Zoning and Land Use Law
| Publication year | 2020 |
Zoning and Land Use Law
Newton M. Galloway
Steven L. Jones
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During the Survey period,1 the Supreme Court of the United States in Knick v. Township of Scott2 gave aggrieved property owners in Georgia a federal taking claim for inverse condemnation resulting from a zoning regulation that the Georgia Supreme Court had previously denied them under state law in Diversified Holdings, LLP v. City of Suwanee.3 The Georgia Court of Appeals further refined York v. Athens College of Ministry.4 Finally (on a note inseparable with zoning), the Georgia Supreme Court encountered a case defining the parameters of the Georgia Open Meetings Act.
During this Survey period, the most significant change in Georgia zoning and land use law comes from the Supreme Court of the United States in Knick v. Township of Scott,5 which changed the legal landscape governing inverse condemnation (i.e., regulatory taking) actions in Georgia. in Knick, the Supreme Court held that a property owner whose property has been taken through application of a regulation (zoning or otherwise) may bypass Georgia state courts and immediately pursue a
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damages claim in federal court under the Takings Clause of the Fifth Amendment to the Constitution of the United States6 pursuant to 42 U.S.C. § 1983.7 The expansion of property rights in Knick contrasts starkly with Diversified Holdings, in which the Georgia Supreme Court prohibited an analogous state-law taking claim resulting from inverse condemnation by zoning regulation.8 As a result, Knick's impact on Georgia law is properly analyzed in this Survey of Georgia zoning and land use law.
A. The Facts and Holding of Knick
The bucolic facts of Knick belie its legal significance. Rose Mary Knick owned ninety acres in Scott Township, Pennsylvania. She lived in a single-family home on the property, grazing horses and farm animals in her pastures. Located on Ms. Knick's property is a small cemetery where family members and neighbors were allegedly buried.9
In 2012, Scott Township passed an ordinance that required "[a]ll cemeteries . . . be kept open and accessible to the general public during daylight hours."10 The ordinance allowed code enforcement officers to enter Ms. Knick's property to identify the existence and location of a cemetery. In 2013, a code enforcement officer visited Ms. Knick, entered her property, and found several grave markers. Ms. Knick was cited for violation of the ordinance.11
Ms. Knick was not amused. Initially, she filed suit in state court seeking declaratory and injunctive relief, contending that the Scott Township cemetery ordinance "effected a taking of her property."12 This suit did not seek compensation for the taking of her property through an inverse condemnation claim, which was available to her under Pennsylvania law. While Ms. Knick's suit was pending, Scott Township (possibly recognizing its regulatory overreach) withdrew the violation notice. With the enforcement action terminated, the state court declined to rule on Ms. Knick's claims for injunctive and declaratory relief.13
Undeterred, Ms. Knick filed an action pursuant to 42 U.S.C. § 1983 in federal court alleging that the cemetery ordinance, as applied to her property, violated the Takings Clause of the Fifth Amendment.14 Citing
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Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City,15 the district court dismissed Ms. Knick's takings claim "because she had not [first] pursued an inverse condemnation action in state court."16 The Third Circuit Court of Appeals affirmed the district court.17 The Supreme Court granted certiorari to reconsider Williamson and determine whether "property owners must seek just compensation under state law in state court before bringing a federal taking claim under [Section] 1983."18
Based on the facts presented by Ms. Knick in support of her taking claim, the Supreme Court overruled, and decreed that "[c]ontrary to[,] Williamson County, a property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it."19 The Supreme Court went on to state that: "[t]he Fifth Amendment right to full compensation arises at the time of the taking, regardless of post-taking remedies that may be available to the property owner."20 The Supreme Court's conservative majority (quoting the dissent of liberal Justice William Brennan in San Diego Gas & Electric Company. v. San Diego21 ) explained that "'once there is a 'taking,' compensation must be awarded because ' [a]s soon as private property has been taken, whether through formal condemnation proceedings, occupancy, physical invasion, or regulation, the landowner has already suffered a constitutional violation.'"22 While compensation may remedy the taking later, the Court held that the constitutional violation occurs at the time of the taking, and it concluded that "because a taking without compensation violates the self-executing Fifth Amendment at the time of the taking, the property owner can bring a federal suit at that time."23 The property owner is not required to exhaust state remedies before seeking relief in federal court.24 Under Knick, a property owner with a
