Atlanta

When it Comes to Zoning Changes, Time Waits for No Plan

So you want to build a house. You’ve spent months deciding on the right piece of land, done your financial costs and benefits analysis, purchased said land, applied for all the correct permits, and hired an architect. During this long and arduous process, though, the city decided to rezone your land from residential to commercial in order to further promote and accommodate the growing business development in the area. All is lost, right? Sure you can sell the land to a developer, but you really wanted that house and you’ve already spent the time, money, and effort needed to commence construction.

Most states, including Georgia, allow landowners to move forward with such a project despite the zoning change if they’ve acquired a “vested right” to construct the building in accordance with the old zoning code. In Georgia, this vested right is generally obtained when a landowner has “made a substantial change in position toward the land, made substantial expenditures, or has acquired a substantial obligation prior to the zoning change.” A common example of this is when a landowner receives assurances from officials that their project satisfies existing zoning codes and, in reliance on those assurances, goes forward with hiring contractors and conducting initial site work. [1]

The real question, though, is how long does that vested right last once it is obtained by the landowner? Does the landowner have to commence construction immediately or can they wait 10 years to exercise their vested right to build under the old zoning code?

This is an important question since structures built under the auspices of an old zoning code that are now excluded from the current zoning code are at odds with the updated vision for the community. This may not be a big deal when, say, a house is constructed a year after an area is rezoned for commercial use. However, it becomes increasingly problematic when that house is now a power plant and the one year has increased to ten. This ability to develop based on a 10 year old zoning code creates uncertainty for potential residents and developers who may find the nonconforming development to be an undesirable neighbor.

landfill

Hickory Ridge Landfill at I-285 and Moreland Avenue

It’s often the case that when less desirable land uses are proposed for development in an appropriately zoned area, municipalities quickly take action to rezone the area in an effort to disallow the new proposal. This issue comes up frequently with landfills.

Several weeks ago the Georgia Supreme Court heard arguments in a case that tests the limits of the vested rights policy. In 1989, Southern States – Bartow County, Inc (Southern States) applied for a permit from the Georgia Environmental Protection Division (EPD) to operate a landfill in Bartow County. However, EPD is required to obtain certification from a city or county stating that the proposed landfill conforms with existing land use laws before it can issue a permit. The county rejected the proposal as a violation of its zoning code, but Southern States was temporarily saved by a Georgia Supreme Court ruling that threw out the zoning code since it was improperly enacted. Bartow County then enacted a new zoning code that, again, did not allow landfills on the proposed site. However, it did allow for intended projects that did not meet the new zoning code to move forward so long as those projects commenced within a year. The Bartow County Superior Court ruled in 1994 that Southern States did have a vested interest in the landfill project and the county issued a certificate to the company.

Southern States then quickly got to work on their landfill. Well, not exactly. According to Bartow County and area residents, the company didn’t give the go-ahead to do hydrogeological assessments and wetlands analysis, as required by the EPD to get a permit, until 2002. That’s eight years after they acquired their vested right. The county and area residents, both opponents of the landfill project, sued Southern States in 2013 asking the court to halt construction arguing that the company’s vested right should clearly have expired. Both the Bartow County Superior Court and the Georgia Court of Appeals agreed that the right had lapsed under the 1994 Bartow County zoning code.

Southern States then appealed to the Georgia Supreme Court stating that the zoning code violates the Georgia Constitution by retroactively applying a law and by legislatively divesting an owner of a vested right without the owner’s consent. The Bartow County Superior Court rejected these arguments, which is why the case is now in front of the Georgia Supreme Court. [2]

landfill-site

Site of Proposed Landfill via Google Maps

 

Let’s avoid getting into the weeds of the legal question and just focus on whether it’s good policy to allow such a project to go forward. The entire idea of a comprehensive plan and zoning code is to organize current and future development into something that promotes the general welfare of the community. An additional benefit of these plans is the assurances they provide to the general community over how land will be used. Few people want to gamble with buying a home next to a piece of land that could either contain a house or a power plant five years down the road.

A plan only works, though, if it’s allowed to come to fruition. When new plans are created they almost always allow existing land uses that no longer conform to the plan to continue to exist (otherwise the government risks legally taking the property, which would require compensation). Certain methods can be used by the government to force the discontinuation of those uses, but in most cases the community must wait years or decades for those uses to voluntarily be discontinued. While one reason to uphold this norm is comprised of the government’s disinterest in having to reimburse landowners for taking their property, the predominant reason is out of fairness; it’s not fair, or politically-wise, to force someone to relinquish their property even though we want our community plan to be realized.

However this argument isn’t as strong in the case of vested rights. Sure landowners have spent time and money pursuing a project, but they aren’t as firmly established as residents or businesses that have occupied existing structures for multiple years. Property owners who have suffered from mid-project zoning changes should be given the opportunity to finish those projects, but they shouldn’t be given an indefinite amount of time. This creates confusion among the community as they wait to see if the property will become a landfill or if it will conform to the zoning code, potentially hindering economic development in the surrounding area.

The Georgia Supreme Court is set to issue an opinion in the case in the coming weeks.

Update 2/27/2017

The Georgia Supreme Court ruled that the Bartow County ordinance requiring work to be commenced within 1 year is unconstitutional as-applied to Southern States. The Georgia Constitution prohibits laws from applying retroactively; that is, a law cannot take-away a vested right one had under a previous law. The ruling only states that the ordinance is unconstitutional as-applied to Southern States so landowners who gain a vested right after the one-year commencement ordinance was established must still exercise their vested right within one year. The case now goes back to the Bartow County Superior Court for further judgment.


[1] Weissman, Seth G., Dillard, G. Douglas. Zoning and Land Use Law in Georgia. 2013. Pages 339-340

[2] See Southern States-Bartow County, Inc. et al. v. Bartow County et al. (S16A1716) All facts come directly from the Georgia Supreme Court’s “Cases Due for Oral Argument: Summary of Facts and Issues.” http://www.gasupreme.us/wp-content/uploads/2016/09/oct3_2016_OA.pdf

 

 

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