Georgia Planning Association 2010 Spring Conference

March 25, 2010

LAW SESSION

 

BY

FRANK E. JENKINS, III

JENKINS, OLSON & BOWEN, P.C.
fjenkins@JOandB.com

15 South Public Square
Cartersville, Georgia  30120
(770) 387-1373


24 Drayton Street

Suite 1000
Savannah, Georgia  31401
(912) 443-4061

I.         UNDERSTANDING THE LEGAL EFFECT OF COMPREHENSIVE LAND USE PLANS AND FUTURE LAND USE MAPS

1.         Moore v. Maloney, 253 Ga. 504, 321 S.E.2d 335 (1984).

Where a local government’s ordinances require consistency between its zoning ordinance and its comprehensive land use plan, it may not rezone property to a land use that is not in accord with the future land use map.
2.        City of Atlanta v. Tap Associates, L.P., 273 Ga. 681, 544 S.E.2d 433 (2001).

Consistency of the comprehensive land use plan may be used as a guide in support of zoning decisions when challenged in court.

II.       KEY CONSTITUTIONAL ISSUES IN SIGN ORDINANCE REGULATION

1.         Union City Board of Zoning Appeals et al. v. Justice Outdoor Displays, Inc., 266 Ga. 393, 467 S.E.2d 875 (1996).

In a multifaceted challenge to the Union City sign ordinance, the court made the following holdings, among others:

1)         The city’s sign ordinance which distinguishes between “off-premise signs” and “on-premise signs” violates the First Amendment to the United States Constitution and the Free Speech Clause of the Georgia Constitution.  Since the city restricts the content of a sign based upon its location, it will not survive strict scrutiny.  The city effectively prohibits signs bearing non-commercial messages in zoning districts where a sign of the same size and structure may display commercial messages.

2)        The city’s sign ordinance is also unconstitutional to the extent that it limits the messages on specific categories of signs, which are principal identification signs, marketing signs, construction signs, instructional signs, real estate directional signs, real estate signs, and special event signs.  The effect of the ordinance was to limit the message of certain signs to those identifying the type of sign that may be used.

3)        The ordinance provisions which restrict signs in residential zoning districts to on-premise signs and certain temporary or special signs, such as political signs, are likewise unconstitutional.  The court reasoned that the ordinance prohibits vital expression through the unique medium of residential signs without providing a viable alternative.

4)        The city’s time limitation on political signs during a period of six weeks prior to and one week after an election is likewise unconstitutional.  Since the ordinance does not place time limits that a resident may post a sign selling his house, for example, restrictions on political signs are necessarily content based and unconstitutionally restricted.

2.        Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250 (2005).

Neptune Beach’s sign code violated the First Amendment in two ways:  it exempted from regulation certain categories of signs based on their content without compelling justification for the differential treatment, and it contained no time limits for responding to applications for sign permits.
An example of the types of signs exempt from the regulations and thus not requiring a permit are 1) flags and insignia of any government, religious, charitable, fraternal or other organizations; 2) signs on private premises directing and guiding traffic and parking on private property; 3) and holiday lights and decorations.  Thus, the city’s sign code discriminates against certain types of speech (signs) based on content.  It exempts from regulation some categories of signs based on content, but does not exempt others based on content.  Generally, laws that distinguish favored speech from unfavored speech on the basis of the ideas or views expressed are content based.  A content-neutral ordinance applies equally to all and not just those with a particular message or subject matter in mind.  But where the city exempts certain signs based upon the content or message within, the sign is not content neutral.

Where the sign code is a content based restriction on speech, to be constitutional it must serve a compelling state interest and be narrowly drawn to achieve that end.  The city’s sign ordinance was based on general purposes of aesthetics and traffic safety, but these reasons are not “compelling government interests” for purposes of First Amendment analysis.  Moreover, the sign code’s exemptions are not narrowly tailored to achieve the city’s traffic safety or aesthetic goals.  The code thus is not justified by a compelling government purpose and therefore fails to survive strict scrutiny required under First Amendment analysis.

