Warshaw v. City of Atlanta

• Decision Date: 25 January 1983
• Docket Number: No. 39249,39249
• Citation: 250 Ga. 535,299 S.E.2d 552
• Parties: WARSHAW et al. v. CITY OF ATLANTA et al.
• Court: Georgia Supreme Court

Page 552

299 S.E.2d 552

250 Ga. 535

WARSHAW et al. v. CITY OF ATLANTA et al.

No. 39249.

Supreme Court of Georgia.

Jan. 25, 1983.

Rehearing Denied Feb. 15, 1983.

Max Olim, Richard H. Siegel, Gershon, Ruden, Pindar & Olim, Atlanta, for Nat A. Warshaw et al.

Marva Jones Brooks, Thomas A. Bowman, Irmina Rivero Owens, Atlanta, for City of Atlanta et al.

SMITH, Justice.

Appellants Nat and Elaine Warshaw own property located at 2815 Peachtree Road, N.E., and have operated a strip-type shopping center known as "Garden Hills Shopping Center" there for approximately forty years. In 1954 appellee City of Atlanta zoned the subject property A-2 (Apartment Dwelling District). Because the shopping center predated the 1954 zoning ordinance, appellant's business has continued operating as a legal, non-conforming commercial use of the land. In January 1980, appellants requested rezoning to C-1-C (Commercial Business District Conditional). The City's Bureau of Planning reviewed appellant's rezoning application and recommended approval, with certain conditions attached to the rezoning. Appellants then amended their application to add six conditions (including agreements not to enlarge the present shopping center, to pave and mark existing parking spaces, and not to erect new signs). In June 1980, the Zoning Review Board held a public hearing on the application. At that hearing the president of a neighborhood association in the affected area voiced concern about inadequate parking and the late hours kept by the shopping center's tenants, and appellants' attorney responded to these concerns. The Board recommended approval with the six conditions submitted by appellants. The ordinance to rezone appellants' land came up for adoption at the July 21, 1980 meeting of the Atlanta City Council. During discussion a council member moved orally to amend the ordinance to add Conditions 8 (requiring additional parking) and 9 (requiring that the shopping center businesses shut down between the hours of "12:00 p.m. and 7:00 a.m."). So amended, the ordinance was passed.

The Warshaws do not dispute the legality of the C-1-C zoning (which they requested), but challenge the validity of Conditions 8 [250 Ga. 536] and 9. The trial court granted summary judgment for appellees. On appeal the Warshaws contend that (1) Conditions 8 and 9 amount to an unconstitutional "taking" of their property; (2) the Council's actions violated applicable procedural rules for amending zoning ordinances; and (3) the conditions are so vague as to be unenforceable. We affirm.

Conditional zoning is permissible in Georgia, and "such conditions will be upheld when they were imposed pursuant to the police power for the protection or benefit of neighbors to ameliorate the effects of the zoning change." Cross v. Hall County, 238 Ga. 709, 713, 235 S.E.2d 379 (1977). Generally, zoning laws enjoy a presumption of validity on review. Flournoy v. City of Brunswick, 248 Ga. 573, 285 S.E.2d 16 (1981). Appellants' evidence on the "taking" point consisted of an expert affidavit to the effect that the conditions "work a substantial and significant detriment" to appellants as landowners. To counter this evidence, appellees offer the transcript of the June 1980 Zoning Board meeting. Conditions 8 and 9 were properly imposed to address legitimate neighborhood concerns about parking and late hours of operation. Appellants have failed to show by clear and convincing evidence that the City Council's action was arbitrary or unreasonable. See Cross v. Hall Co., supra. "[T]he local governing body is the more appropriate one to shape and control the local environment according to the best interests of the locality and its citizens." Westbrook v. Board of Adjustment, 245 Ga. 15, 17, 262 S.E.2d 785 (1980).

Citing Jennings v. Suggs, 180 Ga. 141, 178 S.E. 282 (1935), a...