Lead Opinion
This сase presents a zoning dispute between the Appellant Diversified Holdings, LLP (“Diversified”) and the City of Suwanee (“the City”) regarding the status of 30 acres of undeveloped land located in the City (“Property”). We hold that because Diversified seeks review from an adjudicative decision made by a local government body acting in an administrative role, an application for discretionary appeal was required. Because Diversified did file an application for discretionary review, which we granted, we have jurisdiction over its appeal. On the merits of the issues presented, we affirm the trial court’s decision that there was no error in denying Diversified’s application to rezone the Property But we clarify that the “substantially advances” standard that derives from constitutional due process guarantees has no place in an eminent domain or inverse condemnation proceeding. Consequently, where a landowner claims harm from a particulаr zoning classification, inverse condemnation is not an available remedy unless the landowner can meet the separate and distinct requirements for such a claim. Because we affirm the trial court’s decision that the denial of Diversified’s application was not arbitrary or capricious, we do not reach the City’s contention on cross-appeal that the trial court erred in concluding that Diversified showed a substantial detriment based on the value of the Property as currently zoned versus its value if rezoned.
I.
The Property is zoned for commercial use in accordance with the City’s 2030 Comprehensive Plan. The City’s comprehensive plan envisions that the Property will be used for high density, high intensity office space. Although the Property is in a largely commercial area, Diversified insists that for the past 26 years it has been unable to sell the Property as zoned, but has received multiple purchase offers contingent upon the Property being rezonеd for multi-family use.
Diversified then filed suit in Gwinnett County Superior Court, alleging that the City’s decision constituted an unconstitutional taking of the Property.
After a bench trial, thе trial court made the following findings. Since 2012, Diversified has used a broker who undertook a marketing campaign to sell the Property. Although it has not had success marketing the Property as a commercial property, Diversified has received numerous inquiries from potential purchasers who are interested in developing the Property for multi-family use. Every contract that Diversified has entered into contained contingencies that required the City to rezone or grant a special use permit. Ultimately, none of those contracts closed. The parties agree that due to steep topography and streams, not all of the Property can be feasibly developed, and rezoning would permit Diversified to develop the most acreage possible. Indeed, the trial court concluded that the fair market value of the Property would increase tremendously if it were rezoned: As currently zoned, the Property has a fair market value between $600,000 аnd $1.5 million; if rezoned for multi-family use, the Property would have a fair market value of approximately $5.9 million.
The trial court found that Diversified carried its burden to show by clear and convincing evidence that the City’s current zoning of the Property has caused Diversified a significant detriment. The trial court also found, however, that the current zoning is substantially related to the public health, safety, morality, and welfare, because the existing commercial zoning is compatible with surrounding commercial uses and is consistent with the City’s comprehensive plan and economic development. The trial court concluded that the consistency of the existing zoning with the City’s long-term planning goals demonstrates a substantial benefit to the public welfare. For example, in the trial court’s view, the lack of sidewalks on the Property would pose an unreasonable and unsafe risk for persons who would reside in the proposed apartment development, and there is a reasonablе and valid concern that apartment dwellers would face a potential for increased nighttime crimes because the complex would be adjacent to a liquor store, two motels, and a Walmart.
In sum, the trial court found that Diversified had not carried its burden to show that the current zoning was not substantially related to public health, safety, and welfare. Accordingly, the trial court’s order concluded that the City’s determination that the current zoning regulation was not improper as applied to Diversified’s property was not arbitrary, capricious, or without rational basis. The trial court specifically stated that the
Out of an abundance of caution, Diversified then filed both a direct appeal and an application for discretionary appeal from the trial court’s order. The City filed a cross-appeal. This Court granted Diversified’s application for discretionary appeal and posed a single question: Is a party seeking to appeal a superior court’s ruling on an inverse condemnation claim required to file a discretionary application if that claim is based on a local board’s zoning decision? In addition to answering that question by asserting that direct appeal is lawful, Diversified contends that (1) the trial court erred in determining that the Property’s current zoning is substantially related to public health, safety, and welfare, and (2) the trial court erred in concluding that the City had demonstrated a justification for the current zoning that is reasonably related to the public interest. In its cross-appeal, the City contends that the trial court erred in determining that Diversified showed a significant detriment based on the Property’s value as currently zoned when compared to its value if rezoned.
II.
We turn first to the question of jurisdiction and appellate procedure that was presented to the parties, that is, whether а party seeking to appeal a superior court’s ruling on an inverse condemnation claim is required to file a discretionary application when that claim is based on a local board’s zoning decision.
That provision requires an application for a certain class of cases:
Appeals from decisions of the superior courts reviewing decisions of the State Board of Workers’ Compensation, the State Board of Education, auditors, state and local administrative agencies, and lower courts by certiorari or de nоvo proceedings; provided, however, that this provision shall not apply to decisions of the Public Service Commission and probate courts and to cases involving ad valorem taxes and condemnations [.]
