Editorials

David Goldberg - Special

Thursday • February 10

Land-use planning in the state of Georgia --- the process that determines whether a park or a shopping center will end up down the street from you --- is one big, ugly mess. And it just got uglier, thanks to a recent Fulton County court decision. The ruling against the city of Atlanta in a Buckhead rezoning fight is a potential disaster, calling into question whether any local government has a right to enforce its land-use plan, even when it follows all the rules.

Developer TAP Associates sued the city after being denied a 1997 rezoning on 9.4 acres immediately north of the Buckhead Loop (now Lenox Road) at Phipps Boulevard. TAP wants to build a pair of 200-unit multifamily high-rises, a 400-room hotel, free-standing restaurant and two office buildings there.

The problem is the land has been designated as "residential only" in the city's comprehensive development plan for about 10 years, since before the developer bought it, according to city officials. Responding to the fears of adjoining neighborhoods, the city's plan had maintained the Buckhead Loop as the "firm boundary" between the dense mixed-use south of the road and residential areas to the north.

The city was willing to give the developer a much denser zoning than existed on the property, allowing multifamily high-rises closest to Buckhead's "downtown" but requiring single family homes adjacent to the neighborhood.

But the developer argued in court that it couldn't make nearly as much money on residential alone as it could on mixed use. It also complained that the city's denial of its rezoning request made its property less valuable than similar parcels nearby. The detriment to its profits, therefore, outweighed the city's attempts to protect incursion into the single-family neighborhood, it claimed.

Incredibly, Judge Joel Fryer bought the developers' arguments and ordered the city to give TAP its commercial zoning.

It's hard to understand the judge's thinking. Exactly what was it the city did to the detriment of the developer? TAP bought the property knowing it was zoned residential and that the city intended to keep it that way. Maybe it was a dumb purchase, maybe not, but why is it the city's obligation to turn speculation into guaranteed windfall?

The judge apparently disagreed with the city's notion that a firm boundary between mixed use and residential use was necessary in the first place. In an ironic twist, he was persuaded in part by the testimony of Leon Eplan, who was the city's chief planner when the land-use plan and the boundary were adopted. Eplan now is a paid consultant to the developer.

As chief planner, Eplan said, he had agreed to the boundary concept reluctantly. In his view, the property was appropriate for mixed use because it was close to both a MARTA station and existing commercial development.  Eplan argues that putting offices, stores and homes in close proximity to one another is good for the city because it adds vitality and reduces the need for car trips.

Eplan is absolutely right that those are critical goals for the city as a whole. But the city also has a goal of preserving many of its older single-family neighborhoods. The comprehensive plan, as Eplan well understands , is an evolving attempt to balance those aims. When done right, as Atlanta's was, comprehensive plans are written after numerous constituencies have had their say in an open, public process. That's the place to settle arguments about which values should take precedence in which parts of town --- there, and not in the courts.

The conventional wisdom used to be that if a local government had a legally adopted land-use plan and followed it consistently, it could withstand any court challenge. This ruling stands that idea on its head.

The city of Atlanta has until Monday to file an appeal to the Georgia Supreme Court, and all indications are that it will. The high court takes very few zoning cases, but it ought to take this one and use the opportunity to re-establish the pre-eminence over land-use decisions that the state constitution confers to local governments.