Zoning and Land Use
| Publication year | 2022 |
Zoning and Land Use
Newton M. Galloway
Steven L. Jones
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Since 2017,1 this Georgia Survey of zoning law has annually chronicled judicial decisions transforming legislative zoning decisions into quasi-judicial actions, starting with City of Cumming v. Flowers,2 which held that a local government decision on a variance is quasi-judicial and may only be appealed by writ of certiorari.3 Subsequently, the Georgia Court of Appeals in York v. Athens College of Ministry4 held that consideration of a special/conditional use permit is also a quasi-judicial decision, thus extending the holding of City of Cumming.5 Though the appeal of a zoning decision has traditionally been de novo, York prohibited parties from raising, for the first time, issues in superior court
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that were not presented to the local government during the hearing on the application for a quasi-judicial decision.6 York applied the "any evidence" standard of review for factual issues—akin to that under the Georgia Administrative Procedure Act7 —to appeals of local government zoning decisions.8
Decisions in cases that followed moved the transformation forward, but no opinion crossed the Rubicon to finally hold that a local government's decision on a rezoning application is a quasi-judicial, rather than legislative, decision.9 Last year's survey noted that "[t]he question of whether Georgia's appellate courts will hold that the approval or denial of a rezoning application is a quasi-judicial decision will have to wait."10 No definitive opinion was issued in the current Survey period. The issue of whether a legislative rezoning decision will be transformed into a quasi-judicial decision remains unresolved, but an amendment to Georgia's Zoning Procedures Law (ZPL) provides some clarity.11
Significant developments in Georgia zoning law during this Survey period came from legislative bodies—state and local—rather than the courts. The Georgia General Assembly enacted significant revisions to ZPL,12 which will impact all local government zoning decisions prospectively.13 The legislature also enacted the Superior and State Court Appellate Practice Act (SSAPA) to be codified at Official Code of Georgia Annotated title 5, chapter 314 and replace the arcane and antiquated writ of certiorari to superior court appeal procedure. The new appeal procedure set forth in ZPL and SSAPA may render the issue of whether a rezoning decision is legislative or quasi-judicial moot.
Additionally, in local legislation, the City of Atlanta (Atlanta), following legislative precedents in Oregon15 and California,16 proposed zoning ordinance amendments to substantially change the traditional bedrock of residential zoning: single-family residential zoning districts.17 Ostensibly to promote workforce housing affordability and housing diversity, Atlanta proposed ordinances to increase residential density in
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urban areas located near transit stations and allow additional dwellings on lots zoned only for single-family dwellings, as a matter of right.18 Simultaneously, rezoning actions were initiated to eliminate certain single-family zoning districts in prime Atlanta neighborhoods—Midtown and Ansley Park among them.19
The Georgia legislature responded with provisions in the amendment to ZPL to support single-family zoning districts and make it harder for local governments to change their character.20 Specifically, it imposed significant additional procedural restrictions and delayed local governments' consideration of dramatic changes to or elimination of traditional single-family zoning districts.21
Though not as significant in this Survey period, recent court opinions are also reviewed in this Article.
In the 2021-2022 legislative cycle, the Georgia General Assembly enacted House Bill (H.B.) 1405,22 which overhauled ZPL. H.B. 1405 resolved many issues addressed in this Article during prior survey periods. However, H.B. 1405 also left many questions unanswered and created a few more questions.
During the Survey period, the General Assembly also enacted H.B. 916,23 the SSAPA, which repealed the archaic Chapters Three and Four under Title Five of the Official Code of Georgia Annotated: the writ of certiorari to superior court24 and appeals to superior and state court scheme.25 The SSAPA replaced them with a new chapter and scheme for appeals to Georgia's superior and state courts.26 The SSAPA is not effective until July 1, 2023.27 Until then, appeals will continue to proceed under the old appellate scheme.