We recently reiterated that boards of commissioners are acting as administrative agencies under OCGA § 5-6-35 (a) (1) when they are “performing a function that is ‘the equivalent of the function of an administrative agency.’ ” Schumacher v. City of Roswell,
As the opinion in International Knights recognized, “ ‘the line between legislation and adjudication is not always easy to draw.’ ” Id. at 401 (quoting LC&S, Inc. v. Warren County Area Plan Comm.,
[a] dministrative determinations of a legislative nature are prospective in application, general in application, and often marked by a general factual inquiry that is not specific to the unique character, activities or circumstances of any particular person, ... [determinations of an adjudicative nature, on the other hand, are immediate in application, specific in application, and commonly involve an assessment of facts about the parties and their activities, businesses, and properties.
Intl. Knights,
An adjudicative decision can be quasi-judicial in nature and is characterized by proceedings that inquire into the facts and circumstances of the party (or parties) appearing before the decisiоn maker.
Years before we focused on the distinction between adjudicativе, legislative, and executive decisions in the context of OCGA § 5-6-35 (a), this Court announced that “all zoning cases appealed either to the Court of Appeals or the Supreme Court of Georgia must. . . come by application.” Trend Dev. Corp. v. Douglas County,
Recently, in Schumacher, we determined that certain challenges to thе exercise of legislative power do not fit within Trend's definition of “zoning cases,” although we noted that Trend itself involved the sort of individualized determination that we would generally consider a “decision” under the discretionary application statute. Schumacher,
Schumacher found that “a stand-alone lawsuit challenging an ordinance as facially invalid—unconnected to any individualized determination about a particular property—is not a ‘zoning case.’ ” Id. at 635. But an appeal from a superior court order reviewing a local government decision denying an application to rezone a specific property differs from an appeal from a lawsuit that challenges the enactment of a code of development or zoning code. See id. (contrаsting lawsuits challenging the legislative decision underlying the enactment of a development code with suits seeking individualized zoning-related relief). These distinctions are relevant. The enactment of a development or zoning code is, quintes sentially, a legislative action that is prospective in application. Id. at 637. In contrast, an application to rezone a particular parcel like the application involved here involves an individualized determination based on the character and circumstances of that particular parcel of land. A landowner’s challenge that seeks recognition that a zoning ordinance is unlawful with respect to a particular parcel of land thus is the type of individualized application of law to facts and circumstances that constitutes an adjudicative decision and requires a discretionary application. S ee Jervey,
Here, the superior court’s order contains a lengthy description of the Property, details Diversified’s efforts to sell the Property, discusses the topography and surrounding areas, and analyzes factors relating to the use and value of the Property. Diversified’s complaint alleges that the current zoning is unlawful for this property, not that the adopted zoning scheme is unlawful for any property And the City’s decision to reject that claim was immediate in application, specific in effect, and involved an individualized assessment of the Property. City of Cumming v. Flowers,
What’s more, Diversified has had the opportunity to be heard by two tribunals in this case.
The analysis in Division IV below only confirms that the local authority’s decision is adjudicative in nature. The inquiry in this type of request is a fact-specific one, evaluating the balance between factors to conclude whether a zoning ordinance substantially burdens a property owner in the first place, and, if it does, whether that same ordinance is also substantially related to the public health, safety, morality, or general welfare. See infra pp. 611-614. And this Court plainly has no authority to “legislate” for a local zoning authority should we determine that the authority’s decision was incorrect. But what we can do, and what petitioners ask for us to do, is adjudicate whether a particular zoning ordinance is unconstitutional as applied to a particular piece of land. That leaves the ultimate remedial measures open to the judgment of the zoning authority, which may or may not choose to take (or recommend) legislative action. Nonetheless, its decision in the first instance, just like ours, was adjudicative in nature.
Accordingly, and without addressing whether an appeal from a true inverse condemnation proceeding would require a discretionary application, we conclude that the present appeal, which is from a superior court order affirming a local zoning board’s decision that the zoning regulations applied to a particular piece of property are not unlawful, is the type of individualized determination that remains subject to the application procedure set out in OCGA § 5-6-35 (a) (1).
III.
We now turn to the proper application of the law to the claims in this case, which have been characterized by the parties as sounding in inverse condemnation. Inverse condemnation claims draw their meaning and remedies from the eminent domain provisions in the Fifth Amendment of the United States Constitution and Article I, Section III, Paragraph I of the Georgia Constitution, each of which protects against uncompensated “takings.” But, as the United States Supreme Court has appropriately noted, “[t]he question of what constitutes a ‘taking’for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty.” Penn Central Transp. Co. v. City of New York,
At the outset, our cases and those of the federal courts have articulated a distinction between eminent domain and the police power; the two powers serve a different, set of purposes and are subject to different, limitations.
