DeKalb County v. Dobson, S96A1888
| Decision Date | 17 February 1997 |
| Docket Number | No. S96A1888,S96A1888 |
| Citation | 482 S.E.2d 239,267 Ga. 624 |
| Parties | , 97 FCDR 518, 97 FCDR 959 DeKALB COUNTY v. DOBSON et al. |
| Court | Georgia Supreme Court |
Kirk R. Fjelstul, Jenkins & Nelson, P.C., Cartersville, for DeKalb County.
Benjamin Erlitz, Atlanta, for George Dobson et al.
Appellant DeKalb County ("the County") sought an appeal from the trial court's ruling that the present zoning classification of appellees' properties is unconstitutional. In order to review that conclusion, we granted the County's application for discretionary appeal. We find that appellees altogether failed to satisfy their burden to present clear and convincing evidence that, under the present zoning classification, they are suffering a significant detriment to their rights as landowners unrelated to the public welfare. Therefore, we find that the trial court's ruling was clearly erroneous, and we reverse.
Appellees are the owners of two adjacent parcels of land ("the Property") located on Tilly Mill Road in DeKalb County, and the developers who have contracted to purchase the Property, contingent on it being rezoned. The Property is presently zoned as classification R-85 (residential), which requires a minimum lot size of 12,000 square feet, a minimum width of 85 feet, and a minimum setback of 35 feet. The appellees sought a rezoning of the Property to a slightly modified classification R-50 (residential), which requires only a minimum lot size of 6,000 square feet, a minimum width of 60 feet, and a minimum setback of 5 feet. Both the R-85 and R-50 zoning classifications require detached single-family dwellings.
At present, there are two dwellings on the Property. As found by the trial court, if the Property was developed under its present R-85 classification, it would yield nine separate lots. However, if it was developed under an R-50 classification, the number of separate lots would increase to seventeen. There was evidence introduced that development of the Property would yield a profit under either zoning classification. That profit obviously would be greater if the Property was zoned as R-50.
The county planning commission reviewed appellees' request to rezone the Property to R-50, and approved it with certain conditions. The county commission, however, rejected the rezoning application. The appellees appealed to the trial court, which reversed the commission's rejection of the application, ruled that the R-85 zoning classification was unconstitutional as applied to the appellees, and ordered that the Property be rezoned "in a constitutional manner."
In its written order, the trial court noted that the current trend in residential development is toward "larger houses on smaller lots." Thus, the trial court found that an R-50 zoning classification, with its smaller lot requirements, would better lend itself to the Property's development. The trial court also found that if the Property was developed under classification R-85, with its larger lot requirements, the nine lots that would be available would not justify the related costs. Therefore, concluded the trial court, appellees' property values "are substantially diminished by the existing zoning," and the Property "has not been used to its potential to positively influence the community and its owners." The trial court also noted that the present zoning has contributed to a high number of rental properties in the area, which has lowered property values, a trend the trial court indicated could be reversed by rezoning. Finally, the trial court stated that the layout of the Property would make it easy to develop if it were zoned R-50.
1. In reviewing zoning decisions, we remain always mindful that a governmental zoning ordinance is presumptively valid. 1 Moreover, if the validity of a zoning ordinance is "fairly debatable," the governmental judgment will control our ruling. 2 In zoning cases such as this one, our standard of review is the clearly erroneous test. 3
The presumption that a governmental zoning decision is valid can be overcome only by a plaintiff landowner's showing by clear and convincing evidence that the zoning classification is a significant detriment to him, and is insubstantially related to the public health, safety, morality, and welfare. 4 Only after both of these showings are made is a governing authority required to come forward with evidence to justify a zoning ordinance as reasonably related to the public interest. 5 If a plaintiff landowner fails to make a showing by clear and convincing evidence of a significant detriment and an insubstantial relationship to the public welfare the landowner's challenge to the zoning ordinance fails. 6
It is well established that "[a] significant detriment to the landowner is not shown by the fact that the property would be more valuable if rezoned, or by the fact that it would be more difficult to develop the ... property as zoned than if rezoned." 7 That is to say, a plaintiff landowner cannot satisfy his burden by showing that property could be put to a more profitable use if rezoned. 8 Land value always depends upon land use, and it is invariable that a more aggressive use of land by a landowner generally will increase a property's value. But in zoning challenges, the pertinent question is not whether rezoning would increase the value of property, but rather whether the existing zoning classification serves to deprive a landowner of property rights without due process of law. 9 "Hence, the evidence that the subject property would be more valuable if rezoned ... borders on being irrelevant." 10 In cases such as this one, the only relevant evidence regarding the value of the subject property is its value as it currently is zoned. 11
Bearing these principles in mind, it is obvious that there was ample evidence to support the county's decision not to rezone the Property, and that the trial court's ruling that the R-85 zoning classification was unconstitutional as applied to appellees was clearly erroneous. Appellees failed altogether to satisfy their burden to show that the R-85 zoning classification imposes a significant detriment to their rights as landowners. As explained in the factual discussion above, the trial court's order was based entirely upon its conclusions that (1) the R-50 classification would allow appellees to realize a greater profit in developing the Property, and (2) it would be easier to develop the Property under an R-50 zoning. Moreover, these are the only reasons put forth by appellees on appeal to this Court in support of their claim that the trial court should be affirmed. As shown by the case law discussed above, by showing that the Property could be more profitably and more easily developed under an R-50 zoning classification, and that the Property's value would increase under an R-50 zoning, appellees did not show by clear and convincing evidence that the R-85 classification burdens them with a significant detriment. Thus, there was no evidence before the trial court that would justify its ruling that the R-85 zoning classification was unconstitutional as applied. Furthermore, there was evidence put forth by the County that the Property has a significant value as presently zoned, and could be developed profitably, thereby supporting its decision not to permit rezoning.