The ordinance is also unconstitutional because it fails to impose time limits for permitting decisions and thus is an invalid prior restraint on speech.  To satisfy time limit requirements, an ordinance must insure that permitting decisions are made within a specified time period.  But here the city’s sign code contains no time limits on permitting and therefore is an unconstitutional restraint on speech for that reason.

3.        Tinsley Media, LLC v. Pickens County, Georgia, United States Court of Appeals, Eleventh Circuit, decided October 12, 2006.

Plaintiff filed eleven applications with the county for permission to erect billboards, which were prohibited under the existing sign ordinance.  The applications were denied, and the plaintiff filed suit claiming several provisions of the county’s sign ordinance violated the U.S. and Georgia Constitutions.

Regulations that restrict expression of protected speech are analyzed under a four-part analysis, as follows:  (1) commercial speech is protected “only if that speech concerns lawful activity and is not misleading;” (2) a restriction is valid if it seeks to implement a substantial government interest; (3) the restriction directly advances that interest; and (4) it reaches no further than necessary to accomplish the given objective.

The court found that the county’s ordinance contained no statement of purpose at all.  Without a statement of purpose, according to the court, the statute cannot satisfy the “substantial government interest” requirement under federal law.

In its decision, the court pointed out other constitutional requirements in a sign ordinance.  The ordinance must contain standards for approval, a time limit for granting or denying a permit, and procedures for appeal.  If a sign ordinance lacks any of these provisions, it is subject to challenge that it is unconstitutional.

III.      HOW TO SATISFY THE REQUIREMENTS OF THE ZONING PROCEDURES LAW

1.         Definitions

1)         ZONING means the power of local governments to provide within their respective territorial boundaries for the zoning or districting of property for various uses and the prohibition of other or different uses within such zones or districts and for the regulation of development and the improvement of real estate within such zones or districts in accordance with the uses of property for which such zones or districts were established.  O.C.G.A. § 36-66-3(3)

2) ZONING ORDINANCE means an ordinance or resolution of a local government establishing procedures and zones or districts within its respective territorial boundaries which regulate the uses and development standards of property within such zones or districts.  The term also includes the zoning map adopted in conjunction with a zoning ordinance which shows the zones and districts and zoning classifications of property therein.  O.C.G.A. § 36-66-3(5)

3) ZONING DECISION means final legislative action by a local government which results in:
(A)      The adoption of a zoning ordinance;
(B)      The adoption of an amendment to a zoning ordinance which changes the text of the zoning ordinance;
(C)       The adoption of an amendment to a zoning ordinance which rezones property from one zoning classification to another;
(D)      The adoption of an amendment to a zoning ordinance by a municipal local government which zones property to be annexed into the municipality; or
(E)       The grant of a permit relating to a special use of property.
O.C.G.A. § 36-66-3(4)

2.        Notice of Public Hearing

1)        Application for Rezoning by Property Owner

    1. Notice published in a newspaper of general circulation within the territorial limits of the jurisdiction at least 15 days, but not more than 45 days, prior to the hearings.
    2. The notice must state the time, place and purpose of the hearing.
    3. Notice shall include location of the property, the present zoning classification of the property, and the proposed zoning classification of the property.
    4. A sign placed in a conspicuous location on the property containing information required by the zoning ordinance not less than 15 days prior to the date of the hearing.

    O.C.G.A. §36-66-4(b)

2)        C & H Development, LLC v. Franklin County, 294 Ga.App. 792, 670 S.E.2d 491 (2008).
The county’s approval of the permit following the hearing is invalid, since the county failed to strictly comply with the Zoning Procedures Law’s publication of notice requirements.

3.        Notice of Zoning Hearing


1)         Application by City Council or Board of Commissioners

    1. Notice published in a newspaper of general circulation within the territorial limits of the jurisdiction at least 15 days, but not more than 45 days, prior to the hearings.
    2. The notice must state the time, place and purpose of the hearing.

    O.C.G.A. §36-66-4(a)

4.        Public Hearing Procedures


1)         Local governments shall adopt policies and procedures which govern calling and conducting hearings required by Code Section 36-66-4, and printed copies of such policies and procedures shall be available for distribution to the general public.

