Jervey v. City of Marietta, S02A0036.

• Decision Date: 04 February 2002
• Docket Number: No. S02A0036.,S02A0036.
• Citation: 559 S.E.2d 457,274 Ga. 754
• Parties: JERVEY v. CITY OF MARIETTA et al.
• Court: Georgia Supreme Court

559 S.E.2d 457

274 Ga. 754

JERVEY v. CITY OF MARIETTA et al.

No. S02A0036.

Supreme Court of Georgia.

February 4, 2002.

Moore, Ingram, Johnson & Steele, John H. Moore, John K. Moore, Marietta, for appellant.

Haynie, Litchfield & Crane, Douglas R. Haynie, H. Scott Gregory, Jr., Marietta, for appellee.

CARLEY, Justice.

Richard Jervey filed an application to rezone 2.278 acres in Marietta, at the major intersection of the 120 Loop/South Marietta parkway, Powder Springs Road, and Reynolds Street. The property is currently classified as office and institutional (OI), and Jervey sought rezoning to the neighborhood retail commercial (NRC) classification, so as to permit the development of a Walgreen's store. The City denied the rezoning application, and Jervey brought this action, alleging an unconstitutional taking. The trial court entered judgment in favor of the City, and we granted this discretionary appeal to consider whether the trial court applied an erroneous legal standard and whether the evidence demanded a finding that there was an unconstitutional taking of the subject property.

1. In its order, the trial court twice characterized the relevant determination as being whether the City's denial of NRC rezoning was an unconstitutional taking. The actual standard for determining the existence of an unconstitutional taking is whether the current OI zoning classification causes the property owner a significant detriment having no substantial relation to the public health, safety, morality, and welfare. Guhl v. Holcomb Bridge Road Corp., 238 Ga. 322, 232 S.E.2d 830 (1977). In applying that standard, "[t]he validity of each zoning ordinance must be determined on the facts applicable to the particular case, but certain general lines of inquiry [into six enumerated factors] have been regarded as relevant...." Guhl, supra at 323, 232 S.E.2d 830.

The trial court cited Guhl, referred to the relevant factors listed therein, and found that the denial of NRC rezoning did not constitute an unconstitutional taking of the property. Reviewing the entirety of the order, the trial court based its ruling on the applicable legal principles. See Maree v. Phillips, 272 Ga. 52, 55(5), 525 S.E.2d 94 (2000).

2. To prevail, Jervey must show that the OI classification results in a significant detriment to him and that it has no substantial relation to public welfare. Holy Cross Lutheran Church v. Clayton County, 257 Ga. 21(2)(a), 354 S.E.2d 151 (1987).

"This state uses a balancing test to determine whether the police power has been properly exercised. The test weighs the benefit to the public against the detriment to the individual. The factors to be considered are set forth in Guhl v. Holcomb Bridge Rd. Corp., (cit.). A zoning ordinance is presumptively valid, and this presumption can be rebutted only by clear and convincing evidence. [Cit.]...." [Cit.]

City of Roswell v. Heavy Machines Co., 256 Ga. 472, 474, 349 S.E.2d 743 (1986). The City classifies the subject property as OI in order to provide a buffer for an adjoining residential area. Maintaining the integrity of existing residential neighborhoods is a valid public interest. Holy Cross Lutheran Church v. Clayton County, supra at 23(2)(b), 354 S.E.2d 151. In resolving zoning controversies that involve fringe areas, "`the local governing body is the more appropriate one to shape and control the local environment according to the best interests of the...