Making Good Zoning And Land Use Decisions

Presentation to:

City of Madison, Georgia

January 17, 2013

By:

Frank E. Jenkins, III

JENKINS & BOWEN, P.C.

15 South Public Square

Cartersville, Georgia  30120

(770) 387-1373

fjenkins@ga-lawyers.pro

TABLE OF CONTENTS

A.Legislative Versus Administrative Zoning Decisions
  1. Nature of Legislative and Administrative Zoning Decisions
  2. Administrative Zoning Decisions Defined
  3. Procedural Due Process Protection in Administrative Zoning Hearings
  4. Judicial Review of Administrative Decisions
    1. Nature of Appeal
    2. On the Record Review
    3. Standard of Review
  5. Legislative Zoning Decisions Defined
  6. Judicial Review of Legislative Decisions
    1. Nature of Appeal
    2. Nature of Remedy
    3. Burden of Proof in Rezoning Decisions
    4. Legislative v. Administrative Decision-Making
  7. Special Use Permits: A Special Case
  8. Summary and Conclusion

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B.Legal Effect of the Comprehensive Land Use Plan on Zoning Decisions
  1. Requirement of Zoning Consistency with Comprehensive Land Use Plan
  2. Use of the Comprehensive Land Use Plan as a Guide To Zoning Decisions
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C.Zoning and the Public Official: Do's and Don'ts for Conducting Public Hearings
  1. Do Express a Continuously Open Mind About the Zoning Issue Before, During, and After the Public Hearing
  2. Don't Promise a Vote
  3. Do Make Your Statements to the Chair – Avoid Arguing with Your Colleagues or Anyone in the Audience
  4. Don't Interject Personalities into Your Statements
  5. Do Elicit Agreements from the Property Owner for Conditions to Protect Neighboring Property Owners
  6. Do Make Your Vote Based on the Record of the Public Hearing
  7. Do State Any Conflicts of Interest at the Beginning of the Hearing on the Zoning Matter and Either Sit Quietly By or Excuse Yourself From the Hearing Room
  8. Don't Base a Decision on Factors Not Connected with the Established Zoning Standards
  9. Don't Tell the Property Owner and Neighborhood to Go "Work It Out"
  10. Don't Talk About Campaign Contributions During the Hearing

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Conclusion18
Endnotes20
  1. LEGISLATIVE VERSUS ADMINISTRATIVE ZONING DECISIONS
    1. NATURE OF LEGISLATIVE AND ADMINISTRATIVE ZONING DECISIONS

    Zoning decisions at the local government level are of two types.  One is legislative, the other administrative.  Different procedural rules apply depending on which type of decision is being made.  It is therefore imperative that we first understand the different nature of these decisions and then how the procedural rules differ.

  2. ADMINISTRATIVE ZONING DECISIONS DEFINED

Administrative zoning decisions are defined, not by the body or board that makes the decision, but by the nature of the decision being made. For example, at one instance a board of commissioners may make administrative decisions, such as the grant of a variance, while at another it makes legislative decisions, such as the rezoning of property.  We must then examine the nature of the decision to determine whether it is administrative or legislative.

Usually, local government administrative decisions are judicial in nature; in fact, they are often referred to as quasi-judicial. That is because the decisions are made in accordance with the typical judicial decision-making process. They usually affect directly the rights of individuals or entities who have an interest in the property subject to an administrative decision.  Typical local administrative zoning decisions include the grant or denial of variances, approval or disapproval of subdivision plats, and review of administrative decisions made by zoning officials.  The board or commission receives evidence, usually during a public hearing, decides the facts, and applies the facts to the standards in the zoning ordinance to arrive at a decision either approving or not approving the issue at hand.

  • PROCEDURAL DUE PROCESS PROTECTION IN ADMINISTRATIVE ZONING HEARINGS
    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.
      1. Allow the applicant to make the first presentation.
      2. Provide for witness testimony.
      3. Allow for cross-examination by interested parties (require interested parties to be represented by someone).
      4. Allow interested parties to introduce evidence.
      5. Allow cross-examination of the interested parties by applicant.
      6. Require that all documents be marked as exhibits.
      7. Upon conclusion of the hearing for each application, make a decision.
      8. Reduce all decisions to writing.

