Sunday, March 09, 2014

Zoning decisions: Why can't they just say no?

by Hatcher Hurd / The Milton Herald

March 04, 2014

As sometimes happens, I get emails from people who want to know why there is always so much contention about local zoning cases. They often see the decision as clear-cut (their side).

Why then is it so difficult for a city council to decide what to do in a particular zoning case? If dozens of city residents turn out to oppose it, shouldn't that be a clear signal to deny it?

In other words, why can't the city just say no?

This is not unusual since for many attendees it is their first foray into the arcane world of the city zoning arena. Regardless, the applicant is almost always the bad guy.

The owner of the property and the developer want to build a subdivision, say, on a road that is already full of subdivisions. Traffic is almost gridlocked every morning and evening with everyone going and coming from work, not to mention the school buses.

Many residents naturally don't want more crowding and congestion; others speak of enjoying the natural beauty of the applicant's property and how developing it would despoil the area.

Then why can't a city council simply inform this guy that the city is full-up on this road and tell him no dice?

These are some of the many objections raised in zoning cases. While I am not an expert by any means, in 29 years, I have covered more than 8,000 zoning cases in Fulton, DeKalb, Fayette, Forsyth and Paulding counties and the cities therein. Therefore, I can call on a lot of experience.

If the applicants look confident, it starts with Georgia law that strongly favors the individual's right to develop one's property.

If owners intend to use the land in much the same manner and at the same density as the developed property around them, they know Georgia law and the courts are on their side. To deny a property owner from developing his land in the same manner as his neighbors is usually deemed a "taking" of the value of their land in court.

Communities are required to create a comprehensive land use plan (CLUP) that gives all property owners a reasonable expectation of what they and their neighbors can do with their land.

A more intense use than allowed under the CLUP requires approval of a rezoning or a variance. This is to allow some leeway that might be due to unusual topographical features or other extenuating circumstances that recognize no land use plan can anticipate every eventuality. But the farther one strays from the CLUP, the riskier approval is.

The CLUP is the biggest tool a city has in preserving the property rights of applicants and the neighboring properties. It is also the best way for cities to avoid a property lawsuit. Judges weigh a city's reliance on the CLUP heavily in making zoning decisions.

A property may not have the same zoning as across the street when the CLUP is made. But if both sides of the street are entitled to the same range of uses under the CLUP – such as two units per acre – then both sides of the street can expect to exercise the same or similar uses under the CLUP.

Thus, while the neighbors perceive they are "negatively affected" by the new development, if the applicant's plan falls within the CLUP's guidelines – and is for instance the same development and density the neighbors have – any redress for those negatives normally must come from the city, not the applicant.

He has the same right to use the streets and other amenities that his neighbors do.

The city's responsibilities might mean more traffic lights, widening roads, improving intersections or whatever the city deems necessary, practical and affordable.

A city can't say there is no room for the applicant's project because he was merely the last one to build. Zoning is not a land rush where the city can stop a development or reduce the density. That is what the lawyers call "arbitrary and capricious," and judges tend to agree.

As for the investment that builders make in surveying the land, developing home elevations and other drawings, it is simply due diligence on the developer's part to understand the soundness of the investment.

For most of us, we are buying one home in an established subdivision. We already know what the house looks like, we know where the closets are, how big the yard is and what the amenities are.

But the developer has to know down to the square foot where it all will fit, how many homes it will yield. Obviously, it is often in the applicant's and developer's interests to maximize the density of the property. That is not the city's job.

Other factors such as stream buffers affect buildable area, and the city is entitled to reduce density to reflect that. It must decide what is best for all while upholding the CLUP.

A city planning commission and city planning staff are recommending bodies, and only the city councils have final say.

The council is caught in the middle most times in a contentious rezoning, and it is their job to be fair and equitable in all cases. Yes, there will be added congestion and more students for the schools. New development will also contribute to the tax digest, the sales tax and to the overall economy of the city.

It will be up to the council to determine how best to mitigate the negatives while exploiting the positives. City councils often wind up pleasing no one, and that probably means they did their job well.

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