Town of Tyrone v. TYRONE, LLC, S02A0484.
| Decision Date | 02 July 2002 |
| Docket Number | No. S02A0484.,S02A0484. |
| Citation | 565 S.E.2d 806,275 Ga. 383 |
| Parties | TOWN OF TYRONE et al. v. TYRONE, LLC, et al. |
| Court | Georgia Supreme Court |
565 S.E.2d 806
275 Ga. 383
v.
TYRONE, LLC, et al
No. S02A0484.
Supreme Court of Georgia.
July 2, 2002.
Reconsideration Denied July 26, 2002.
Rosenzweig, Jones & MacNabb, George C. Rosenzweig, Sara A. Evans, Newnan, for appellee.
FLETCHER, Chief Justice.
The trial court declared the zoning on a parcel of property unconstitutional and ordered the town of Tyrone, Georgia to rezone the property to a particular classification and grant certain variances. We granted the Town's application for discretionary review, and we now affirm in part and reverse in part. The trial court exceeded its authority in ordering the property rezoned to a particular zoning designation, and the evidence before the court supported a finding that the zoning was unconstitutional only for some of the property.
Tyrone has a population of approximately 3,800. It is west of Atlanta, with Peachtree City a few miles to the south and Palmetto,
A developer of shopping centers entered option contracts to purchase roughly 75 acres of land in Tyrone. The property is bounded by State Route 74 on the east, Tyrone Road to the north, and an active railroad line on the west. To the south are other privately-owned properties, including a horse farm. The entire property was designated conservation-residential under the comprehensive land use plan and zoned agricultural-residential.
The Developer proposed to build a shopping center on the property with various commercial establishments, including a grocery store in excess of 50,000 square feet. He offered to donate a portion of the land so that the town could relocate its town hall from its current location in historic downtown Tyrone to this new development, which the Developer proposed to call "Tyrone Towne Square." The Developer also suggested that the Town use the donated land to relocate the town library and establish a post office. To accomplish his vision of the new Tyrone Towne Square, the Developer requested, in early 2000, that the Town change the designation of the property on the land use plan to highway-commercial and rezone the property to commercial.
After two hearings, the town council denied the Developer's [275 Ga. 384] request. The council, however, did rezone 22 acres of the property from agricultural-residential to office-institutional. The Developer sued the Town in superior court, and, following a hearing, the trial court declared the zoning on all the property unconstitutional. As part of its order, the trial court also ordered the town to rezone the property as commercial and grant the Developer certain variances from the restrictions that accompany a commercial zoning designation.
1. We begin by examining the trial court's order that the Town rezone the property as commercial. "[C]ourts have no power to zone or rezone property."1 Rather, the "power to zone and rezone property is vested in the county and city governing authorities."2 A court's role in zoning disputes is to determine whether the current zoning amounts to an unconstitutional taking, not which zoning classification should apply to a particular parcel of property.3
Here, the trial court exceeded its judicial power when it ordered the Town to rezone the property to a specific designation.4 Once the trial court concluded that the current zoning was unconstitutional, it should have ordered the town council to rezone the property to a constitutional designation.5 If the council failed to rezone the property to a constitutional designation, then the property owners could have sought review of the new zoning in superior court or requested the trial court to sanction the council's members.6 Accordingly, we reverse that portion of the trial court's order that required the Town to rezone the property to a particular zoning designation.
2. As part of his application, the Developer requested certain variances and special exceptions from the commercial zoning requirements. The trial court ordered the Town to grant the variances, but did not rule on the special exceptions.
The type of zoning that applies to a parcel of property generally must be determined before the appropriateness of a variance from the zoning can be decided. Otherwise,
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