    The recommended procedures are as follows:

  • 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.
  • 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.
  • 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.
  • Have the official zoning map and future land use plan present at the hearing for use by anyone at the hearing.
  • Record the public hearing, either by a tape recorder or a court reporter. If the case is appealed, prepare a transcript.

Since administrative zoning decisions typically affect the rights of individuals whose property is subject to regulation by a local government, certain procedural due process safeguards are necessary.  Those safeguards generally include notice of a hearing, a right to present evidence, a right to representation by counsel, the right to cross-examine witnesses, and the right to a written decision based on the evidence presented at the hearing.

Due process at the local government level does not require strict procedural rules as would be expected in a court of law.  Not only that, public hearings are conducted by non-lawyers who are not expected to follow rules of civil procedure as required of a court.  Thus, a more relaxed proceeding is acceptable, although it must meet a minimal level of fairness. For added protection, administrative zoning decisions are subject to appeal to the superior court.

Of supreme importance is the right to a fair hearing and a written decision based on the record of evidence adduced at the hearing. 
Key Case on Procedures for Administrative Hearings
Jackson v. Spalding County, 256 Ga.  792, 462 S.E.2d 361 (1995)

ADMINISTRATIVE HEARINGS

On appeal, the Superior Court only reviews the record of the hearing before the local government; no new evidence is presented.

  • JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS
    1. Nature of Appeal

    In Georgia, appeals of administrative local government decisions are taken directly to the superior court.  Appeals are initiated in one of three ways: writ of certiorari, appeal, or mandamus. The local government dictates the method or procedure for appeal in its ordinance.  For example, the local government may provide that appeals from local government administrative decisions must be made to the superior court by writ of certiorari. In such case, the procedures under O.C.G.A. chapt. 5-4 must be followed.  Those provisions for certiorari apply to appeals from decisions of inferior tribunals to the superior court.  The second procedure is found in O.C.G.A. chapt. 5-3, which deals with appeals from inferior tribunals to the superior court. The standards are different than certiorari, but the procedures are detailed in the appeals chapter and must be followed.  The third is by petition for mandamus.  This procedural vehicle for appeal is required when the local zoning ordinance is silent as to the method of appeal to the superior court.

  • On the Record Review

Judicial review of a local government zoning or administrative decision is a review of the record only.  Our constitutionally based doctrine of separation of powers requires a very limited judicial review of administrative decisions.  Thus, the court in its review will not receive new evidence, but will review the record of evidence presented to the administrative agency.  The court does not substitute its judgment for that of the administrative agency, but merely reviews the record to determine whether the agency acted beyond its discretionary powers, abused its discretion, or acted arbitrarily or capriciously regarding an individual’s constitutional rights.

This limited judicial review of the record applies regardless of the method used to appeal the decision to the superior court.  That is, whether the appeal is by writ of certiorari, appeal under the statutory provisions, or mandamus, the court is still limited to a review of the record before the local government administrative agency.

  • Standard of Review

The superior court, in its review of the record of evidence presented to the administrative decision agency, determines whether the agency abused its discretion or whether the appellant is entitled to relief as a matter of law.  Under this review, the “any evidence” rule of administrative review applies.  Thus, the court, in consideration of the record of the proceedings before the administrative agency, determines whether there is any evidence which supports the decision of the administrative agency. If so, then the court’s duty is to uphold the administrative decision.

