Zoning and Land Use Law

• Publication year: 2017

Zoning and Land Use Law

Newton M. Galloway

Steven L. Jones

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Zoning and Land Use Law

by Newton M. Galloway^*

and Steven L. Jones^**

This year and volume, the sixty-ninth, mark the phoenix flight of the Zoning and Land Use Law survey. The survey last appeared in the sixty-first volume¹ of the Mercer Law Review, just as the Great Recession was taking its toll on real estate development. The Great Recession shifted development activity away from constructing new buildings to protecting the value of investment in existing structures from the ravages of the landslide of foreclosures. At the height of the Great Recession, there was virtually no demand for new residential or commercial construction, and new construction and development ground to a halt. New commercial developments sat vacant. Thousands of recently platted residential subdivision lots were in foreclosure, with little or no chance of being developed.²

Local governments suffered huge revenue losses as income from building permits and impact fees dwindled to almost nothing. Local governments slashed their development and inspection personnel because revenues (usually generated by permit and impact fees) were insufficient to sustain them. Development-related businesses failed, and their employees, consulting engineers, and subcontractors suffered dire

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trickle-down economic consequences. With no new development, rezoning applications and development permit applications were unnecessary. Thus, there was no action to challenge. Except for foreclosure related issues, no development related litigation ensued.³

By late 2014, the Great Recession's damage was done. In certain geographic locales (largely urban and affluent), real estate development breathed new life. That trend continues today, and is evidenced by the many construction cranes towering above new development sites in Midtown Atlanta and Buckhead.

Though a large inventory of undeveloped property already approved for development remains, the number of new development proposals that require zoning review and approval is increasing almost everywhere. With new rezoning and development permit applications increasing and requiring more land use decisions, more judicial challenges are inevitable.⁴

As development ceased during the Great Recession, new justices and judges were elected or appointed to Georgia's appellate benches.⁵ Before the Great Recession, it was difficult to get Georgia appellate courts to accept a development-related case. An application for appeal, which the

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court could grant (or not) in its discretion, was required,⁶ irrespective of statutes that specifically authorize a direct appeal.⁷ Post-recession, new development issues raised in new cases will be heard largely by new justices and judges.⁸ This combination provides the opportunity for significant changes in Georgia's zoning and land use jurisprudence.

This Article reviews the first round of post-recession zoning and land use decisions of the new justices on the Georgia Supreme Court and judges on the Georgia Court of Appeals⁹ issued between June 1, 2015 and May 31, 2017.¹⁰

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I. Zoning Appeals—The Local Ordinance Appeal Procedure Does Not Matter¹¹

In City of Cumming v. Flowers,¹² the Georgia Supreme Court addressed the appropriate procedure to challenge an unfavorable zoning or land use decision by a local government.¹³ Though the court intended to implement a bright line rule setting the procedure to challenge a local government land use decision, Cumming actually raises as many questions as it answers. If applied broadly, Cumming is a very significant change in land use law.

In Cumming, the Board of Zoning Appeals (BZA) for the City of Cumming (the City) granted a developer a variance in accordance with the procedure required by the City's zoning ordinance. Neighboring homeowners filed a complaint in Forsyth County Superior Court challenging approval of the variance, seeking a writ of mandamus and injunctive relief against the City, the Mayor, the individual members of the City Council, and the "City Council and/or Members of the Board of Zoning Appeals"¹⁴ (collectively, the City) and the developer. The City moved to dismiss the complaint. The motion to dismiss was treated as a motion for summary judgment to permit the trial court to consider City ordinances governing zoning appeals that were attached to the motion. The City argued that BZA's decision granting the variance was a "quasi-judicial" act, which could only be judicially reviewed pursuant to a writ

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of certiorari.¹⁵ The court agreed, but its opinion goes beyond the appeal of the variance that was requested.¹⁶

The Georgia Constitution authorizes local governments to adopt plans and exercise the power of zoning.¹⁷ When a local government exercises its zoning power, its governing body is sitting as the local government's legislature performing a legislative, not judicial, act.¹⁸ The enactment of a zoning ordinance is legislative.¹⁹ The approval of a rezoning application, which amends the zoning ordinance and the zoning map with respect to a specific parcel, is also legislative.²⁰