Moreover, “[i]t is axiomatic that the Fifth Amendment’s just compensation provision is ‘designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” First English Evangelical Lutheran Church of Glendale v. Los Angeles County, Cal.,
The classic application of eminent domain is the actual and complete taking of property by the government in order to use that property for a public purpose. See Palazzolo v. Rhode Island,
Federal cases have coalesced around the idea that two categories of regulatory action will be deemed per se takings under the Fifth Amendment. First is the permanent physical infringement of property. See Loretto v. Teleprompter Manhattan CATV Corp.,
We have followed suit. A plaintiff seeking to challenge a government regulation as an uncompensated exercise of the government’s eminent domain power must show that the regulation is “so onerous that its effect is tantamount to a direct appropriation or ouster.” Mann v. Ga. Dept. of Corrections,
[Pjrivate property owners may be compensated in inverse condemnation actions for the temporary taking of land for the paving of a turn lane, increased noise and odor from a county’s sewage plant, and flooding, siltation, and pollution from surface water diverted by roadway maintenance.
Rabun County v. Mountain Creek Estates,
Inverse condemnation cases that do not fall within the per se categories outlined above have been notoriously hard to adjudicate, and even the Penn Central factors have led to “vexing subsidiary questions.” Lingle,
The first, and most natural, formulation is the taking of property by eminent domain for public use, whether through regulation or condemnation. “The clearest sort of taking occurs when the government encroaches upon or occupies private land for its own proposed use.” Palazzolo,
The problem is that this balancing approach is not consistent with the differentiation we have recognized between the police power and the power of eminent domain. Nor does it follow from the text of the Takings Clause, which mandates a remedy where the government takes private property for public use, but does not inquire into the wisdom of the policy at issue.
Although we’ve not been so direct about our own conclusion, this Court has already recognized the United States Supreme Court’s decision in Lingle, and the potential inaptitude of the “substantially advances” test for regulatory takings. See Mann,
We have also acknowledged that zoning is unlikely to be a fertile ground for inverse condemnation claims. See, e.g., Alexander v. DeKalb County,
None of this means that the “substantially advances” test outlined in Gradous, Guhl, and other cases—including this one—is an invalid way to analyze whether a zoning regulation is constitutionally arbitrary and capricious as applied to a particular parcel of land. It only means that this type of claim is rooted in due process guarantees against arbitrary exertion of the police power rather than in the government’s authority to take private property through eminent domain. “There is no question that the ‘substantially advances’ formula was derived from due process, not takings, precedents.” Lingle,
When the property owner’s right to the unfettered use of his property confronts the police power under which zоning is effected, due process guarantees act as a check against the arbitrary and capricious use of that police power. See, e.g., Dept. of Transp.,
IV.
Diversified’s complaint alleges both an inverse condemnation and a due process violation. But because Diversified requested relief in the form of rezoning without seeking damages for a taking, its claim is properly understood as sounding in due process. Regardless of its language intermixing due process and inverse condemnation claims (understandable given our own lack of precision in the past), the trial court applied the correct standard and concluded, in part, that the Property’s current zoning is substantially related to the public’s health, safety, morality, and welfare. We agree.
(1) existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of property values of the plaintiffs promotes the health, safety, morals or general welfare of the public; (4) the relative gain to the public, as compared to the hardship imposed upon 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 in the vicinity of the proрerty.
Guhl,
Like much of the area surrounding it, Diversified’s property is currently zoned for commercial use. Although the Property abuts a roadway, it has no sidewalks. The trial court specifically noted that the lack of sidewalks poses an “unreasonable and unsafe risk” to pedestrians who would be accessing the Property if it were rezoned. The potential increase in pedestrian hazards if a rezoning request is granted is a valid consideration supporting the denial of rezoning. See Westbrook,
The trial court also noted that the surrounding conditions, including the commercial nature of the businesses abutting the Property, support the current commercial zoning. And it also acknowledged that the City’s comprehensive plan (which provides for the Property’s commercial zoning) is a detailed and thorough plan for economic development within the City Whether the current zoning is consistent with the policies and long-range planning goals for the area is a factor courts consider in determining whether the zoning substantially benefits the public health, safety, and welfare.
The cases Diversified relies on do not lead to a different conclusion. The surrounding area near the Property, perhaps with the exception of a proposed development across the street, do not have residential uses (pre-existing or otherwise). The Property abuts the road and surrounding commercial zones with no buffer. And there is no indication that the City has sanctioned any violations of the comprehensive plan in the areas surrounding the Property Thus, even accepting that the Property has been vacant for many years, this case does not present facts that support invalidating the current zoning classification on due process grounds. Cf. DeKalb County v. Albritton Properties,
V.