  • LEGISLATIVE ZONING DECISIONS DEFINED

Legislative decisions are those which have broad-based application and are in the nature of policy making by the local government. They are more apt to apply to the general population than impact specific individuals. Adoption of an ordinance, in our case a zoning ordinance, is the most typical example of legislative decision making.  Under the Georgia Zoning Procedures Law, the General Assembly defined the following as legislative decisions: adoption of a zoning ordinance, amendment to a zoning ordinance, the rezoning of property from one zoning classification to another, and the grant of a special use permit. Since these are deemed legislative decisions, only the governing body of the local government may make them.  In the case of cities, that is reserved exclusively to the city council or city commission; in the case of counties, legislative decisions are reserved exclusively to the board of commissioners.  A planning commission appointed by the local governing body may make recommendations to the governing body, but the ultimate decision rests within the legislative discretion of the local governing body.

Legislative decisions are not bound by specific rules or standards.  They are intended to have broad application, and though subject to constitutional limitations, legislative decisions are based upon broad discretionary powers inherent in the legislative process. This is true although the local government is required to adopt standards governing decisions of rezoning property.

  • JUDICIAL REVIEW OF LEGISLATIVE DECISIONS
    1. Nature of Appeal

    Like the appeal of administrative decisions, legislative decisions are subject to a limited judicial review.  But the court in its review is not limited only to a review of the evidence presented to the local government.  The superior court conducts a de novo review of the challenges to the zoning decision. Therefore, the court is not limited by the facts or evidence presented to the local governing body, nor is it limited by the lower court’s determination of the applicable law.  It is a fresh appeal, and new evidence, including expert testimony, may be offered to the court.  The court is free to make an independent determination of whether the procedural or substantive challenges may be sustained based on the evidence presented to the court and based on the applicable law.

    The constitutional challenges to a legislative zoning decision are generally of two types.  One is facial, meaning that a challenge is made to the ordinance as adopted without regard to how the ordinance is applied.  The other type is commonly called an “as applied” challenge, which usually asserts that a zoning ordinance as applied to specific property is unconstitutional.  This more commonly occurs in challenges to the rezoning of property or grant of a special use permit.

    Whether the appeal is a facial challenge or an as applied challenge, the superior court is authorized to receive evidence de novo and make a decision as to whether the legislative decision will survive constitutional attack.

  • Nature of Remedy

In an “as applied” constitutional challenge, an appeal to the superior court is initiated by filing a complaint challenging the decision by the local government.  Although it is in the nature of an appeal, it is treated as a complaint in equity. Of course, if damages apply, then legal remedies as well as equitable may be availed to the complaining party.

The trial court is not limited to the record of the evidence presented to the administrative agency, but may take a fresh look at new evidence presented by the parties.

When appeals involve zoning decisions, the separation of powers doctrine prohibits the court from rezoning property.  The court’s remedy to a complaining party, other than damages, is limited to declaring a zoning decision unconstitutional.  After that, utilizing its injunctive powers, the court remands the case to the local government with direction to rezone the property to a constitutional zoning classification.  In this way, the legislative discretion of the local government is not judicially usurped, although the local government must rezone the property to a classification different from that found unconstitutional by the court.

  • Burden of Proof in Rezoning Decisions

Since a zoning decision is a legislative decision, it enjoys the presumption of validity as is true of all legislative decisions. The burden of proof of the landowner who challenges the denial of a rezoning petition is different from that of a neighboring property owner who challenges the grant of a rezoning petition.  In the former, the property owner must show by clear and convincing evidence that he has suffered substantial detriment without a countervailing benefit to the public health, safety, morality, and welfare.  It is only upon this showing that the local government must then come forward with evidence to rebut the evidence adduced on behalf of the property owner.

Where a neighboring property owner challenges a rezoning of property, he is required to show fraud, corruption, or a manifest abuse of discretion to the detriment of the neighboring property owners.  This too is a very heavy burden; one that certainly favors the property owner.

