DeKalb County v. Albritton Properties

• Decision Date: 25 June 1986
• Docket Number: No. 43468,43468
• Citation: 256 Ga. 103,344 S.E.2d 653
• Parties: DeKALB COUNTY et al. v. ALBRITTON PROPERTIES, et al.
• Court: Georgia Supreme Court

Page 653

344 S.E.2d 653

256 Ga. 103

DeKALB COUNTY et al. v. ALBRITTON PROPERTIES, et al.

No. 43468.

Supreme Court of Georgia.

June 25, 1986.

Frank E. Jenkins III, Robert M. Darroch, Ruth A. Zaleon, Jenkins, Bergman & Darroch, Atlanta, for DeKalb County, et al.

G. Douglas Dillard, Carl E. Westmorland, Jr., Dick Wilson, Jr., Dillard, Greer, Westmoreland & Wilson, P.C., Atlanta, for Sutherland, Asbill, & Brennan, James H. Wilson, Jr., Alston & Bird, G. Conley Ingram, A. James Elliott, Kilpatrick & Cody, Wilbur B. King, Albritton Properties Southeast et al.

James F. Grubiak, Walter E. Sumner, Robert D. Clark, Timothy J. Sweeney, amici curiae.

PER CURIAM.

The DeKalb County Board of Commissioners denied the appellees' application to rezone the Lake Hearn neighborhood from single family residential classification to an office and institutional classification. The DeKalb County Superior Court held the single family residential zoning classification unconstitutional. DeKalb County, in its appeal of the Superior Court's ruling, raises seven issues. We affirm.

The Lake Hearn subdivision lies south of Lake Hearn Drive as it runs between Peachtree Dunwoody Road and Ashford Dunwoody Road. I-285 lies to the north of the neighborhood. Two five story office buildings lie to the northeast and northwest. One other office building lies to the northeast, across Ashford Dunwoody Road. Single family residential subdivisions lie to the south and southeast. Peachtree Dunwoody Road and the western end of Lake Hearn Drive in Fulton County have been commercially developed.

All of the present homeowners in the Lake Hearn neighborhood banded together for a neighborhood "sell-out" to appellee Albritton, contingent upon the rezoning of the neighborhood from R-100, a single family residential classification, to O-I, an office and institutional classification. According to Albritton's conceptual site plan, the Lake Hearn Office Complex would, after ten years, contain two twenty-five story office buildings, two twenty-one story office buildings, two eighteen story office buildings, four fifteen story office buildings, seven twelve story office buildings, four nine story office buildings, two six story office buildings, an eighteen story hotel, and a nine floor museum. The complex would also include a health club, an amphitheater, jogging trails, and a twenty-three acre buffer zone abutting the Byrnwick subdivision to the south.

The DeKalb County Planning Department recommended a denial of the rezoning application. The Planning Commission recommended conditional approval. The Board of Commissioners denied the application by a 6-1 vote.

The neighborhood consists of 144 homes, ninety-seven of which are owner occupied, forty-four of which are renter occupied, and three of which are vacant. The average home in the neighborhood was valued by the appellees at $107,000. Each of the homeowners involved in this case has agreed to sell their homes for at least $225,000 to appellee Albritton.

Thirteen neighborhood homes were sold between 1979 and 1984. Ten of the homes, now renter occupied, sold for 18% to 63% over the previous sale price. The three other homes, now owner occupied, sold for 3.24%, 3.77%, and .25% over their previous sale prices. These sales occurred in 1980, 1981, and 1982. No decrease in the value of any home in the neighborhood was shown through appraisal or resale. The rate of appreciation of value for similar homes in Dekalb County averaged ten to twelve percent.

A number of Lake Hearn homeowners testified that the quality of life in the neighborhood had declined as commercial development crept closer to the neighborhood. They stated that traffic had become a problem, that noise from I-285 was intolerable, and that many of the homes in the neighborhood had fallen into disrepair since occupied by renters. They felt that they had lost the battle to preserve the residential character of the neighborhood, and that they should now be allowed to surrender.

The appellees' experts painted a picture of inexorable commercial growth in the Perimeter Center area. James Wilson, President of appellee Albritton, testified that the residents of Lake Hearn were being used as human buffers against commercial development. He claimed that his development would not impinge upon adjacent neighborhoods. He described the agreement that he reached with a number of residents in the neighboring Byrnwick subdivision to preserve a very large buffer zone between the new development and the abutting neighborhood.

