My Opinion: As Buckhead case shows, trust isn't built into plan

Metro Atlanta is going to continue to boom, so trying to solve our problems by trying to stop or substantially slow the region's growth is simply foolish. It's like trying to stop a river. We can, however, choose how growth happens. We can continue to grow as we've always grown, or we can try something new. In the last couple of years, the region has come to a grudging consensus in favor of a greater role for mass transit, more mixed-use development and at least a theoretical acceptance of higher density.

Translating that consensus into action, however, will require changes in attitude and behavior by everybody involved. Developers, government officials and neighborhood associations are all going to have to compromise a bit. Developers have to try new approaches, local planning departments have to loosen the regulatory reins a bit, and neighborhood groups have to back off their often knee-jerk opposition to higher density and mixed uses.

All that's going to require trust, which for the most part doesn't exist. Trust requires a belief that final decisions will in fact be final, that legally made decisions and compromises will be legally enforceable. Under Georgia land-use law, it just ain't so. Developers trying to overturn zoning decisions in Georgia have beaten such a well-worn path to the courts that the DOT might as well pave it as a four-lane highway.

While that happens most commonly in suburban counties, a recent glaring example occurred in the city of Atlanta. For the past 10 years, a 9.35-acre parcel of land in Buckhead had been designated for residential use only in the city's comprehensive land-use plan. The property was intended to serve as a buffer, with high-density apartments acting as a divider between the intensely commercial Buckhead office district to the south and the single-family residential neighborhood to the north. That designation was approved after a lot of input from neighborhoods, landowners and city officials, including Leon Eplan, then the city's planning director.

Nonetheless, TAP Associates, which owns the property, has demanded that the city's long-standing land-use designation be overturned so it can build two office towers and a restaurant on the site, in addition to 400 apartment units. The company argues that the Buckhead real estate market isn't strong enough to justify apartments alone on that site, that office and commercial space is needed to make the project economically feasible.

On Jan. 13, after hearing the company's case, Fulton County Superior Court Judge Joel Fryer agreed and ordered the city to rezone the property. Fryer based his decision on Georgia case law that requires him to balance the public benefit from land-use restrictions against any potential loss of profit by private landowners. If the private loss exceeds the public benefit, he wrote, the zoning must be tossed out. In this case, the judge determined the public benefit of the previous zoning to be minimal, while noting that TAP Associates stood to make a lot more money if it could add office and retail space to its project.

If you read Fryer's opinion, however, you realize pretty quickly how awkward that balancing test can be. To cite an imaginary example, how do you balance a developer's claim of $1 million in lost property value against the potential impact of more traffic on a nearby neighborhood? You can't do it. It's like stacking apples against oranges. Furthermore, the balancing test requires judges to consider questions such as tax impact, infrastructure needs, traffic generation and school overcrowding. Judges should not be deciding what's good public policy.

In the case of the Buckhead property, a decade-old compromise between landowners, neighborhood groups and planning officials was ruled null and void when landowners decided to get a deal more to their liking. The sense of betrayal was compounded by the involvement of Eplan, who has left city government and was hired as a private consultant by TAP. He testified in court in favor of the developer, in essence saying that he had disagreed all along with an agreement he had helped forge.

The city has appealed Fryer's decision, the outcome of which will be watched closely. It has been joined in that appeal by the Georgia Municipal Association.

Even before this decision, local officials in Georgia had a hard time making zoning and land-use decisions stick in court. If the Buckhead decision is allowed to stand, it will further weaken the already rubbery spine of local government officials in standing up to developers. It also will make it much more difficult to build and sustain any degree of trust among developers, homeowners and local officials.

The development community in particular talks a lot about wanting certainty, about wanting to know the rules beforehand and knowing that they'll be enforced fairly. That's understandable and reasonable, but the issue cuts both ways. Neighborhood groups need certainty, as well. If a well-drafted comprehensive plan such as Atlanta's cannot be successfully defended in court, then there is no basis for trust and it's everyone out for himself.