GREATER ATLANTA H'BLDRS v. DeKalb County

• Citation: 277 Ga. 295,588 S.E.2d 694
• Decision Date: 10 November 2003
• Docket Number: No. S03A0552.,S03A0552.
• Parties: GREATER ATLANTA HOMEBUILDERS ASSOCIATION et al. v. DeKALB COUNTY et al.
• Court: Supreme Court of Georgia

588 S.E.2d 694

277 Ga. 295

GREATER ATLANTA HOMEBUILDERS ASSOCIATION et al. v. DeKALB COUNTY et al.

No. S03A0552.

Supreme Court of Georgia.

November 10, 2003.

Smith, Gambrell & Russell, LLP, Kathryn M. Zickert, Brian E. Daughdrill, Atlanta, for appellants.

Charles G. Hicks, William J. Linkous, III, DeKalb County, Jenkins & Olson, Frank E. Jenkins III, Peter R. Olson, Brandon L. Bowen, P.C., Cartersville, for appellees.

FLETCHER, Chief Justice.

This case involves a constitutional challenge to DeKalb County's Tree Ordinance. The trial court upheld the statute. Because the Tree Ordinance is not invalid as alleged by appellants, we affirm.

In February 1999, DeKalb County's Board of Commissioners passed a comprehensive Tree Protection Ordinance. The ordinance recognizes "the many benefits that can be directly attributable to trees" and that regulation of tree preservation "is necessary for the preservation of the public health, safety, general welfare, environment and aesthetics." The County concluded that new regulations were needed in order to "provide proper and sufficient regulation of the removal and/or replacement of trees as part of land development." Three weeks later, Greater Atlanta Homebuilders Association, a nonprofit trade association whose members develop real property and engage primarily in the construction of single-family residences, and RLR Associates, a corporation that owns property in DeKalb County and is involved in the development of real property and residential construction, filed this action challenging the ordinance.

Zoning Procedures Law

1. Appellants contend that the Tree Ordinance and its four amendments are invalid because they were not enacted in accordance with the Zoning Procedures Law, OCGA § 36-66-1, et seq., which imposes minimum due process standards upon local governments when they adopt or amend zoning ordinances.¹ A zoning ordinance is one that establishes "procedures and zones or districts ... which regulate the uses and development standards of property within such zones or districts."² Whether a local regulation is a zoning ordinance subject to the ZPL is determined by evaluating the regulation " as a whole to determine whether or not it involves dividing a governmental unit into zones or districts and applying different standards to such zones or districts in regard to property therein."³

In applying this standard, we conclude that the Tree Ordinance, viewed as a whole, does not regulate according to zones or districts. Instead the Tree Ordinance applies uniformly to all land in unincorporated DeKalb County by regulating the effect that development will have on tree coverage in the County. The Tree Ordinance applies to every building and development permit that allows land disturbance, regardless of the zoning district. The Tree Ordinance contains only three references to zones or districts.⁴ These limited references to districts do not turn the ordinance into a zoning ordinance in light of the fact that the majority of the ordinance's requirements apply uniformly to all land and to all land disturbance activities regardless of the location of that land within the County.

Takings Claims

2. Appellants contend that the Tree Ordinance effects a regulatory taking of their property without just compensation in violation of the Georgia and federal constitutions.⁵ The County contends that this challenge to the Tree Ordinance is not ripe for review because appellants have not exhausted administrative remedies. In determining ripeness, it is important to distinguish between "as applied" and "facial" challenges. "Before litigants seek a declaration by a court of equity that a[n] ... ordinance is unconstitutional as applied to their property, they must apply to the local authorities for relief."⁶ Facial challenges, however, have no ripeness requirement.⁷ Appellants have not shown that the Tree Ordinance has been applied to them in any way, and therefore, raise a facial challenge rather than an "as-applied" challenge. Accordingly, appellants' taking challenge is properly before the Court.

3. (a) In order to succeed in their facial challenge, appellants must show that the "ordinance does not substantially advance legitimate state interests ... or denies an owner economically viable use of his land."⁸ The Supreme Court has noted the "uphill battle" faced by a party bringing such a challenge.⁹ Appellants do not contend that the Tree Ordinance fails to substantially advance a legitimate state interest. Therefore, we focus on the second test—whether the ordinance deprives appellants of any economically viable use of their land.

