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)
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Please note: The Winter 2021 Conference has been cancelled. We will have our Summer 2021 Conference in August with an additional day of training added to the typical schedule.