The City of Atlanta's Appeal
to the Georgia Supreme Court
in the TAP Associates case

III.  STATEMENT OF FACTS

Because the subject property is directly across Phipps Boulevard from mixed uses consisting of commercial, office and high density residential, on its CDP the city has designated the approximately six acres on the eastern portion of the subject property fronting on Phipps Boulevard and Lenox Road as “very high density” and “high density” residential. (Exhibit 2). The remainder of the property, approximately two acres fronting on North Stratford Road, has been designated and zoned as single family residential consistent with the other single family lots on North Stratford and the North Buckhead Neighborhood of which it is a part. (Exhibit 2).  Although all of the subject property is under unified ownership, any analysis of the constitutionality of these two separate CDP designations should have been, but was not, conducted separately and uninfluenced by TAP’s desire to develop both parcels as if they were one. (R-178-206). 

TAP speculatively bought the subject property in 1990 before the construction of Georgia 400 and the extension of Lenox Road between Peachtree and Piedmont was completed.  At the time of purchase, all of this property was designated for residential development.  Nonetheless, TAP hoped that it would one day be allowed to build commercial development and valued the subject property accordingly. (T-p. 621 - ll. 9-17).

However, contrary to TAP’s speculation, the city determined that Lenox Road and Phipps Boulevard should be the dividing line between mixed use development consisting of commercial, office and high density residential to the south and east and high density residential to the north and west transitioning into the North Buckhead single family neighborhood. (Exhibit 2; T-p. 672, l. 22 - p. 675, l. 21).   In addition to the usual input received at its public hearings, the city also facilitated the comprehensive Transit Station Area Development Study (TSADS) for all of the property surrounding the Buckhead Station.  This study incorporated not only the interest of TAP and the other commercial developers who had also speculatively acquired large tracts of property bordering on Lenox Road and Phipps Boulevard, but also the interests of the existing single family residential neighborhoods adjacent to these properties.   After years of studying this issue, TSADS confirmed that the best compromise to these conflicting interests was to contain the mixed use development consisting of commercial, office and high density residential to the south of Lenox Road and to the east of Phipps Boulevard and then begin with high density residential to the north immediately fronting on Lenox Road and to the west fronting on Phipps Boulevard stepping down in intensity and transitioning into the single family neighborhoods. (T-p. 676, l. 5 - p. 688, l. 17). In accordance with this policy, all property fronting on the west of Phipps Boulevard,^[5] including approximately six acres on the southern part of TAP’s property, was designated under the CDP for very high density residential stepping down in intensity to the single family neighborhood to the west, which included just over two acres of TAP’s property located on North Stratford Road that remained designated as single family. (Exhibit 2). This, the city reasoned, would allow reasonable development of the property most immediately effected by the mixed use and commercial development fronting on Peachtree Road and backing up to the dividing line while protecting the integrity of the interior single family neighborhoods. (T-p. 689, l. 1 - p. 691, l. 21).  Thus a zoning line was created between these conflicting land uses at the only reasonably definable and defensible place.

After hearing testimony from various experts, the Superior Court on January 13, 2000 entered an Order declaring all of the city’s zoning designation on the subject property unconstitutional and requiring it to be rezoned within sixty days to a constitutional zoning classification. (R-205). Additional facts concerning this decision will be developed within the context of the arguments below.

IV.  ENUMERATION OF ERRORS

1.  The trial court erred in using the Steinberg Act as a standard of review in ruling that the property was unconstitutionally zoned.

2.  The trial court erred in failing to grant a Rule 41(b) motion to dismiss on the North Stratford frontage of the property and in ruling that this single family residential property was unconstitutionally zoned.

3.  The trial court erred in finding that there was not substantial public interest to justify the city’s designation of the subject property under the CDP.

4.  The trial court erred in allowing the city only sixty days to rezone the subject property when the legal requirements dictate a significantly longer time.