In sum, we conclude that an appeal from a trial court’s order reviewing a local authority’s decision regarding an application to rezone property—an application that, more precisely, is seeking an administrative determination that zoning is unconstitutional or otherwise unlawful because of the particular factual circumstances surrounding a given party’s desired use of its land—is subject to the discretionary applicatiоn procedure set out in OCGA § 5-6-35 (a). We affirm the trial court’s conclusion that the denial of Diversified’s application to rezone the Property was not arbitrary or capricious. Having already determined that the application to rezone the Property was properly denied, we do not reach the merits of the cross-appeal.
Judgment affirmed.
Notes
Diversified acquired 26 acres of the Property in the late 80s or early 90s. Those 26 acres are zoned C2. According to the parties, C2 zoning does not allow for alcohol consumption or for the commercial sale of beer and wine. Diversified acquired approximately four acres of the Property in 2012. Those four acres are zoned C2A, which allows for the sale or consumption of alcohol.
The areas surrounding the Property are largely commercial and include a Super 8 Motel, Red Roof Inn, Walmart, office warehouse, and liquor store. Across the street there is property zoned for mixed-use development to include residential, commercial, and office development. Diversified seeks rezoning in order to sell the Property for development as an apartment complex.
Diversified specifically argued that the City’s “C-2 and C-2A zoning classification as applied to this specific property is unconstitutional and that RM-8 is the only zoning classification that would be constitutional given the particular characteristics of this unique property.” (emphasis supplied).
It bears noting here that the type of claim initially raised by Diversified is often characterized, both before the local authorities and in the courts, as an “application for rezoning.” But that description, while perhaps a helpful shorthand, does not accurately convey the complete nature of the decision that the zoning authority is being asked to make in the first instance—or the complete set of remedial measures that may be available to a zoning authority in a given case. At its heart, the application that gave rise to this case sought a conclusion that the current zoning ordinance was unconstitutional or otherwise unlawful with respect to the Diversified property. In order to avoid confusion, we continue to use the “application for rezoning” shorthand, but do so with the understanding that it connotes a broader inquiry into whether the current zoning is appropriately applied to the property at issue. We do not address whether an application sounding purely in policy rationales may lead to a different analysis.
The parameters of executive decisions are beyond the scope of this opinion. Suffice it to say that, as we recognized in International Knights, administrative agencies may make adjudicative, legislative, or executive decisions. Intl. Knights,
We have not held that adjudication by two tribunals is a requirement for the discretionary application procedure. Instead, review by a local tribunal and a superior court is one factor that this Court has considered in determining whether rezoning cases, such as this one, involve the type of administrative decision that requires a discretionary application to appeal. See, e.g., Ladzinske v. Allen,
We discuss the merits of these claims more fully in Division IV, infra.
Of course, an exercise of eminent domain is only prоper where the government acts to put the property to a public use. See, e.g., Brown v. Legal Foundation of Wash.,
It bears noting that, although we do not endorse this alternative view, the dissenting opinion in Perm Central would have entirely barred zoning from serving as the source of a takings claim. Id. at 147 (Rehnquist, J., dissenting) (“[ZJoning does not constitute a ‘taking.’ ”).
We do not reach the issue of whether Diversified could have stated a claim for inverse condemnation under these facts, but as noted, a local government’s zoning decision does not ordinarily give rise to a successful inverse condemnation claim. See Division III, supra. We answer only the question of whether thе zoning decision at issue violated constitutional guarantees of due process.
We find no merit to Diversified’s claim that the trial court relied exclusively on the presence of the comprehensive plan as evidence of substantial public benefit. The trial court made numerous findings of fact and conclusions of law and cited to public benefits and detriments unrelated to the comprehensive plan.
Because we conclude that the current zoning classification is substantially related to the public health, safety, and welfare, we need not reach the City’s contention on cross-appeal that the trial court erred in determining that Diversified showed a “substantial detriment” based on the refusal to rezone the Property. See Holy Cross,
Concurrence Opinion
concurring.
I concur fully in the opinion of this Court, which I understand to be a faithful application (and careful explanation) of unchallenged
The text of our Just Compensation Clause appears broader than the federal Takings Clause. The Takings Clause reads “nor shall private property be taken for public use, without just compensation.” U. S. Const. Amend. V. But the Just Compensation Clause provides (subject to a variety of subsequent textual exceptions) that “private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.” Ga. Const, of 1983, Art. I, Sec. Ill, Par. I (a) (emphasis supplied). This textual difference between the Clauses seems to me significant enough to raise questions about the validity of our case law often interpreting the Clauses as essentially the same. Answering those questions would require our careful consideration of text, context, and history And this provision of the Georgia Constitution has a particularly complex history; although present in every Constitution since 1861, its form has changed in some fashion in each new Constitution. But no party has raised or briefed such issues here, and so I leave them for another day