at least one month's payment.⁹ Although the federal government tried to offer relief for tenants by passing the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), many counties in Georgia were unable to give out all of these federal funds because many residents did not meet the federal guidelines since they were "already in trouble" before the COVID-19 pandemic.¹⁰

In 2021, given Atlanta's housing shortage and estimates that its population could more than double in the next few decades, city council members proposed to rezone over 2,000 residential lots from single-family to multi-family.¹¹ But after nineteen of Atlanta's Neighborhood Planning Units (organizations that give local residents power over the rezoning and development process) provided vocal opposition to the plan, city officials "backed off from the proposal.¹²

One year later, after witnessing the increase in public debate about the mechanisms to challenge such zoning decisions, members of the Georgia General Assembly addressed some of these concerns in House

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Bill (HB) 1405.¹³ In Georgia, courts have divided land use decisions into two classifications: legislative and quasi-judicial.¹⁴ Legislative decisions, including rezoning and special land use permits, are made by a local legislative body such as a county commission or city council.¹⁵ Quasi-judicial land use decisions, such as receiving a variance for housing renovations, are made by a delegated body with the power to make decisions only when applying very specific criteria.¹⁶ HB 1405 codifies that all legislative land use decisions may be appealed to superior court for de novo review.¹⁷

Representative Shea Roberts (D-52nd), a land use attorney and the bill's sponsor in the Georgia House of Representatives, claimed that the purpose of HB 1405 "is to take us back to what the law was prior to 2017."¹⁸ Before 2017, appeals of zoning decisions were conducted de novo, meaning that the superior court could look at the legal and factual issues anew.¹⁹ Thus, lawyers, citizens, and local governments who prepared and reviewed materials for zoning decisions were able to provide far more evidence—including appraisal information, fair market value of property to prove diminution of value, and expert traffic reports—at the court level in addition to what was provided at the local government level.²⁰

In 2017, the language in the Georgia Supreme Court's City of Cumming v. Flowers, a variance case, appeared to call into question

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whether challenges to rezoning decisions were also to be treated as "quasi-judicial" subject to on-the-record appeals.²¹ In Flowers, the court used "overly broad language," which has been interpreted to mean that all zoning decisions could only be appealed by certiorari.²² This interpretation altered the way that people prepared for legislative zoning hearings because the appellate court could only review the record that was previously in front of the zoning review board, the county commissioner, or the city council.²³ This interpretation introduced more uncertainty into the zoning process, forcing parties and decision-making bodies to expend more resources on establishing thorough records in zoning hearings than was previously necessary.²⁴

Further, those attempting to appeal zoning decisions were frustrated by the difficulty of finding the person to whom they needed to serve the notice of appeal within a limited time frame.²⁵ To remedy this issue, HB 1405 sought to require local governments to designate a local government employee to receive notice in a location that is open at normal business hours and located within the county or city.²⁶

Thus, Representative Roberts—in consultation with the Association for County Governments, the Georgia Municipal Association, the Georgia Realtors Association, and fellow legislators—introduced HB 1405 to clarify the distinction between legislative and quasi-judicial jurisdiction; establish that all legislative land use decisions may be challenged in superior court by de novo review; ease the unnecessarily heavy burden of preparing for zoning decision hearings; and create a reliable and accessible method for localities to receive notices of appeal.²⁷

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Bill Tracking of HB 1405

Consideration and Passage by House

Representative Shea Roberts (D-52nd) sponsored HB 1405 in the House with Representative Dale Washburn (R-141st), Representative Clint Crowe (R-110th), Representative David Dreyer (D-59th), Representative Miriam Paris (D-142nd), and Representative Marvin Lim (D-99th) cosponsoring.²⁸ The House first read the bill on February 22, 2022, and read it for a second time on February 24, 2022.²⁹

The House Governmental Affairs Committee favorably reported the bill by substitute on March 3, 2022.³⁰ The substitute added language to specify the Act's effective date and applicability and removed repetitive language regarding the process for serving an elected official or his or her designee when appealing a quasi-judicial decision.³¹ The substitute also removed duplicative language that required the applicant for a zoning or a quasi-judicial decision to be a named defendant in the action.³²

The House read the bill for a third time on March 15, 2022.³³ On that same day, the House adopted the Committee substitute and passed the bill by a vote of 160 to 1.³⁴

Consideration and Passage by Senate

Senator Elena Parent (D-42nd) sponsored the bill in the Senate.³⁵ The Senate read the bill on March 16, 2022, and the Senate referred it to the Senate Judiciary Committee on that same day.³⁶

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The Committee favorably reported the bill by substitute on March 25, 2022.³⁷ The substitute incorporated language to require local governments to make printed copies of the quasi-judicial decision-making standards available for the general public.³⁸ Additionally, the substitute specified that a de novo review of zoning decisions "brings up the whole record from the local government" and allows for "all competent evidence [to] be admissible in the trial."³⁹ It also codified the standard for overcoming a zoning decision by "showing by clear and convincing evidence that the zoning classification is a significant detriment to the petitioner and is insubstantially related to the public health, safety, morality, or general welfare" to overcome "the presumption that a governmental zoning decision is valid."⁴⁰ Furthermore, the substitute clarified that quasi-judicial decisions must be in compliance with Title 5 of the Georgia Code.⁴¹

The Senate read the bill a second time on March 28, 2022.⁴² The Senate tabled the bill on April 1, 2022, and the bill was taken from the table in the Senate on April 4, 2022.⁴³

On April 4, 2022, the Senate read the bill for a third time.⁴⁴ On that same day, Senator Parent and Senator Brian Strickland (R-17th) introduced the first floor amendment to the bill, and Senator Parent and Senator Max Burns (R-23rd) introduced the second floor amendment to the bill.⁴⁵ The first amendment clarified that a petitioner challenging a zoning decision can "substantively" overcome the presumption that the zoning decision is valid with "clear and convincing evidence that the...