Agenda - Planning Commission - 01/04/2018

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December 25, 2017 I Volume 11 I Issue 24 Zoning Bulletin kind of affirmative public use at the expense of the property owner that effects a taking." Zoning claims are typically "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," said the court. "When the property owner's right to the unfettered use of his property confronts the police power under which zoning is effected, due process guarantees act as a check against the arbitrary and capricious use of that police power," said the court. Therefore, in order to strike a balance (between police power and property rights), "a zoning classification that substantially burdens a property owner may be justified if it bears a substantial relation to the public health, safety, morality, or general welfare," said the court. Lacking such a justification, the zoning may be set aside as "arbitrary or capricious," and can- not stand. Here, Diversified had alleged both an inverse condemnation and a due pro- cess violation. The court concluded that because Diversified requested relief in the form of rezoning without seeking damages for a taking, their claim was properly understood as sounding in due process. Again, under the due process analysis, the court said that Diversified's challenge of the validity of the zon- ing "must show, by clear and convincing evidence, that the zoning at issue presents a significant detriment to the landowner and is insubstantially related to —in other words, does not `substantially advance' —the public health, safety, morality, and welfare." In looking at the validity of the City's decision to deny the rezoning request, the court explained that the following factors had to be considered: (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 property; Balancing those factors here, the court concluded that the City's denial of Diversified's petition to rezone the Property for multi -family housing should be affirmed. The court said this was because the zoning decision was not "arbitrary or capricious," but rather was "substantially related to the public's healthy, safety, morality, and welfare" as: the area around the Property was zoned for commercial use; the City's Comprehensive Plan provide for the Pro- perty's commercial zoning; such zoning was adopted after "extensive study and public debate"; the Property had no sidewalks and therefore was hazard- ous for pedestrians; and businesses abutted the Property. See also: Guhl v. Holcomb Bridge Road Corp., 238 Ga. 322, 232 S.E.2d 830 (1977). Case Note: In its decision, the court emphasized that its decision clarified that the "substantially advances" standard that derives from constitutional due process guarantees "has no - place in an eminent domain or inverse condemnation proceeding." "Consequently, 6 © 2017 Thomson Reuters