Zoning and Land Use Law

• Jurisdiction: United States,Federal,Georgia
• Publication year: 2021
• Citation: Vol. 73 No. 1

Zoning and Land Use Law

Newton M. Galloway

Steven L. Jones

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Zoning and Land Use Law

Newton M. Galloway^*

Steven L. Jones^**

The COVID-19 pandemic dramatically affected the world's economy and supply chains during this Survey period.¹ However, real estate development did not cease. In many urban and suburban areas, including the metropolitan Atlanta area, new development projects rose from the ground, despite the economic risks and challenges created by the pandemic. Nevertheless, the long-term impacts of the pandemic may fundamentally challenge many paradigms that have long sustained successful real estate development.

Prior to the pandemic, commercial retail developments, such as malls and destination shopping centers, were already in the economic doldrums due to the rise of e-commerce and their economic vitality diminished further as a result of the pandemic. The pandemic forced people to stay home for work and leisure. Employees utilized technology to work as efficiently from their homes as they had previously done from their offices, with the result that business continued despite the pandemic. While working from home, the same employees shopped online for everything, from cars to groceries. As a direct result of the pandemic, technology provided the means for society to learn how to work and shop without having to travel to traditional brick-and-mortar structures to do either. Eventually, these employees drove residential development

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further from metropolitan centers, in what is becoming the "work from home" sprawl.

The impact of these developments is not yet fully known. But, it is likely that the pandemic will cause fundamental and lasting changes in all development that society will want or need in the future. Likely, new residential development (and the commercial development that will follow it) will drive industrial development and office redevelopment. These changes will impact future zoning policies and the ordinances local governments pass to implement them. These changes will also create new zoning issues that will arise in future Survey periods.

Despite the pandemic, litigation continued, albeit without any of the in-person components, some of which may never return. The case decisions, and constitutional and statutory amendments, during the Survey period fall into four categories:

1. Those questioning whether officials making zoning decisions are protected from suit in their individual or official capacities by sovereign and legislative immunity after Lathrop v. Deal,² particularly after Georgia voters ratified a constitutional amendment adding Georgia Constitution of 1983, Article I, Section II, Paragraph V(b), which waives sovereign immunity in response to Lathrop and its progeny;³

2. Those continuing the transformation of local government zoning decisions from legislative acts into quasi-judicial decisions, which require appeal by petition for writ of certiorari and which superior courts review under the "any evidence" standard rather than the de novo review applied to legislate decisions;

3. Those refining Diversified Holdings, LLP v. City of Suwanee;⁴ and 4. The enactment of section 32-3-3.2 of the Official Code of Georgia Annotated, which blurs previously clear lines between (i) who pays for consequential damages arising from condemnation of real property; and (ii) the legislature's generations-old delegation of plenary zoning power to local government.⁵

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This Article will review decisions and amendments in all of these categories, addressing those involving sovereign immunity first.⁶

I. Immunity Issues and Developments

A. Sovereign Immunity Constitutional Amendment

In Lathrop (discussed in prior years' Surveys), a super-majority of the Georgia supreme Court held that sovereign immunity extends to constitutionally-based claims barring all causes of action against the state "including suits for injunctive and declaratory relief from the enforcement of allegedly unconstitutional laws" and bars actions against local government officials acting within the authority of their official capacities.⁷

Applied to a zoning case, Lathrop bars actions against city and county officials acting within the authority of their official positions, but it allows a claim to proceed against officials in their individual capacities.⁸ The supreme court in Lathrop reiterated that only the legislature or constitutional amendment may waive sovereign immunity.⁹ The legislature responded in 2019 when both chambers of the Georgia General Assembly passed House Bill 311¹⁰ with zero "nay" votes.¹¹ HB

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311 approved a waiver of sovereign immunity for any claim seeking declaratory or injunctive relief in an action against a state or local government official or employee, in their official capacity, challenging enforcement of an unconstitutional state statute or an unconstitutional or illegal local government ordinance or action.¹²