  1. Legislative v. Administrative Decision-Making
  2. Legislative Hearings
  3. Set up procedures for calling and conducting of the hearing as required by O.C.G.A. § 36-66-5(a).
  4. Give the required notice under the Zoning Procedures Law, O.C.G.A. § 36-66-4.
  5. 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.
  6. Record the public hearing, either by a tape recorder or a court reporter. If the case is appealed, prepare a transcript.
  7. 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.
  8. Prepare a copy of the procedures for distribution to the attendees as required by O.C.G.A. § 36-66-5(a).
  9. Have the official zoning map and the future land use plan present during the public hearing.
  10. Have a professional staff member give a report and make a recommendation to the hearing board.
  11. 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.
  12. 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.
  • SPECIAL USE PERMITS:  A SPECIAL CASE

While the grant of denial of a permit such as special use permit had long been considered an administrative zoning decision, the Zoning Procedures Law was amended in 1998 to list them amongst the matters referred to as “legislative” zoning decisions, such that require compliance with the ZPL for notice and a hearing.  Yet, rather than converting special use permit decisions to legislative decisions, with de novo review at the superior court, or rather than continuing to treat them as quasi-judicial decisions, the Supreme Court has adopted a sort of hybrid analysis.  Special use permits are called legislative decisions and the legislative discretion of the Board is honored, but the review is on the record and they are upheld if there is “any evidence” to support the decision.  See, e.g., Gwinnett County v. Ehler Enterprises, 270 Ga. 570(1), 512 S.E.2d 239 (1999).City of Alpharetta v. Estate of C.R. Sims, 272 Ga. 680, 682, 533 S.E.2d 692 (2000), Fulton County v. Congregation of Anshei Chesed, 275 Ga. 856, 859(2), 572 S.E.2d 530 (2002).  Jackson County v. Earth Resources, 280 Ga. 389, 390, 627 S.E.2d 569 (2006); City of Roswell v. Fellowship Christian School, 281 Ga. 767, 642 S.E.2d 824 (2007).

The “any evidence” standard being easy to satisfy (since it basically equates to abuse of discretion), and there not being an opportunity to present new evidence, expert testimony and so forth, the grant or denial of a special use permit becomes almost impossible to overturn, unless the Board’s action is simply arbitrary.  In the City of Roswell case, supra, the only evidence against the requested school football stadium appeared to be neighbor comments that there were two other stadiums in the vicinity and that traffic would be negatively impacted.  The Court held, “Neither the superior court nor this Court has any discretion to exercise in connection with FCS’s application for a Permit. Whether to approve or to deny that application was addressed solely to the exercise of Appellants’ sound discretion in accordance with the factors enumerated in the ordinance. There was evidence to support the decision to deny the Permit based upon the negative impact the stadium would have on traffic in the area.”  281 Ga. at 769.  Special use permits have become the best (or worst) of both worlds:  the boards are considered to have discretion to apply the criteria in the ordinance governing the issuance of the permit, and the decision can be supported by any evidence.

  • SUMMARY AND CONCLUSION

Local government zoning decisions are generally of two types:  administrative and legislative.  Request for variances, subdivision plat approval, and review of zoning decisions by zoning officials are examples of administrative zoning decisions.  Due process safeguards are required inadministrative decision making, including the right to notice, to present evidence, to cross-examine witnesses, to develop a record of the proceedings, and to a written decision based on the record. It is a decision that is judicial in nature, as the decision-maker determines the facts and applies the facts to the legal standards in the zoning ordinance.

Legislative decisions, on the other hand, are those which result in the adoption of a zoning ordinance, an amendment to the zoning ordinance, the rezoning of property, and the approval of a special use permit.  These decisions must be made by the local governing authority.  As legislative decisions, they are policy-making decisions with usually far-reaching application.  Due process, trial-type hearings are not required, but the local government is required to conduct a hearing in which applicants and opponents may present their case to the decision-maker.  Legislative decisions are limited by the Constitution, and thus the typical issue on appeal of a legislative decision is whether it violates any of the protections afforded under either the Georgia or Federal Constitutions.

  • LEGAL EFFECT OF THE COMPREHENSIVE LAND USE PLAN ON ZONING DECISIONS
    1. REQUIREMENT OF ZONING CONSISTENCY WITH COMPREHENSIVE LAND USE PLAN

    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.