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valid taking claim is entitled to compensation as if it had been "'paid contemporaneously with the taking'—that is, the compensation must generally consist of the total value of the property when taken, plus interest from that time."25
B. Knick's Impact on Georgia Law
In Knick, the Supreme Court reached a legal conclusion diametrically opposed to the Georgia Supreme Court's recent decision in Diversified Holdings.26 The Georgia Supreme Court held in Diversified Holdings that a taking of property through inverse condemnation from a zoning regulation action cannot occur unless "the owner [is] completely deprived of the use of the property."27 It noted (citing supporting federal authorities) that a taking claim resulting from a zoning regulation is inconsistent with the theory of inverse condemnation and that "[u]nder a true takings challenge . . . , 'the focus of the takings analysis is on whether the government act takes property, not on whether the government has a good or bad reason for its action.'"28 Zoning, the Georgia Supreme Court continued, "does not ordinarily present the kind of affirmative public use at the expense of the property owner that effects a taking,"29 and it is "unlikely to be a fertile ground for inverse condemnation claims."30
To reach its decision, the court distinguished eminent domain from the exercise of the government's regulatory police power, such as zoning and land use restrictions.31 Though the same distinction was noted by the Supreme Court in Knick,32 the Georgia Supreme Court reached the opposite conclusion in Diversified Holdings.33 Under Georgia law, a takings claim is viable only when the government exercises the power of eminent domain, not when the taking results from a zoning regulation—although the plain text of the Just Compensation Clause of the Constitution of the State of Georgia34 indicates otherwise.35
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In Diversified Holdings, Georgia Supreme Court held:
The balance our law strikes is that a zoning classification that substantially burdens a property owner may be justified if it bears a substantial relation to the public health, safety, morality, or general welfare . . . . Lacking that kind of justification, the zoning may be set aside as arbitrary or capricious. If a land-use regulation is arbitrary and capricious then the regulation cannot stand. The remedies available in such cases include declaring the regulation unlawful as applied to the property at issue, although we've been clear that courts should give local governing bodies a reasonable opportunity to reconsider rezoning applications or otherwise take action to confirm their regulations to the law.36
As a result, under Diversified Holdings, a Georgia property owner's property cannot be "taken" by inverse condemnation from a zoning restriction, and the value of the property "taken" is not compensable by damages.37 The property owner must challenge the zoning regulation in court and prove that the regulation is a substantial burden on the property and not substantially related to the public health, safety, morality, or general welfare, or is arbitrary and capricious.38 If the property owner makes either showing, the zoning regulation will be declared unlawful, and the court will remand the case back to the zoning authority, which will be given the opportunity to cure the zoning regulation's arbitrariness and capriciousness.39
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When the holdings of Knick and Diversified Holdings are applied to the facts in Knick, the contradictory results are striking. in Knick, the regulation applied to Ms. Knick's property constituted a taking at the time of enactment, and she was entitled to damages for the taking and interest from that date.40 Under Diversified Holdings (if Ms. Knick's farm had been in Georgia), the zoning authority's zoning regulation could not have taken Ms. Knick's property. instead, she would have been required to prove in court that the zoning regulation failed one of the tests under Diversified Holdings. if her challenge succeeded, Ms. Knick's case would have been remanded to the zoning authority to correct the regulation, giving the zoning authority a "redo," while Ms. Knick remained uncompensated. These results could not be more different.
C. Choosing a Zoning Remedy and Forum under Knick
After the Knick opinion, significant speculation questioned its impact. initial reactions suggested that Knick will increase the amount of federal litigation involving local zoning issues as more regulatory taking claims are asserted alleging a broader range of possible takings.41 Even in states...
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