HB 311's waiver of sovereign immunity would have permitted claims such as those in Lathrop, and others, which plaintiffs typically assert in a zoning case against local government officials when the application of a zoning ordinance or zoning decision allegedly exceeds the officials' authority or violates the property owner's constitutional rights. With a number of caveats, HB 311 would have permitted Georgia citizens to challenge the unconstitutionality of zoning regulations and decisions by seeking declaratory or injunctive relief against state and local government officials in their official capacities.¹³ But, Governor Kemp vetoed HB 311.¹⁴

In response to that veto, during the 2020 legislative session, the General Assembly authorized a referendum, permitting Georgia voters to decide whether the state's constitution should be amended to waive sovereign immunity to permit causes of action Lathrop and its progeny otherwise barred.¹⁵ In the November 2020 election cycle, the state's electorate ratified a constitutional amendment (the Constitutional Amendment) creating subsection (b) to Article I, Section II, Paragraph V of the 1983 Constitution of the State of Georgia.¹⁶ The new amendment provides as follows:

(1) Sovereign immunity is hereby waived for actions in the superior court seeking declaratory relief from acts of the state or any agency, authority, branch, board, bureau, commission, department, office, or public corporation of this state or officer or employee thereof or any county, consolidated government, or municipality of this state or officer or employee thereof outside the scope of lawful authority or in violation of the laws or the Constitution of this state or the Constitution of the United States. Sovereign immunity is further waived so that a court awarding declaratory relief pursuant to this

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Paragraph may, only after awarding declaratory relief, enjoin such acts to enforce its judgment. Such waiver of sovereign immunity under this Paragraph shall apply to past, current, and prospective acts which occur on or after January 1, 2021.

(2) Actions filed pursuant to this Paragraph against this state or any agency, authority, branch, board, bureau, commission, department, office, or public corporation of this state or officer or employee thereof shall be brought exclusively against the state and in the name of the State of Georgia. Actions filed pursuant to this Paragraph against any county, consolidated government, or municipality of the state or officer or employee thereof shall be brought exclusively against such county, consolidated government, or municipality and in the name of such county, consolidated government, or municipality. Actions filed pursuant to this Paragraph naming as a defendant any individual, officer, or entity other than as expressly authorized under this Paragraph shall be dismissed.

(3) Unless otherwise provided herein, this Paragraph shall not affect the power or duty of a court to dismiss any action or deny relief based on any other appropriate legal or equitable ground or other limitation on judicial review, including, but not limited to, administrative exhaustion requirements, ante litem notice requirements, sanctions for frivolous petitions, standing, statutes of limitation and repose, and venue. The General Assembly by an Act may limit the power or duty of a court under this Paragraph to dismiss any action or deny relief.

(4) No damages, attorney's fees, or costs of litigation shall be awarded in an action filed pursuant to this Paragraph, unless specifically authorized by Act of the General Assembly.

(5) This Paragraph shall not limit the power of the General Assembly to further waive the immunity provided in Article I, Section II, Paragraph IX and Article IX, Section II, Paragraph IX. This Paragraph shall not constitute a waiver of any immunity provided to this state or any agency, authority, branch, board, bureau, commission, department, office, or public corporation of this state or officer or employee thereof or any county, consolidated government, or municipality of this state or officer or employee thereof by the Constitution of the United States.¹⁷

Like most new laws, the constitutional amendment creates many new questions. Foremost, if a complaint names one or more local (or state) government officers or employees—in any capacity, individual, official,

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or both—and asserts claims other than (but in addition to) claims for declaratory judgment and injunctive relief, is the entire case subject to dismissal or are only the officials (in all capacities) subject to dismissal with respect to only the claims for declaratory judgment and injunctive relief? Either way, can a plaintiff avoid dismissal if the complaint makes it clear that the claims for declaratory judgment and injunctive relief are asserted solely against the local government, pursuant to the Constitutional Amendment?

Additionally, zoning applicants on appeal often assert a claim for attorney's fees, although such...