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)