Because appellees failed to show a significant detriment to their rights as landowners under the present zoning, the zoning of the Property as R-85 is constitutional as applied to them, and the decision of the County not to rezone the Property should not have been disturbed by the trial court. Therefore, the trial court's ruling is clearly erroneous, and is hereby reversed. In making this ruling, we rely upon long-standing principles established by this Court's clear precedent, and we neither deviate from nor expand upon that precedent.
2. Because of our ruling in division one, we need not address the County's contention that the appellee landowners failed to satisfy their burden of showing a substantial detriment because they did not attempt to market the Property under its R-85 zoning.
Judgment reversed.
All the Justices concur, except HUNSTEIN, CARLEY and THOMPSON, JJ., who dissent.
The majority correctly states that our standard of review of the trial court's judgment in favor of the Landowners is the clearly erroneous test, but inconsistently bases its reversal of that judgment upon the existence of evidence to support the County's decision not to rezone the property. In my opinion, application of the correct standard of appellate review mandates an affirmance of the trial court's judgment in favor of the Landowners and against the County. Accordingly, I respectfully dissent.
" 'In zoning matters it is of fundamental importance to distinguish between two types of cases.' " Moon v. Cobb County, 256 Ga. 539, 350 S.E.2d 461 (1986). In one type, a special permit is sought under the terms set out in the ordinance. Because the property owner relies upon the ordinance itself, the validity of the ordinance is not an issue. See Dougherty County, Ga. v. Webb, 256 Ga. 474, 350 S.E.2d 457 (1986). In the other type, however, a constitutional attack is made against the zoning ordinance. Because the property owner attacks the ordinance itself, the presumption of constitutionality applies. See Gradous v. Bd. of Commissioners of Richmond County, 256 Ga. 469, 471, 349 S.E.2d 707 (1986).
The standard of appellate review is very different for each type of case. In the case wherein a special permit is sought under terms set out in a zoning ordinance, the superior court is bound by the facts presented to the local governing body. Moon v. Cobb County, supra at 539-540, 350 S.E.2d 461. However, where, as here, a constitutional attack is made against a zoning ordinance, "[t]he superior court determines the law and facts from matters...
To continue reading
Request your trial
-
Diversified Holdings, LLP v. City of Suwanee, S17A1140
...the existing zoning classification serves to deprive a landowner of property rights without due process of law. DeKalb Cty. v. Dobson, 267 Ga. 624, 626, 482 S.E.2d 239 (1997). That the property would be more valuable if rezoned borders on being irrelevant. Id. Instead, the only relevant evi......
-
RCG PROPERTIES v. City of Atlanta
...him, and is insubstantially related to the public health, safety, morality, and welfare." (Footnote omitted.) DeKalb County v. Dobson, 267 Ga. 624, 626(1), 482 S.E.2d 239 (1997). On the other hand, the grant or denial of a variance or a permit is generally considered an administrative or a ......
-
City of Atlanta v. Tap Associates
...507, 321 S.E.2d 335 (1984). 2. Guhl v. Holcomb Bridge Rd. Corp., 238 Ga. 322, 323, 232 S.E.2d 830 (1977). 3. See DeKalb County v. Dobson, 267 Ga. 624, 626, 482 S.E.2d 239 (1997). 4. See Gwinnett County v. Davis, 268 Ga. 653, 654, 492 S.E.2d 523 (1997); Gradous v. Board of Comm'rs, 256 Ga. 4......
-
Town of Tyrone v. TYRONE, LLC, S02A0484.
...of Hall Cty. v. Skelton, 248 Ga. 855, 857, 286 S.E.2d 729 (1982). 6. Wilson, 259 Ga. at 686, 386 S.E.2d 128. 7. DeKalb Cty. v. Dobson, 267 Ga. 624, 625, 482 S.E.2d 239 (1997); Brown v. Dougherty Cty., 250 Ga. 658, 659, 300 S.E.2d 509 (1983). 8. Holy Cross Lutheran Church v. Clayton Cty., 25......
-
Local Government Law - R. Perry Sentell, Jr.
...a quit-claim deed for the streets but informed the plaintiff that the sewer system did not meet its standards. Id. 82. Id. at 682, 482 S.E.2d at 239. The court reviewed the elements of dedication to include an offer, either express or implied, and an acceptance, either express or implied. I......