        V.  ARGUMENT AND CITATION OF AUTHORITY

A.  The Trial Court Used an Incorrect Standard of Review (Error No. 1)

1.  The Burden Of Proof

The appropriate legal inquiry that has been structured by this Court in its rulings on zoning cases was comprehensively discussed in Defendants’ Memorandum of Law that was filed with the trial court.  Since it is a part of the record in this case, it will not be repeated in this brief. (R-159-176).  In summary, the inquiry begins with the presumptively validity of the existing zoning which can be overcome only by clear and convincing evidence.  Moreover, if the validity of a zoning ordinance is fairly debatable, the governmental judgment will control. Dekalb County v. Dobson, 267 Ga. 624, 626 (1997); Avery v. City of Brunswick, 242 Ga. 73, 75 (1978); Flournoy v. City of Brunswick, 248 Ga. 573 (1981).

The current legal standard is well-articulated in the seminal case of Gradous v. Richmond County, 256 Ga. 469 (1986).^[6]  TAP had the burden of making two threshold showings in this case as to both its high density residential property fronting on Lenox Road and Phipps Boulevard and its single family residential portion fronting on North Stratford.  First, it was required to prove by clear and convincing evidence that the existing zoning presented a “significant detriment.”  Then TAP was required to show, also through clear and convincing evidence, that the existing zoning is “unsubstantially related” to the public health, safety, morality and welfare.  Gradous, supra.; Holy Cross Lutheran Church, supra.; City of McDonough, supra.

If TAP had not met each prong of this initial two-part threshold burden as to both portions of its property, there was no requirement for the governing authority to present any evidence at all justifying the zoning.  See, e.g. Jones v. City of Atlanta, 257 Ga. 727 (1988); Gradous, supra.; Holy Cross, supra.; City of McDonough, supra.  This is because the presumptive validity of the existing zoning has not been overcome by the owner.   Only if TAP established both requirements noted above by clear and convincing evidence was the city then required to come forward with justification for the zoning through evidence showing it was “reasonably related” to the public interest.  Jones, supra.; Gradous, supra.; Holy Cross, supra.; City of McDonough, supra.  This inquiry into the reasonableness of a zoning classification concerns constitutional reasonableness, not economic reasonableness. Gradous, supra.; Holy Cross, supra.; City of McDonough, supra.; Dekalb County v. Chamblee Dunwoody Hotel Partnership, 248 Ga. 186 (1981).

At this point, if TAP met the two-part threshold burden to overcome presumptive validity and the city offered evidence justifying the zoning as reasonably related to public concerns, the trial court was required to engage in a balancing of interests.  This balancing test essentially weighs the public benefit of the existing zoning against the detriment to the property owner.  The factors used to make this determination are set forth in part in Guhl v. Holcomb Bridge Road Corp., 238 Ga. 322 (1977).  See, City of Roswell v. Heavy Machines Co., Inc., 256 Ga. 472 (1986).

After this inquiry, “[i]f the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.”  DeKalb County v. Graham, 241 Ga. 423 (1983); see also, Dekalb County v. Dobson, supra.; Avery v. City of Brunswick, supra.; Flournoy v. City of Brunswick, supra.; Chamblee Dunwoody Hotel Partnership, supra.  Only if the existing zoning is substantially onerous to the owner and without reasonable relationship to public concerns can it be found to be unconstitutional.  Id.  In short, the burden on the property owner seeking to overturn a zoning classification as unconstitutional is a very heavy burden indeed.

In City of Atlanta v. Cates, 260 Ga. 772, 773 (1990), this Court held that “the cause of action or the issue to be decided in a rezoning case is the constitutionality of the zoning classification of a given piece of property.”  Hence, as Cates made clear, the proposed development plans of the property owner border on irrelevancy.  Thus, the line of cases holding that the focus is on the existing zoning, not on the increase in value that would result in the rezoning sought by the developer. Dekalb County v. Chamblee Dunwoody Hotel, supra. ; Dekalb County v. Dobson, supra.

During this inquiry, “[the trial court does] not ask whether another zoning classification might be more logically and economically reasonable or desirable on all the facts than the one attacked, because that is not the question.”  Moon v. Cobb County, 256 Ga. 539 (1986).  This is because, in a rezoning action, the trial court is looking only at the constitutionality of the existing zoning and not the decision of the governing body that may have rejected alternate uses.  See, e.g., Village Centers, supra., at 178:  “[W]e agree that the issue is the constitutionality of the zoning ordinance as opposed to the constitutionality of the decision of the governing authority denying rezoning . . .  .”

