Agenda - Planning Commission - 01/04/2018

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Zoning Bulletin December 25, 201'7 I Volume 11 I Issue 24 The Background/Facts: Diversified Holdings, LLP ("Diversified") owned 30 acres of undeveloped land (the "Property") in the City of Suwanee (the "City"). The Property was zoned for commercial use in accordance with the City's 2030 Comprehensive Plan. Claiming that it has been unable to sell the Property as zoned for more than two decades, Diversified applied to the City for rezoning of the Property to allow for multifamily use. The City denied Diversified's request to rezone. Diversified then filed suit in superior court. Diversified alleged that the City's decision to deny Diversified's rezoning request constituted an unconsti- tutional taking of the Property. The superior court concluded that the City's current zoning of the Property caused Diversified a "significant detriment." Evidence showed that the fair market value of the Property would increase "tremendously" if it were rezoned —from between $600,000 and $1.5 million to approximately $5.9 million However, the superior court also concluded that the City's decision did not constitute an abuse of discretion and did not work an unconstitutional taking because the existing commercial zoning of Diversified's Property was "compatible with the surrounding commercial uses and [was] consistent with the City's comprehensive plan and economic development" and was therefore "substantially related to the public health, safety, morality, and welfare." Diversified appealed. The City also cross -appealed the finding that Diversi- fied showed a significant detriment. DECISION: Judgment of Superior Court affirmed. The Supreme Court of Georgia fast held that inverse condemnation was not an available remedy for Diversified, here. The court explained that inverse condemnation claims draw their remedies from the eminent domain provi- sions in the Fifth Amendment of the United States Constitution (as well as Article 1, Section 3, Paragraph I of the Georgia Constitution), which protects against uncompensated "takings." The court explained that such takings are seen when the "government encroaches upon or occupies private land for its owner proposed use," or when a "regulation of property . . . violates constitutional due process guarantees." The court noted that, with regard to regulatory action, when a regulation results in a permanent physical infringe- ment of property or deprives the property owner of "all economically benefi- cial uses," such action will be deemed a "per se taking" (i.e., on its face taking). With regard to cases that fall outside of those two categories, the court explained that courts look at certain factors to determine whether the regula- tion has "interfered with distinct investment -backed expectations." Those fac- tors include: the "economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment -backed expectations"; and "the character of the government ac- tion" (i.e., physical invasion versus "public program adjusting the benefits and burdens of economic life to promote the common good"). In summary, said the court, a party challenging 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." The court further explained that zoning "does not ordinarily present the ©2017 Thomson Reuters 5