Courts generally conclude that so long as an ordinance allows some permissible use, a party will not be able to satisfy its burden of showing a complete lack of economically viable use.¹⁰ For example, in Pope v. City of Atlanta,¹¹ this Court held that the landowner had not demonstrated the existence of a taking where she was prevented from building a tennis court within a stream corridor because the land use regulation did "not deprive her of all her rights in the property." Similarly, the Tree Ordinance does not destroy appellants' ability to develop its land; it only regulates the way in which new and existing trees must be managed during the development process. Appellants have failed to show that the Tree Ordinance destroys its ability to develop land, and the trial court's finding that appellants have not been deprived of all economically viable use is not clearly erroneous.

While the Tree Ordinance may impose some additional costs and thus diminish the ultimate value of appellants' land, "[m]any regulations restrict the use of property, diminish its value or cut off certain property rights, but no compensation for the property owner is required."¹² Furthermore, the Tree Ordinance provides for special exceptions and administrative appeals, which several courts have noted is sufficient to defeat a facial taking claim.¹³

(b) Appellants' reliance upon Dolan v. City of Tigard¹⁴ is misplaced. In Dolan, the United States Supreme Court placed the burden of justifying a land-use determination on the local government and required a showing of "rough proportionality" between the taking and the legitimate state interests. Dolan, however, is inapposite because it was an as-applied challenge to a City's requirement that an owner deed portions of her land to the city.¹⁵ In contrast, this case involves a facial challenge to a generally applicable land-use regulation. Additionally, in Parking Ass'n. v. City of Atlanta, we rejected applying Dolan in the context of an adjudicative decision rather than a legislative determination.¹⁶ Accordingly, we do not undertake Dolan's analysis.

(c) We need not dwell long on appellants' contention that a different analysis applies because each tree is a deedable piece of real property. The United States Supreme Court has characterized the approach appellants urge as "quite simply untenable"¹⁷ because "`[t]aking' jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated."¹⁸ Thus, in Keystone Bituminous, the Supreme Court rejected the argument that the takings analysis was altered by the fact that, under Pennsylvania law, the "support estate" is a separate interest in land that can be conveyed apart from any other interest.¹⁹ Similarly, the takings analysis is not altered in this case by the fact that each tree may be considered a separate property interest.

( d) Finally, Appellants argue that the Tree Ordinance constitutes a taking because it renders commercial timber harvest impractical. Appellants, however, have presented no evidence that any land has been "taken" by the Ordinance's effect on the commercial timber harvest.²⁰ Furthermore, there is no evidence that the Ordinance has "taken" the livelihood of anyone who engages in commercial timbering.

Accordingly, we affirm the trial court's grant of summary judgment against appellants' takings claim.

Due Process Claim

4. Appellants also contend that the Tree Ordinance violates due process by failing to provide ascertainable standards to guide the discretion granted to the County arborist in the tree protection plan approval process. This claim, however, is not ripe for review. Except in the context of protected First Amendment activity, a person seeking a permit will not be heard to complain that the regulation is vague until he has actually sought and been denied the permit.²¹ This Court has similarly held that a party lacks standing unless he can show "that the allegedly unconstitutional feature of the statute... has infringed his rights."²² In light of these bedrock principles, our consistent practice has been to address the sufficiency of standards to guide administrative discretion only in appeals stemming from the denial of a permit or license.²³ Because appellants cannot show any injury stemming from the allegedly vague provisions of the Tree Ordinance, these claims are premature.

Pre-emption Claim

5. Appellants also assert that the Tree Ordinance as a whole is pre-empted by OCGA § 12-6-24, which relates to commercial timber harvesting. Pretermitting whether appellants, who do not engage in commercial timber harvesting, have standing to assert this challenge,²⁴ we conclude that the state law does not preempt the Tree Ordinance. The legislature amended OCGA § 12-6-24, effective June 3, 2003, to demonstrate its clear intent that it "shall not preclude counties ... from enacting and enforcing tree ordinances."²⁵ The statute applies only to "timber harvesting operations which qualify as forestry land management practices or agricultural operations ... not incidental to development, on tracts which are zoned for or used for forestry, silvicultural, or agricultural purposes."²⁶ Because the only regulations in the Tree Ordinance...