A. Overhaul of Georgia's Zoning Procedures Law
The purpose of ZPL is to establish minimum procedures governing
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local governments' exercise of their zoning powers within their respective territorial boundaries and provide due process to the general public in relation to the regulation of property by local governments.28 H.B. 1405 seeks to establish and clarify the "means of judicial review of the exercise of [local governments' zoning] power" based on whether the power exercised was legislative or quasi-judicial.29 Prior to H.B. 1405, ZPL did not establish minimum procedures for or limitations on the quasi-judicial zoning powers of local governments or define or recognize the existence of quasi-judicial agencies. Instead, its definitional provision purported only to regulate legislative zoning decisions.30 Nonetheless, as discussed in prior surveys, the line between quasi-judicial and legislative decision, as well as the appellate path for each, was—and may still be—very blurred.
ZPL, now, as amended by H.B. 1405, defines a "quasi-judicial officer[], board[], or agenc[y]" as:
an officer, board, or agency appointed by a local government to exercise delegated, quasi-judicial zoning powers including hearing appeals of administrative decisions by such officers, boards, or agencies and hearing and rendering decisions on applications for variances, special administrative permits, special exceptions, conditional use permits, or other similar permits not enumerated herein as a zoning decision, pursuant to standards for the exercise of such quasi-judicial authority adopted by a local government.31
As ZPL always did for legislative decisions, H.B. 1405 also requires local governments to adopt policies and procedures governing hearings on quasi-judicial decisions.32
Further refining definitions, H.B. 1405 clarifies that the definition of "zoning decision" includes the adoption and now the repeal of a zoning ordinance.33 Additionally, the definition of "zoning decision" also includes the adoption and now the denial of: a rezoning request (including one related to property to be annexed by a municipality); "a permit relating to a special use of property"; and a variance "or conditions" heard
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"concurrent and in conjunction with" a rezoning or special use permit.34 Previously, it was questionable whether a denial of a rezoning request or "a permit relating to a special use of property" was a zoning decision.
This new definition creates new uncertainty because a variance traditionally has been quasi-judicial, but now, if it is heard "concurrently and in conjunction" with a zoning decision, it is, by statute, legislative. Courts will have to decide when a variance is heard in such circumstances. For instance, if applications for a rezoning or special use permit and a concurrent variance are filed simultaneously, but the local government decides them at different times because one application is tabled or an inferior board is vested with the power to decide the variance, has the variance been decided concurrent with the zoning decision so as to make the decision on the variance legislative? Additionally, if a concurrent variance is legislative, can it be heard by a "quasi-judicial officer[], board[], or agenc[y]" because a governing authority cannot delegate its legislative power? H.B. 1405 also left open the question, discussed in previous surveys, of the definition or scope of "a permit relating to a special use of property," which ZPL has historically included within the definition of a legislative zoning decision, even though ZPL now, as amended, defines a quasi-judicial entity to include one that makes decisions on (among other things) special exceptions and conditional use permits. Finally, the statute leaves open whether a zoning decision includes a decision which zones property for the first time, as some local governments in Georgia remain without a zoning ordinance.
As discussed later in this Article, H.B. 1405 also creates certain special, minimum procedural requirements where: (1) "a proposed zoning decision relates to an amendment of the [local government's] zoning ordinance to revise one or more zoning classifications or definitions related to single-family residential uses of property so as to authorize multifamily uses of property . . ."; or (2) "grant blanket permission, under certain or all circumstances, for property owners to deviate from the existing zoning requirements of a single-family residential zoning."35 The minimum procedures require that within a period of twenty-one days, the zoning decision must "be adopted at two regular meetings of the local government making the zoning decision."36 Prior to the first regular meeting, there must be at least two public hearings regarding the
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proposed action. Those public hearings must be held three to nine months prior to the date of final action, and one of the hearings must occur between the hours of 5:00 PM and 8:00 PM.37 In addition to the public hearings, a notice must be posted on each affected property and published in a newspaper of general circulation in the territorial boundaries of the local government within fifteen to forty-five days of each hearing.38
As it always had for legislative zoning decisions, ZPL now requires local...
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