Recently,
a type of ordinance that has been frequently passed by local governments is to
expand the stream buffer from 25 feet to 75 feet. This means that if a person
owns land with, what the government states is a stream, then that owner cannot
build within 75 feet of the stream. It does not matter that the land may have
been bought a long time ago for investment or for a retirement dream home. A
major problem arises when a home or a business simply cannot fit on the lot
with a 75 foot stream buffer. In many cases, local zoning requires that a home
be a certain size and as a result can only fit under a 25 foot stream buffer,
not a 75 foot buffer.
So
what happens when a local ordinance ruins a landowner's potential uses for the
property? What does the government have to pay?
I. SHORT ANSWER
If
a government dramatically reduces the value of a landowner's property with a
regulation, then under most scenarios, the landowner is not compensated for his loss or reduction
in fair market value. The legitimate concern over the stream buffer expansion
is a political issue and should be vigorously attacked by its opponents in the
local hearing before it becomes law.
In
regards to legal recourse, a regulation like the stream buffer expansion
regulation is not a taking (i.e. the government does not have to pay the
landowner) unless it results in: 1) a significant detriment not substantially related to public benefit, 2) a
complete taking or 3) a taking of a "vested right." This high burden
on a landowner can require a very uphill battle on legal grounds.
This
is different than a DOT taking because the DOT is using the land to allow for
public access and there is a specific statutory
scheme in place for DOT takings.
II. SENATE BILL 30
Many
find it frustrating that there is not a clear remedy for a landowner that has some of its land restricted from use, when
there is a remedy for the same owner when all of the land is taken. This makes zero
sense and Senate Bill 30 (SB 30) was designed to correct this, but it was not
passed into law.
In
the 2005-2006 session of the Georgia Legislature, Senate Bill 30 was introduced
and approved by the Senate, but was stopped by a procedural move by the
supporters of the local governments not wanting to actually pay for land
damaged by their policies.
SB
30 was to set up a system similar to takings that occur in power line cases and
have a special master (an informal judge) determine the value of the inverse
condemnation (regulatory taking). Unfortunately, Georgia did not enact this
legislation to provide just compensation to those dramatically affect by the
government ruining the fair market value of their land.
III. POLITICAL ARGUMENTS
There
are many political arguments that have been made to try to prevent to passage
of local stream buffer ordinances, such as:
A
landowner's land is often like a 401(k) retirement plan, upon which families
look to retire on the profits of the land or on the land itself. The action by
local government is tantamount to taking away the retirement of its citizens.
Clearly, it is not right to take someone's stocks and bonds, so why is it right
to take their land's fair market value without paying for it?
Where
is the scientific evidence to support the position that a larger 75 foot buffer
is better than a 25 foot buffer? There is a potential argument that without the
science to back it up, a landowner suffers a significant detriment not substantially related to public benefit (which is
the judicial standard mentioned above).
It
is important to remember the basic language of the 5th Amendment:
No person shall... be deprived of life, liberty, or
property, without due process of law; nor shall private property be taken for
public use, without just compensation.
IV. ZONING/REGULATORY TAKING (GEORGIA)
The
stream buffer regulation is through the local government's power to enact
zoning regulations. If the zoning is enacted, then one most likely would have
to seek a variance.
A. LEGAL STANDARD THAT MUST BE MET:
A
landowner looking to challenge the stream buffer would have to establish that
the council's action was an unconstitutional taking of the property which
caused the property a significant detriment. A significant detriment is not that the property could be used for
highest and best usage, but whether the action by the council would mean that
the property, as zoned, had no realistic viable economic purpose or use.
The
landowner would have to show (1) a significant detriment to the property and
(2) that the council's decision was not substantially related to public health, safety,
morality and welfare, (3) then after the landowner has met the burden of steps
1 and 2, then the local authority has a chance to rebut and explain their decision
as it relates to public health, safety, morality and welfare. Only if the
landowner meets the first two steps does the local authority have to come forth
with evidence regarding the third.
B. AUTHORITY:
The
Supreme Court of Georgia has addressed the issue of zoning on numerous
occasions and generally speaking, the Court recognizes and adheres to the
separation of powers principle in that the local council or commission is an
elected body which is charged with the responsibility for zoning.Through the separation of powers, the
Court allows great latitude for elected officials in making decisions regarding
how the city or county will treat zoning issues. However, the local authority's
responsibility and power to zone is not absolute and the Court requires that
the U.S. and Georgia Constitutions be followed in regards to a person's
property rights not being taken from them without due process of law.
In
the cases from the Georgia Supreme Court, many litigants made the mistake of
arguing that their property should be re-zoned because the property owners were
entitled to the "highest and best use". The Supreme Court
has repeatedly denied this as meeting the constitutional standard and has
reasoned that just because property could be used for a more profitable
purpose, does not mean that it is a constitutional right.
Barrett v. Hanby, 235 Ga. 262, Supreme Court of Georgia, (1975), if a
zoning regulation results in relatively little gain or benefit to the public
while inflicting serious injury or loss to the owner, such regulation is
confiscatory and void. It suffices to void it that damage to the owner is
significant and is not justified by the benefit to the public.
DeKalb County v. Albritton Properties Southeast, 256 Ga. 103 (1986), that the land in question certainly
retained some value as zoned, and overall, the evidence established the significant
detriment required to
be established under Georgia law.
Flournoy v. City of Brunswick, 248 Ga. 573 (1981), another factor as whether the
existing zoning is causing a diminution in value of the subject property as
compared to property similarly zoned. The property owners were unable to
show by clear and convincing evidence that the current zoning had an
insubstantial relationship to the governing public benefit. The fact that there already exist
several encroachments into the neighborhood is good reason for the City
Commission to watch and regulate this neighborhood carefully in order to preserve
its integrity. The local government has drawn the
line as to the encroachments and the landowners have not demonstrated by clear
and convincing evidence that the denial of their zoning request was so
unreasonable as to constitute and unconstitutional taking of their property.
