Protecting zoning laws

Decision to overrule city's plan in favor of Buckhead development sets bad precedent.

Paul B. Paulson - Special

Saturday, March 18, 2000

Atlanta still has neighborhoods with all the greenery of a Costa Rican rain forest, and they're just around the corner from the office. Verdant North Buckhead is one example.

But all is not well. Higher use beckons. And North Buckhead recently took a blow to the heart. A Superior Court judge placed more importance on a developer's plans for change than on Atlanta's right to protect a neighborhood's character.

Judge Joel Fryer cited the increased profit available to the developer as the primary reason for his decision to undo Atlanta's Comprehensive Plan. He ruled that the developer can build two office towers, a restaurant and 400 apartment units on land that is zoned for high-density residential only.

The property was supposed to be a buffer, with apartments serving as the divider between a single-family residential neighborhood and the Buckhead commercial office district. This was approved while Leon Eplan was the city of Atlanta planning director

But instead of an insulating buffer, we will have high-rise office towers.

At trial, Eplan testified for the developers. He said that this spot on the map could be better used for mixed use --- a live-work-play kind of place. Just what the developer had in mind. It's healthy for a city, he said.

But hey, what of the health of the families already living there, what of their welfare, Mr. Eplan? People who have invested their lives, raised families, buried their parents from there? What about the feelings of those who love their neighborhood and relied on their government to protect it from incompatible change?

Just like Dorothy's hapless Tin Man, Eplan was using his head, but his heart was missing.

There is true irony here, for this issue has been settled long ago by the U.S. Supreme Court. Back in 1926, government's right to restrict the use of private land to protect the integrity of a residential neighborhood went on trial in Euclid, Ohio, for the first time.

A developer, Ambler Realty Co., argued that it would make triple the money using its property the way it wanted. But Euclid said no, it wasn't part of the plan. The abiding character of a residential neighborhood was at stake. Ambler said the town's restriction would steal value from their property. Ambler claimed a "highest and best use." People vs. Profit, just like North Buckhead.

The case caught the nation's attention because the future of the then-new institution of zoning hinged on the outcome.

Zoning appeared lost, for it was a very conservative Supreme Court. William Howard Taft sat as the chief justice after four conservative years in the White House.

Zoning probably would have been dead in the water, except for the indomitable spirit of a small-town Euclid lawyer. He drove home the importance of permanence among the values that make a place a home.

Kiss the girls and wave the banners, for the court found zoning constitutional, 6 to 3. People were safe from the power of the dollar.

Government could restrict the use of private property in order to ensure the public's health, safety, morality or general welfare. They could do it even if it meant that somebody might lose some money. But, Ambler's land still had value as zoned. "Highest and best use" be damned.

The court went further, proclaiming that general welfare meant concepts spiritual and aesthetic, not just concrete and objective. Zoning laws protecting beauty were constitutional uses of local government police power, just like setting speed limits. This case, Village of Euclid v. Ambler Realty Co. is the seminal zoning decision. It is still the standard.

So, how can the courts hurt North Buckhead now? Be it a misinformed judge or a distracted city attorney, something went terribly wrong. Unfortunately, the pain goes much deeper because now developers far and wide can point to this decision.

They need only show a court that a project can make more money doing it their way and, bingo, crank up the bulldozers. The people are left out.

Zoning by the bottom line isn't fair. Moreover, certain development in some places just shouldn't be allowed.

And to members of the Georgia Supreme Court who will review this case: The next time the scales of justice are asked to weigh the value of a neighborhood against the formidable weight of a bag of gold, it just might be the neighborhood you call home.

Paul B. Paulson, a tree stump remover, lives in Cobb County. His email address is bpstmp@aol.com.