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

  • USE OF THE COMPREHENSIVE LAND USE PLAN AS A GUIDE TO ZONING DECISIONS

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

City of Atlanta v. Tap Associates, L.P., 273 Ga. 681, 544 S.E.2d 433 (2001)

  • ZONING AND THE PUBLIC OFFICIAL:  DO’S AND DON’TS FOR CONDUCTING PUBLIC HEARINGS
    1. DO EXPRESS A CONTINUOUSLY OPEN MIND ABOUT THE ZONING ISSUE BEFORE, DURING, AND AFTER THE PUBLIC HEARING

    Vigilantly maintain an open, unbiased mind and arrive at a decision only at the moment of truth -- the vote.  If this does not play well with your constituents, at least tell them that a lawyer said a pre-disposition to vote in a particular way in a zoning issue could be used in court, and for that reason you cannot express your opinion so as not to jeopardize the decision which will be made.  If you have done your homework, your constituents will know which way you are likely to vote, and when you vote that way, that's what counts.
    The most effective legislators virtually always say in response to a constituent's request for a vote that they will seriously consider the information and views expressed, but that he or she must not confirm a vote one way or the other until after the public hearing.

  • DON'T PROMISE A VOTE

One of the best ways to undermine the purpose of a public hearing is to let it be known that a decision has been pre-determined and that it doesn't matter what is said or presented at the public hearing.  One way to do that is to promise a property owner or neighborhood that they have your vote.  This proposition may not stand up in the real world, but indeed a predetermined vote could be used against you and your ultimate zoning decision in the face of a challenge that there was not a
meaningful public hearing.  If you are inclined to vote for one side or the other even before the public hearing, just vote that way, but don't say it out loud.

  • DO MAKE YOUR STATEMENTS TO THE CHAIR – AVOID ARGUING WITH YOUR COLLEAGUES OR ANYONE IN THE AUDIENCE

Order and decorum are best preserved in a public hearing if all statements and comments are made to the Chair of the public hearing, rather than addressed directly to another Board member or to anyone in the audience.  Of course, questions may be asked of someone in the audience, and in such a case the individual would be addressed directly.  But, in your comments or statement about the zoning, always address those to the Chair, especially if it is a contentious zoning, as this usually blunts any kind of attack or criticism and avoids direct confrontation in the zoning hearing.

  • DON'T INTERJECT PERSONALITIES INTO YOUR STATEMENTS
    1. Developer Smith has not been honest with us in the past, and I don't believe him now."
    2. "I never liked developer Smith's buildings, and this one is no different."
    3. Developer Smith took advantage of the local government in another city or county, and I won't let it happen here.
    4. DO ELICIT AGREEMENTS FROM THE PROPERTY OWNER FOR
    5. CONDITIONS TO PROTECT NEIGHBORING PROPERTY OWNERS

    One critical role the public official has in exercising legislative discretion is to make certain that surrounding property owners are protected from any harsh effects of a proposed land use.  To that end, the astute public official will elicit agreements from the owner or developer to impose conditions which will serve to protect surrounding property owners.  Do get those agreements where possible, but be reasonable.  Of course, the property owner does not have to agree to the conditions, but certainly the zoning process is better served where the owner or developer agrees to accept conditions which will protect neighboring property owners.

  • DO MAKE YOUR VOTE BASED ON THE RECORD OF THE PUBLIC HEARING

It is not unusual to go to the hearing with preconceived notions about the proper zoning to be considered.  Those notions should be kept to yourself, rather than revealed too early and later come back to haunt you.  In all your statements at the public hearing, rely on evidence, as well as recommendations and other parts of the written record, in justifying your decision.  Obviously, if you have visited the property in question, it would be appropriate to rely upon your own insightful observation of the property and the surrounding uses.  But keep your vote on the record, and based on the record.

