Zoning 102

Presentation by David Kirk, FAICP

August 2014

 

Significant cases affecting Property Rights:

- Mr. Lucas' Beachfront Lots in South Carolina (Lucas taking)

- Loretto Apartment House in NYC (Compensation for running private cable lines)

 

Police Power

- Sovereign power of the state to regulate and control private behavior to protect and promote the greater public welfare

- Protection of health, safety, morals, property values, convenience, and general welfare

- Must be delegated by state to counties and municipalities

 

Review of Zoning Decisions

- Challenge to zoning must be filed within 30 days of final decision (Village Centers Inc v. Dekalb County 1981) (Fortson v. Tucker 2011)

- Challenge to rezoning decision is a de novo proceeding (Walton County v. Scenic Hills Estates Inc 1991)

 

Review of Quasi-Judicial Decisions

- Challenge to admin / quasi-judicial decisions (variances) is judicial review "on the record" (Jackson v. Spalding County 1995)

 

Preservation of Rights

- Landowner making constitutional attack on ordinance must do so before local governing body (Shockley v. Fayette County 1990)

 

Factors for Judicial Review of Zoning Decisions

- Validity of zoning ordinance determined by specific facts and relevant "general lines of inquiry" based on evidence presented (Guhl v. Holcomb Bridge Rd Corp 1977)

- Guhl factors

     - Existing uses and zoning of nearby property

     - Extent to which property values are diminished by the particular zoning restrictions

     - Extent to which the destruction of property values of the plaintiff promotes the health, safety, morals, or general welfare of the public

     - Relative gain to the public compared to the hardship imposed upon the individual property owner

     - Suitability of the subject property for the zoned purpose

     - Length of time the property has been vacant as zoned, considered in the context of land development in the vicinity of the property

 

Standing to Challenge Zoning Decisions

- Civic associations alone do not have standing to challenge zoning decision (Dekalb County Board of Commissioners v. Druid Hills Civic Association 1998)

- Citizens challenging zoning decision must meet "substantial interest - aggrieved citizen test" (Massey v. Butts County 2006)

 

Vested Rights - Zoning Application

- A property application vests right to consideration of such application under the ordinance in existence at the time of filing (Recycle & Recover Inc. v. Georgia Board of Natural Resources 1996)