Parking Ass'n of Georgia, Inc. v. City of Atlanta, Ga.

• Decision Date: 28 November 1994
• Citation: 450 S.E.2d 200,264 Ga. 764
• Parties: , 63 USLW 2353 PARKING ASSOCIATION OF GEORGIA, INC. et al., v. CITY OF ATLANTA, GEORGIA. S94A0975.
• Court: Georgia Supreme Court

Page 200

450 S.E.2d 200

264 Ga. 764, 63 USLW 2353

PARKING ASSOCIATION OF GEORGIA, INC. et al., v. CITY OF ATLANTA, GEORGIA.

S94A0975.

Supreme Court of Georgia.

Nov. 28, 1994.

Reconsideration Denied Dec. 20, 1994.

David H. Flint, Mark W. Forsling, Schreeder, Wheeler & Flint, Atlanta, for Parking Ass'n of Georgia, Inc. v. City of Atlanta, Ga.

David D. Blum, Asst. City Atty., Robert L. Zoeckler, City Attorney's Office, Joe M. Harris, Asst. City Atty., Atlanta, for City of Atlanta, Ga.

Clifford E. Hardwick, IV, City Atty., Atlanta.

THOMPSON, Justice.

The City of Atlanta enacted a zoning ordinance aimed specifically at surface parking lots with 30 or more spaces in several downtown and midtown zoning districts. The ordinance requires minimum barrier curbs and landscaping areas equal to at least ten percent of the paved area within a lot, ground cover (shrubs, ivy, pine bark or similar landscape materials) and at least one tree for every eight parking spaces. Its stated purpose is to improve the beauty and aesthetic appeal of the City, promote public safety, and ameliorate air quality and water run-off problems. All costs of compliance with the ordinance are to be borne by the landowners; however, no landowner is required to reduce the number of parking spaces by more than three percent.

Plaintiffs, an association of companies managing or owning surface parking lots in the affected areas, as well as individual owners of affected parking lots, brought suit against the City seeking declaratory and injunctive relief on the grounds that the ordinance is unconstitutional and void. The superior court ruled in favor of the City and denied injunctive relief. Plaintiffs appealed.

1. The zoning ordinance does not authorize a permanent physical taking or occupation of plaintiffs' property by another; it merely regulates the use of plaintiffs' property. Compare Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426, 102 S.Ct. 3164, 3171, 73 L.Ed.2d 868 (1982) with Yee v. City of Escondido, 503 U.S. 519, ----, 112 S.Ct. 1522, 1526, 118 L.Ed.2d 153 (1992). Thus, the ordinance does not constitute a per se taking entitling plaintiffs to compensation. It follows that we must assess and weigh the purposes and economic effects of the ordinance to determine if it "exceeds the police power in regulating land use for zoning ... [and] run[s] afoul of the constitutional prohibition against condemnation of land for a public purpose without just compensation. [Cit.]" Fulton County v. Wallace, 260 Ga. 358, 360, 393 S.E.2d 241 (1990).

2. This state uses a balancing test to determine whether the

police power has been properly exercised. This 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., 238 Ga. 322, 232 S.E.2d 830 (1977). A zoning ordinance is presumptively valid, and this presumption can be rebutted only by clear and convincing evidence. Guhl v. Holcomb Bridge Rd. Corp., supra. The burden is on the plaintiff to come forward with clear and convincing evidence that the zoning presents a significant detriment to the landowner and is insubstantially related to the public health, safety, morality and welfare.

Gradous v. Board of Commrs., 256 Ga. 469, 470, 349 S.E.2d 707 (1986).