  • DO STATE ANY CONFLICTS OF INTEREST AT THE BEGINNINGOF THE HEARING ON THE ZONING MATTER AND EITHER SIT QUIETLY BY OR EXCUSE YOURSELF FROM THE HEARING ROOM

If you know of a conflict of interest which has been previously reported pursuant to the Conflict of Interest in Zoning Act, or for some other reason you are compelled to abstain from voting, always state your conflict or intent to abstain from voting at the beginning of the hearing on the zoning in question.  Never wait until the vote is to be taken to announce your conflict.  After announcing your conflict or abstention from voting, as the case may be, you may either sit quietly at the hearing, or excuse yourself from the hearing room.  In any event, it is imperative that you not participate in any way in the public hearing or the discussion regarding the issue if you abstain from voting.

  • DON'T BASE A DECISION ON FACTORS NOT CONNECTED WITH THE ESTABLISHED ZONING STANDARDS

Your local government has adopted standards which govern the exercise of zoning.  This is required under the Zoning Procedures Act.  Therefore, decisions should be based on those factors and not those unconnected with the standards made a part of the zoning ordinance.  It is true that your opposition to zoning may be based on the opposition of your best friend.  If that is the case, keep that to yourself, and don't announce it in the public hearing.  You better serve the hearing and the decision process if your statements relate to the zoning standards as, after all, that is the legal basis on which decisions are to be made.

  • DON'T TELL THE PROPERTY OWNER AND NEIGHBORHOOD TO GO "WORK IT OUT"

The zoning decision is your decision, not theirs.  It is better to ask the neighborhood and developer to take time to get together and see if alternative proposals could be presented at the next meeting for consideration by the local government.  Don't forget, you and the other board members have the final decision.  If possible, elicit from the developer and a spokesman from the neighborhood an agreement on the record that they will meet and consider alternative proposals.  Ask them, "will you agree to meet?"  Usually they will agree in the presence of the local government in a public hearing.  They can hardly complain later about that which they agreed to in public.

  • DON'T TALK ABOUT CAMPAIGN CONTRIBUTIONS DURING THE HEARING

A better practice is to prepare a statement for filing with the zoning record reporting any campaign contributions required to be reported under the Conflict of Interest in Zoning Actions Act, O.C.G.A. Title 36, Chapter 67A.  By doing that, you may respond to an inquiry that all contributions required to be reported have been made a part of the record.  You need not say more, and this gives you a good response without dealing with the specifics of any contributions.

CONCLUSION

Remember, your vote should be based on the record and not on personalities or a directional check of the political winds.  If either of those considerations enters into your vote, just don't say it out loud.

It is better in the zoning hearing to talk about zoning standards than personalities.  Attacking a person leads often to a fusillade between officials and participants in the audience.  For example, don't say any of the following:

In Georgia, zoning is an act of legislative discretion which our state constitution vested in the local government.  To the local official the exercise of the legislative discretion in making zoning decisions is similar to passing upon any other ordinance.  It is a matter of policy; an expression of the local government that a specific land use is an appropriate one for the property owner and for the public at large.  Usually, no one land use is the only right one; by the same token, no land use is the only wrong one.  In fact, almost without exception, several different land uses may be appropriate and withstand a constitutional challenge, but it is the local government which, in its discretion, decides which land use or zoning district should be approved.

Zoning, however, is different in one respect from most other legislation approved by a local government.  Its difference stems from its direct effect on private property rights.  Those include the rights of the property owner to the enjoyment and use of his or her property and the right of the public (and surrounding neighbors) not to be unreasonably harmed by a specific land use.

Because of these rights, our state constitution, as well as the U.S. Constitution, requires that zoning decisions be made only after a public hearing during which the interests of the property owners and the public may be expressed and considered by the local government.  If a public hearing is a requirement before a zoning decision may be made, then a zoning decision must be based in part on what is presented at the hearing.  At the very least, those matters presented at the hearing should be considered by the local government before it exercises its legislative discretion by making a zoning decision.

This brings to mind the importance of the individual public official's conduct in assuring the property owner and the public that a public hearing is a meaningful event conducted to provide useful and worthwhile information relevant to the public official's consideration of the zoning issue at hand.  But, to be sure, the public hearing is the place where the rate of the political pulse increases.  It is a natural forum for making statements to voters.  But at the same time, it is the place where public statements are more vulnerable to attack than at any other time.  Everybody in attendance hears your comments; not only that, your comments are usually recorded.  The better rule to follow is to speak through your vote.  After all, that's what counts.  Talk is cheap, but your vote speaks loud and clear.