Guhl v. Holcomb Bridge Road Corporation, 238 Ga. 322 (1977), the Court outlined factors to
look at when the validity of each zoning ordinance is tested and the general
lines in which the appellate court should review the matter. These standards
are: (1) existing uses and zoning of nearby property (2) the extent to which
the property values are diminished by the particular zoning restrictions (3)
the extent to which the obstruction of property values of the Plaintiffs
promotes the health, safety, morals or general welfare of the public (4) the
wealth of gain to the public as compared to the hardship imposed by the
individual property owner (5) the suitability of the subject property for the
zoned purposes and (6) the length of time the property has been vacant as zoned
considered in the context of land development in the area and vicinity of the
property.
In
applying the above standards, it is important to remember that it is not the
"highest and best use" of the property, but that the current zoning
renders the property essentially or practically undevelopable under the current zoning.
Legacy Investment Group, LLC v. Kenn, 279 Ga.
778 (2005) - Testimony that property would be worth more if rezoned is
insufficient to prove a significant detriment since a more intense use of the
land due to a rezoning will inevitably increase the value of the land. The
burden is to show by clear and convincing evidence that the existing zoning (1) causes
the property a significant detriment and (2) is not substantially related to
the public's health, safety, morality and welfare. Evidence
that property cannot feasibly be developed under its existing zoning supports
the finding that existing zoning imposes a significant detriment on the owner
(whether there is a viable economic use of the property under the current
zoning).
Town of Tyrone v. Tyrone, LLC, 275 Ga. 383 (2002), the question is not whether
re-zoning would increase the value of the land; the question is whether the
existing zoning classification could deprive the landowner without due process
of law. The critical evidence is the value of
the land as zoned. Zoning need not render property
worthless before an unconstitutional deprivation occurs. A significant
detriment is not established by evidence only that it would be difficult for
the owner to develop the property under its existing zoning or that the owner
will suffer economic harm unless the property is rezoned. The developer in this case was not
able to show by clear and convincing evidence that the property could not
developed under the current zoning level.
DeKalb County v. Chamblee Dunwoody Hotel Partnership, 248 Ga.
186 (1981): Evidence of the subject property would be more valuable if rezoned
for use at a higher zoning standard borders on being irrelevant. The
judicial standard is not whether there was evidence to support the trial
court's decision, but whether there was evidence to support the county's
decision. This case was one where the county addressed the third step and
showed that the property as zoned had substantial value and that the zoning
bears a substantial relationship to the public welfare by providing a buffer
area between single family residence areas and non-residential uses.
Henry County v. Tim Jones Properties, Inc., 271 Ga.
190 (2000): Landowner filed a Declaratory Judgment arguing that the denial of
the re-zoning was so arbitrary and capricious as to amount to an
unconstitutional taking. It was unfeasible to develop the entire tract for
commercial use or to develop the property with lots as large as the zoning
classification dictated in light of the development of like and surrounding
tracts. The property owner has the burden of
showing the zoning classification under attack is so detrimental to the owner
and insubstantially related to the public health, safety, morality and welfare,
as to amount to an unconstitutional taking. That is an arbitrary confiscation
of the owner's property without compensation by the governing authority.
V. FEDERAL CONSTITUTIONAL STARDARD
The
property owner must show that the owner has been deprived of all economic use
for a taking to have occur. Corn v. City of Lauderdale Lakes,
95 F.3d 1066 (11th Cir.
1996).
VI. VESTED RIGHTS
If
a landowner can show an "approved development plan"
and "substantial expenditures" being made in reliance upon the
approved development plan that
would be extremely helpful. Essentially, if no plan is in place prior to the
passage of the stream buffer ordinance, then it may put a landowner into a race
to achieve an approved plan before the new ordinance is passed.
CITATION OF AUTHORITY:
In
the Georgia Supreme Court case of W.M.M. Properties, Inc. v. Cobb County,
255 Ga. 436 (1986) - The Court rule that if a person has vested rights pursuant
to a development plan duly approved by the zoning authority, then such approval
gave the landowner the right to develop the property as zoned at the time of
the approval. That right became vested when
substantial expenditures were made in regards to the property and the
development plan.
Meeks v. City of Buford, 275 Ga.
585 (2002) - The Court found that in order for a landowner to have "vested
rights", he must have in good faith have made substantial change of
position, made substantial expenditures or incurred a substantial obligation.
City of Duluth v. Riverbrooke Property, Inc., 233 Ga.
App. 46 (1998) - The developer had provided the homeowner's association a lake,
clubhouse and amenities in reliance upon the approved development plan. The
Court of Appeals ruled that if a development plan is approved and substantial
expenditures are made, then it is immaterial that the subdivision was done in phases
and that the developer can rely upon the vested rights and expenditures even
for long term projects. Laws can not be made retroactive when a person has
acquired vested rights in property.
North Georgia Mountain Crisis Network, Inc. v. City
of Blueridge, 248 Ga. App. 450 (2001) - The purchase of land by
itself does not confer vested right to a particular use upon the purchaser.
VII. CONCLUSION
When
a stream buffer is extended via ordinance and that new law affects a
landowner's property value, then that landowner is most likely in a for an
uphill legal battle in an effort to gain fair compensation. However, like many
things in life, sometimes the wrong is too little to fight over. Then again,
sometimes, the landowner is forced to fight due to a complete ruining of a
valuable land's fair market value.
Source:
weekendmorningbuzz.com
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