Agenda - Planning Commission - 05/02/2002

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Page 6 -- lVtarch 25, 2002 zoning by trying to discern the state of mind of the rezoning body at the time of adoption. While site plans had to be submitted in support of ail rezoning requests for PUD, a portion of the ordinance allowed the site plans to be recommended as a condition of rezoning. Here, the board did not designate the conditionSng of the rezoning upon the use of the site plans. Furthermore, there were no ordinances preventing Martin from construct- lng a multi-family dwelhng on PUD classified property. And, the proposed assisted-living facihty was a multi-family dwelhng, and the terms were used interchangeably. Martin was not proposing a major change that required further zoning board approval, but was simply seeking to build another type of multi-family dwelling. Citation: Cherokee County V. Martin, Court of Appeals of Georgia, 2nd Div., No. AOIA0265 (2002). see also: Michiels v. Fulton Co,m~., 405 &E. 2d 40 (i991). see also: Martin v. Halfield, 308 S.f. 2d 833 (1983). TaMngs -- Developer seeks rezoning to neighborhood retail commercial classification Proposal includes developing Walgreen's store GEORGIA (02/04/02) --Jervey applied to rezone more than two acres in Marietta at a major intersection. The property was classified as office and insti- tutional (OI), but he sought rezoning to neighborhood retail commercial (NRC~. Th_is reclassification would allow him to develop a Walgreen's store. The city denied the rezoning, and Jervey sued, claiming an unconstitu- tional taking. The lower court found judgTnent for the city, and Jervey appealed. DECISION: Judgment affirmed.. The refusal to rezone v,;as not an unconstitutional taking. The standard for determining a taking was whether the Current zoning clas- sification caused the property owner a significant detriment having no sub- stantial relation to the public health, safety, morality, and welfare. The denial of rezoning did not constitute an unconstitutional taking. Jervey had to show the O[ classification resulted in a sigTfificant de,merit to kim and had no substantial relation to public welfare. · Here, the city classified the property as OI to provide a buffer for an adjoin- ing residenriai neighborhood. Maintaining the integrity of the.residential neigh- borhood was a valid public interest. The city showed a significant public interest in keeping the OI classifica- tion, and Jervey showed no clear evidence to the contrary. Therefore, the lower court decision finding no taking had to be affirmed. Citation: Jem, ey v. Ci~. of Marietta, S~preme Co~rt of Georgia, No. S02A0036 (2002). see also: Guhl v. Ho&omb Bridge Road Corp., 232 S.£.2d 830 (1977). see also: Ci? of Ros'a, etl ~,. Heavy Machines Co., 349 S.£.2d 743 (1986). I I I ! I I ! I I I I I I I I I I I