In fact, Georgia Zoning Procedures Law (the ZPL)²¹ specifically identifies five actions that constitute "zoning decisions" which are (by definition) legislative acts:

The adoption of a zoning ordinance;

The adoption of an amendment to a zoning ordinance which changes the text of the zoning ordinance;

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The adoption of an amendment to a zoning ordinance which rezones property from one zoning classification to another;

The adoption of an amendment to a zoning ordinance by a municipal local government which zones property to be annexed into the municipality; or

The grant of a permit relating to a special use of property.²²

The local government must follow procedures set forth in the ZPL under section 36-66-4²³ of the Official Code of Georgia Annotated (O.C.G.A.) as it considers each of these five legislative zoning decisions.²⁴ Local governments cannot delegate zoning power,²⁵ and an inferior board cannot make a zoning decision.²⁶

In contrast, approval of a variance does not amend the local government's zoning ordinance, and it is not a legislative act.²⁷ A variance application does not seek rezoning, nor does approval change the land uses permitted within the zoning district.²⁸ The variance application asserts that strict application (usually of zoning district development criteria, such as lot width, road frontage, and setbacks) causes a hardship to property's reasonable economic development.²⁹ The variance application asks the local government to modify the zoning district's development requirements in a very limited case, specific only to the parcel identified in the variance application.³⁰ Since a variance is not a zoning decision, the local government may delegate authority to approve a variance to an inferior board, such as a Board of Zoning Appeals, as in Cumming.³¹ The variance applicant must prove that compliance with the zoning district's development criteria imposes a hardship on the property.³² The variance application is reviewed in light

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of criteria set forth in the zoning ordinance for variance approval.³³ Therefore, consideration of a variance application is a quasi-judicial, not legislative act.³⁴

Historically, the zoning ordinance sets forth the procedures and time limits for filing a challenge to a land use decision. It has long been accepted procedure to challenge a land use decision by following the procedures set forth in the zoning ordinance.³⁵ Appeal directives in a zoning ordinance generally state that an aggrieved party may appeal a final action to the county superior court within thirty days of the date on which the action was taken.³⁶

In the early 1990s, some zoning ordinances were amended to require that challenges to some land use decisions proceed to superior court by writ of certiorari.³⁷ The writ process was usually applied to challenge a variance decision. Text requiring appeal by writ of certiorari usually stated:

The decision of the Board of Zoning Appeals is a final decision; therefore, any appeal of such a decision shall be pursued by application for writ of certiorari filed with the Superior Court of Fulton County within 30 days of the date of the decision.³⁸

Writ procedures were immediately challenged when first introduced. In Jackson v. Spalding County,³⁹ the Georgia Supreme Court upheld the provision of a zoning ordinance that required a challenge to the denial of a variance to proceed by writ of certiorari.⁴⁰ The court affirmed that the local government had the authority to set forth the method of appeal in its zoning ordinance.⁴¹

The remedy sought when challenging a land use decision also impacts the procedure used. Very often, a land use decision challenge will include

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a petition for a writ of mandamus. Mandamus is appropriate when an official duty has not been "faithfully performed."⁴² A mandamus is often linked to a land use challenge because a permit application has been tendered (and probably denied) for a land use that the property owner contends is authorized as a matter of right. Mandamus is a remedy if a building official has wrongfully denied a permit for a use that is permitted in the zoning district.⁴³ As a litigation strategy, a rezoning application may be accompanied with a development permit application to test its denial by the building official. Mandamus would not be available in a variance or special use permit because the applicant has no clear legal right to the permit.⁴⁴ However, the mandamus action is totally separate and independent from an action challenging rezoning denial, even though it may arise from the same set of facts.⁴⁵

With this background, the significance of Cumming is apparent. The Georgia Supreme Court overruled Jackson in Cumming.⁴⁶ However, the scope of the decision in Cumming is problematic. Did the decision narrowly...