2)        A local government is required to give equal time to both proponents and opponents of the zoning application.  In addition, the written procedures must state that each side shall have no less than 10 minutes.  O.C.G.A. §36-66-5(a)

5.        Public Hearing on Public Hearing Procedures

1)         The policies and procedures which govern calling and conducting a public
hearing may be included in and adopted as part of the zoning ordinance.  But prior to adoption of any zoning ordinance, a local government is required to conduct a public hearing on the policies and procedures for conducting public hearings.

2)        Notices of a public hearing for adopting policies and procedures shall be the same as for adoption of a zoning ordinance.

6.        Zoning Standards

1)         In addition to policies and procedures required by subsection (a) of this Code section, each local government shall adopt standards governing the exercise of the zoning power, and such standards may include any factors which the local government finds relevant in balancing the interest in promoting the public health, safety, morality, or general welfare against the right to the unrestricted use of property.   Such standards shall be printed and copies thereof shall be available for distribution to the general public.  O.C.G.A. §36-66-5(b)

7.         Public Hearing for Adoption of Standards

1)         Standards to be adopted by a local government may be included in and adopted as part of the zoning ordinance.  But before its adoption, a local government is required to conduct a public hearing on the proposed standards.  Notices relating to public hearings for adoption of zoning standards shall be advertised and conducted in the same manner as public hearings for adoption of a zoning ordinance.

IV.      HOW TO MAKE SURE CONDITIONAL ZONING IS ENFORCEABLE

Cherokee County et al., v. Martin, 253 Ga.App. 395, 559 S.E.2d 138 (2002).

Cherokee County rezoned Martin’s property to a PUD classification based on a site plan which showed that a portion of the property would be used as an “assisted living” facility.  But Cherokee County in the adopting ordinance approving the rezoning did not stipulate that the rezoning must comply with the site plan.  Later Martin decided to build an apartment complex instead of an “assisted living” facility, but the county refused to issue a permit although both uses were permitted in the zoning district.  Thereafter, Martin sued Cherokee County contending he had the right to build the apartment complex. 
Finding in favor of Martin and his right to build the apartment complex, the court resolved that there was no language within the rezoning resolution adopted by the county which referenced conditions or required Martin to abide by the particular use specified in his site plan.  The court reasoned that since a zoning ordinance restricts an owner’s right to freely use his property, it must be strictly construed in favor of the property owner and never construed beyond its explicit terms.  Furthermore, a court may not infer that the zoning of property is conditioned to a particular use, but should require that any conditions be expressly made a part of the rezoning resolution.  “Rezoning is conditional only if the conditions are set forth in the rezoning resolution itself or if an examiner of the resolution would be alerted to the existence of such conditions.” (at p. 397)

V. LEGISLATIVE VERSUS ADMINISTRATIVE DECISION-MAKING

  1. Legislative Hearings
    1. A rezoning applicant has 30 days from a final decision to appeal to the Superior Court.
    2. On appeal to the Superior Court, new evidence may be presented to the

1)         Set up procedures for calling and conducting of the hearing as required by
O.C.G.A. §36-66-5(a).

2)        Give the required notice under the Zoning Procedures Law,
O.C.G.A. §36-66-4.

3)        Copy the entire zoning file for each application to be considered at the
public hearing and distribute one copy to each planning commission member or elected official at least 72 hours before the hearing.

4)        Record the public hearing, either by a tape recorder or a court reporter.  If
the case is appealed, prepare a transcript.

5)         Prepare an agenda before the meeting listing all the applications with a
description of each and provide the order in which they will be considered by the hearing board.  A copy should be available for all attendees.

6)        Prepare a copy of the procedures for distribution to the attendees as
required by O.C.G.A. §36-66-5(a).

7)         Have the official zoning map and the future land use plan present during the public hearing.

8)        Have a professional staff member give a report and make a recommendation to the hearing board.

9)        A motion respecting the decision of the hearing board should be stated clearly.  Especially, this is true in the case of conditions which apply to a rezoning.

10)      The Planning Commission is not required to make findings, but it may do so in accordance with the standards previously adopted by the local governing authority.

Note:

Superior Court, even though not presented to the local government.