The appellees' traffic expert testified as to foreseeably necessary roadway improvements in the Perimeter Center area. He stated that such improvements would be necessary, notwithstanding any change in the zoning of the Lake Hearn neighborhood. He noted that the majority of his recommended improvements have been included in the Atlanta Regional Commission's long range plan, but that the ultimate authority to approve a number of the recommended improvements rested with the State Department of Transportation (DOT). He also testified that traffic volume on Lake Hearn Drive was 1,200 vehicles per hour, and that Lake Hearn Drive could acceptably handle up to 1,400 vehicles per hour.

A land use expert testified for the appellees that noise created by traffic on I-285 rendered the Lake Hearn neighborhood unsuitable for residential use. Noise in part of the neighborhood exceeded the maximum limits for V.A. or F.H.A. mortgage approval. He stated that noise levels on the Lake Hearn tract would be acceptable for commercial or industrial development, and that the proper commercial development on the tract could actually improve noise levels in the adjacent Byrnwick neighborhood. He testified that the neighborhood should not remain residential.

The appellees' real estate appraisal expert testified that the highest and best use for the Lake Hearn tract would be a mixed-use development consisting of office and retail space, with an adjacent hotel. He found that the property would be worth $43,000,000 zoned for its highest and best use. He found that the property would be worth $15,307,000 if maintained as a neighborhood. He believed that the value of the land would depreciate if not rezoned. He finally concluded that a twenty-three acre buffer zone between any development and the Byrnwick subdivision would preserve the value of that subdivision.

Another land use planning expert testified for the appellees that R-100 zoning was inappropriate for the Lake Hearn subdivision. He asserted that maintenance of that zoning classification would lead to deterioration of the neighborhood and would thus result in a detriment to the public interest. He stated that the best zoning for the land in question was an office and institutional classification, and that the land could be developed pursuant to that zoning in a manner in which it would not harm neighboring residential developments. He finally testified that the three office developments adjacent to the Lake Hearn neighborhood are zoned an office and institutional classification in violation of the county comprehensive development plan.

A final land use planning expert also testified for the appellees that he would consider the maintenance of a single-family residential zoning classification for the Lake Hearn neighborhood to be equivalent to spot zoning. He testified that an office and institutional zoning classification would be appropriate for that piece of property. He stated that he believed that the property's value would decrease under any residential classification.

An urban planning expert testified for the appellees that the land in question is in the final stages of a "land use succession" from rural to residential to commercial use. He testified that the Perimeter Center is "the most active nodal development in the United States ..." He asserted that in ten years, Perimeter Center area will have more office and retail space than downtown Atlanta. He stated that the public interest would be harmed by a refusal on the part of the county to allow the land to be used for its natural use. He stated that the increase in land value attributable to rezoning would expand the county tax base, facilitating improvements in the infrastructure.

An expert appraiser testified for the appellants that in a neighborhood near Lake Hearn and similar in character to Lake Hearn, the proximity of homes to I-285 did not affect the value of the homes. He testified that the mean and median prices for homes sold in Lake Hearn increased consistently from 1979 to 1984, except for a slight lull in late 1982 and early 1983. The increases were similar to those found in sales of homes within a three mile radius of Lake Hearn. He asserted that the lull was related to changes in mortgage rates in Atlanta, not to the construction of the office buildings adjacent to the neighborhood. He testified that he considered the neighborhood to be a viable single-family neighborhood that would continue to increase in value as such.

A traffic planning expert testified for the appellants that during the peak period, Lake Hearn Drive operated at 63% capacity. He stated that an increase in traffic from the Lake Hearn area would increase congestion at the intersection of Ashford Dunwoody Road and I-285. He stated that traffic volume at that intersection already exceeded its capacity.

The Director of Public Works for DeKalb County named the eighteen road improvements that the county had committed itself to undertake. None of the improvements under construction at that time were in the Perimeter Center area. Funds had not been committed to any listed improvement in the Perimeter Center area. Ashford Dunwoody Road was the fifth road in need of widening according to the county plans which were based upon an analysis of traffic generated by land as zoned according to the DeKalb County comprehensive development plan. The Director stated that...