Plaintiffs failed to present clear and convincing evidence that the ordinance presents a significant detriment. Plaintiffs may experience a loss of profits due to a reduction in the number of available parking spaces ¹ and the costs of compliance; ² however, a zoning ordinance does not exceed the police power simply because it restricts the use of property, diminishes the value of property, or imposes costs in connection with the property. See Gradous v. Board of Commrs., supra at 471, 349 S.E.2d 707; Rockdale County v. Mitchell's Used Auto Parts, Inc., 243 Ga. 465, 254 S.E.2d 846 (1979). A loss of at most three percent of plaintiffs' parking spaces does not constitute a significant deprivation. Cf. Lamar Advertising of South Georgia, Inc. v. City of Albany, 260 Ga. 46, 389 S.E.2d 216 (1990) (sign ordinance which destroys substantial part of business without compensation is unconstitutional).

Plaintiffs also failed to present clear and convincing evidence that the ordinance is unsubstantially related to the public health, safety, morality and welfare. The ordinance was designed to regulate aesthetics, crime, water run-off, temperature and other environmental concerns. The means adopted have a real and substantial relation to the goals to be attained.

An ordinance is not unreasonable even if designed only to improve aesthetics.

[L]egislation based on aesthetics is within the public welfare aspect of the police power. 'The concept of the public welfare is broad and inclusive. (Cit.) The values it represents are spiritual as well as physical aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.' [Cits.]

H & H Operations, Inc. v. City of Peachtree City, 248 Ga. 500, 501, 283 S.E.2d 867 (1981).

"If the plaintiff does not meet the initial burden of showing both significant detriment and insubstantial relationship to the public health, safety, morality and welfare, there is no need for the governing authority to present any evidence justifying the zoning. [Cit.]" Gradous v. Board of Commrs., supra 256 Ga. at 471, 349 S.E.2d 707. Plaintiffs failed to meet either prong of this state's balancing test. The ordinance is constitutional and valid. ³

3. Plaintiffs assert the ordinance constitutes an unconstitutional denial of equal protection because it only applies to paved parking lots with 30 or more spaces in downtown and midtown zoning districts. We disagree.

A zoning ordinance does not offend the equal protection clauses of the State and Federal Constitutions if "it has some fair and substantial relation to the object of the legislation and furnishes a legitimate ground of differentiation. [Cit.]" Bailey Investment Co. v. Augusta-Richmond County Board of Zoning Appeals, 256 Ga. 186, 187, 345 S.E.2d 596 (1986). The larger lots have a far greater impact upon aesthetics, water run-off, temperature, pedestrian traffic and other health, safety and environmental concerns; the affected districts have the greatest concentration of parking lots. Thus, the ordinance rationally differentiates between larger and smaller parking lots and between affected and unaffected zoning districts. " 'If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.' " DeKalb County v. Chamblee Dunwoody Hotel Partnership, 248 Ga. 186, 190, 281 S.E.2d 525 (1981) (quoting Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926)).

Judgment affirmed.

All the Justices concur, except HUNT, C.J., and SEARS and CARLEY, JJ., who dissent.

SEARS, Justice, dissenting.

I disagree with the majority's application of the significant detriment test to this case. That test is essentially the same as the "economically viable use" test employed by the United States Supreme Court. See Ziegler, Rathkopf's The Law of Zoning and Planning, § 6.08. The significant detriment test looks to the land as a whole to evaluate a takings claim, as well as to factors to consider such as " 'the suitability of the subject property for the zoned purposes,' " Guhl v. Holcomb Bridge Road Corp., 238 Ga. 322, 323, 232 S.E.2d 830 (1977), and "the character of the neighborhood, the zoning, and the use of properties nearby," Ziegler, § 6.08, at 6-34. Although that test and some of its factors are well-suited to rezoning cases, they are not well-suited to cases such as this one in which a local government has sought to extract a benefit for the public from only a portion of a whole parcel of property. In such cases, courts have established an exception to the "economically viable use" or "significant detriment" takings standard.

[A] regulation may be held a taking, even though the owner is afforded an economically viable use of the property, under benefit-extraction taking analysis when the burden imposed by [the] regulation is found to be one that, as a matter of fairness and justice, should be borne by the public as a whole.

Ziegler, § 6.08, 6-29, n. 4.

This line of taking analysis reflects the...