If you must make a statement, express that your vote is based on the record and that the record establishes that the public interest is benefited most by a vote for or against the property owner, as the case may be.  Or you may say that you believe that the current land use is unreasonable and that the change requested by the property owner will not cause harm to the public or surrounding neighborhood.  In these statements, or ones similar to these, the personalities of the people are not involved, and it gives the appearance that a vote is well-informed and based on appropriate land use considerations rather than the people involved.

This leads to a list of do's and don'ts for the public official who wants to avoid tainting the public hearing process.  Remember the ideal is an open-minded public official who comes to the public hearing eager to learn all the facts and circumstances before making his or her decision about the zoning under consideration (I know that is ideal, but give it a try).  Following are some of those do's and don'ts to consider in the conduct of the public hearing:

ENDNOTES

1Southview Cemetary Ass’n v. Hailey, 199 Ga. 478, 34 S.E.2d 863 (1945); Mack II v. City of Atlanta, 227 Ga. App. 305, 489 S.E.2d 357 (1998).

2Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995), (variance decision by a local board of appeals is quasi-judicial in nature); Bentley v. Chastain, 242 Ga. 348, 249 S.E.2d 38 (1978).

3Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995), (for variance, board considers whether facts applying to property warrant relief from zoning under standards in ordinance); Bentley v. Chastain, 242 Ga. 348, 249 S.E.2d 38 (1978).

4Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995).

5Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995)(strict adherence to rules of evidence not required; hearing may be conducted informally).

6Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995); Dougherty County v. Webb, 256 Ga. 474, 350 S.E.2d 457 (1986).

7 O.C.G.A. chapt. 5-4; Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995).

8 O.C.G.A. chapt. 5-3; Dougherty County v. Webb, 256 Ga. 474, 350 S.E.2d 457 (1986)

9Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995)(mandamus is remedy when zoning ordinance is silent as to judicial review); Shockley v. Fayette County, 260 Ga. 489, 396 S.E.2d 883 (1990).

10Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995).

11Emory University v. Levitas, 260 Ga. 894, 401 S.E.2d 691 (1991).

12Gwinnett County v. Ehler Enterprises, Inc., 270 Ga. 570, 512 S.E.2d 239 (1999); Emory University v. Levitas, 260 Ga. 894, 401 S.E.2d 691 (1991).

13Crymes v. DeKalb County, 923 F. 2d 1482 (11th Cir. 1991).

14O.C.G.A. § 36-66-3.

15Crymes v. DeKalb County, 923 F. 2d 1482 (11th Cir. 1991). 16Dougherty County v. Webb, 256 Ga. 474, 350 S.E.2d 457 (1986). 17Jacobs v. The Florida Bar, 50 F.3d 901 (11th Cir. 1995); O. S. Advertising Co. of Georgia v. Rubin, 267 Ga. 723, 482 S.E.2d 295 (1997); Village Centers, Inc. v. DeKalb County, 248 Ga. 177, 281 S.E.2d 522 (1981).

18Dougherty County v. Webb, 256 Ga. 474, 350 S.E.2d 457 (1986).

19Dougherty County v. Webb, 256 Ga. 474, 350 S.E.2d 457 (1986). 20Speedway Grading Corp. v. Barrow County Board of Commissioners, 258 Ga. 693, 373 S.E.2d 205 (1988); DeKalb County v. Post Properties, Inc., 245 Ga. 214, 263 S.E.2d 905 (1979).

21Gradous v. Board of Commissioners of Richmond County, 256 Ga. 469, 349 S.E.2d 707 (1986).

22DeKalb County v. Dobson, 267 Ga. 624, 482 S.E.2d 239 (1997); Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975).

23 Cross v. Hall County, 238 Ga. 709, 235 S.E.2d 379 (1977).