  • Administrative Hearings
    1. On appeal, the Superior Court only reviews the record of the hearing before the local government; no new evidence is presented.
    2. Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995)

1)         Provide the required notice of the hearing as set forth in the local ordinance.

2)        Establish written procedures for conduct of the hearing and provide a copy to all attendees.
The recommended procedures are as follows:
(A)      Allow the applicant to make the first presentation.
(B)      Provide for witness testimony.
(C)       Allow for cross-examination by interested parties (require interested parties to be represented by someone).
(D)      Allow interested parties to introduce evidence.
(E)       Allow cross-examination of the interested parties by applicant.
(F)       Require that all documents be marked as exhibits.
(G)      Upon conclusion of the hearing for each application, make a decision.
(H)      Reduce all decisions to writing.

3)        Prepare a record or file for each application which should include the application and any documents introduced or provided as exhibits and the transcript of the hearing.  It is especially important that this be prepared in the event of an appeal.

4)        Have a professional staff member explain the case to the Board.  Allow him or her to be examined as appropriate by the applicant or interested parties.  The professional staff may make a recommendation of a desired result, but it is not required.

5)         Provide the same file to the applicant as is provided to each board member.  Make sure each board member has a copy of the file prior to the hearing.  Make the file available to the parties interested upon request.

6)        Have the official zoning map and future land use plan present at the hearing for use by anyone at the hearing.

7)         Record the public hearing, either by a tape recorder or a court reporter.  If the case is appealed, prepare a transcript.

Note:

Key Case on Procedures for Administrative Hearings

VI.      CONDITIONAL USE PERMITS

1.         Jackson County v. Earth Resources, Inc., 280 Ga. 389, 627 S.E.2d 569 (2006).

In reviewing a decision by a local government in either granting or denying a conditional use permit, the court is bound to uphold the decision of the local government where there is any evidence supporting its decision.  The court in this case found that the local government’s denial of a conditional use permit to develop a construction and demolition landfill was supported by the evidence where there was more than merely “generalized fears” presented by neighboring property owners.  Evidence of specific concerns was raised as to truck traffic to and from the site of the landfill.  Moreover, the project was not consistent with a comprehensive land use plan which called for mid-density residential use, an appraiser opined as to a negative effect on surrounding land values, and the property owner’s representations concerning ground water contamination were rebutted.  The Jackson County Zoning Ordinance granted discretion to the county on whether to grant or deny a conditional use permit.  It provided in Sec.13-60 that “[t]he conditional use would be consistent with the needs of the neighborhood or the community as a whole, be compatible with the neighborhood and would not be in conflict with the overall objective of the comprehensive plan.”  Because of discretion given to the county, it may consider various factors in determining whether a conditional use permit would meet these criteria.  For these reasons, the court upheld the county’s denial of the conditional use permit.

2.        City of Roswell v. Fellowship Christian School, Inc., 281 Ga. 767,
642 S.E.2d 824 (2007).

Fellowship Christian School (FCS) applied to Roswell for a conditional use permit to construct several new buildings including a 1500-seat football stadium.  After considering the evidence, the city approved the permit for the buildings, but did not approve the stadium.

In its decision, the Supreme Court upheld the decision of the city to deny the stadium.  It reasoned that the city’s conditional use permit ordinances granted the city discretion on acting on an application rather than mandating approval of the application as a matter of right.  Only if the city was guilty of a gross abuse of discretion would the denial of the permit be reversed.  The court also concluded that if there is “any evidence” to support the city’s decision, it must be upheld.

The evidence presented to the city showed that there already existed two stadiums at other high schools within one mile of FCS’s property.  FCS’s own traffic study showed that simultaneous varsity football games create the potential for multiple athletic events along the road.  The evidence showed that two or three simultaneous events along the two-lane road would create severe traffic congestion following a football game.

The court found that traffic congestion is a valid consideration in regulation of land use, and since the evidence showed that FCS’s proposed stadium would exacerbate an already existing traffic problem, that it was reasonable for the city to deny the application for a permit to construct the stadium.  According to the court, “preserving the character of an existing neighborhood is a legitimate purpose of zoning and planning.”

Since the evidence showed a rational basis for the denial of the permit for the stadium, the court rejected FCS’s contention that it was denied equal protection.