2.  The Trial Court Based Its Findings On The Proposed Rezoning

In this case, the trial court focused on the proposed rezoning.  The trial court incorrectly states that the “framework for factual inquiries by trial courts in zoning cases” which were originally set forth in Guhl v. Holcomb Bridge Road Corp., supra., “were codified in the Steinberg Act (the “Act”), O.C.G.A. § 36-67-1, et seq.” and then goes on to list the six areas of inquiry legislated therein. (R-198-199).  Even the most cursory examination of these two sets of criteria shows that they are fundamentally different.  The Guhl criteria is case law that requires the trial court to examine the existing zoning and its effects on nearby property in response to a court challenge of the constitutionality of that existing zoning while the Steinberg Act is legislation that requires the planning department of the governmental body to examine the proposed zoning and its effect on nearby property at the time the rezoning application is filed. O.C.G.A. § 36-67-3; Northridge Community Association, Inc. v. Fulton County, 257 Ga. 722 (1988).  Yet the trial court states in its Order that it is applying both the Guhl criteria and the Steinberg Act to the facts of this case in reaching its conclusion that the existing zoning is “arbitrary and unreasonable.” (R-203).  Thus the trial court impermissibly utilized the Steinberg Act to analyze the impact of the proposed rezoning. 

Where it is apparent that a trial court’s judgment rest on an erroneous legal theory, the judgment must be vacated and the case remanded.  This is true even if there is evidence of significant detriment because the appellate court cannot say what the trial judge would have concluded if he had been relying on the correct theory. Gwinnett County v. Davis, 268 Ga. 653, 655 (1997).  The trial court’s erroneous examination of the merits of the proposed zoning manifestly conflicts with the standard of review of well established case law.  Here the trial court, contrary to the holding of  Moon v. Cobb County, supra. and Guhl v. M.E.M. Corp., 242 Ga. 354 (1978), accepted TAP’s experts’ opinions that the proposed zoning was “more logically and economically reasonable or desirable” than the existing zoning.   By purporting to balance the merits of the purposed zoning, as the governmental planning department must do under the Steinberg Act, along with the existing zoning under the Guhl criteria to support its conclusion that the existing zoning was “arbitrary and unreasonable,” the trial court clearly applied an erroneous legal test.  It is apparent from the trial court’s Order that this erroneous examination of the proposed zoning was used to support its conclusion that the existing zoning was unconstitutional.  Thus, the judgment must be vacated and the case remanded. Gwinnett County v. Davis, supra.

B.  The Trial Court Erred in Failing to Grant a Rule 41(b) Motion to Dismiss as to the North Stratford Frontage of the Property and in Finding the Single Family Zoning was Unconstitutional (Error No. 2)

1.  There Was No Showing of Significant Detriment As To This Portion Of The Property

The trial court ruled that the vacant property zoned R-3, single family residential, located on North Stratford Drive, which is itself an exclusively single family residential street, was unconstitutionally zoned.^[7]  As justification for this ruling the trial court found that “this portion of the property has been available for sale since 1990, but because there has not been sufficient interest by potential buyers, it has never been platted or developed for that purpose.” (R-183).^[8]  This finding was based upon TAP’s president’s testimony that there had been no interest in this portion of the subject property as single family lots since they had owned them. (T-p. 573, ll. 13-14). However, there was no evidence at trial supporting this self serving declaration of lack of interest.  Instead, it showed that TAP, which is a commercial real estate development firm, had never listed this portion of the subject property for sale as single family lots with a residential real estate firm, had never run an ad listing it for sale and had never put a “for sale” sign on this part of the subject property. (T-p. 606, l. 21 - p. 608, l. 17).^[9]   Indeed, the Order acknowledges that this portion of the subject property had never even been platted into single family lots. (R-183).  Certainly, there can be no doubt that single family lots that do not even exist cannot be effectively marketed or sold. 

Further, the trial court’s Order affirmatively demonstrates the motive for this lack of effort to market this single family property on the very next page where it finds that the height plane restriction that would have been imposed on the remainder of TAP’s property because of its adjacency to the single family portion of its property “would severely limit the height at which residential towers (or for that matter, any other towers) could be built on the remainder of the property.” (R-184).^[10]  This lack of effort because of the severe limitations that the sale of the single family portion would have had on TAP’s development plans for the remainder of the subject property further supports the evidence that showed no attempt whatsoever to market this single family property. 

Yet despite this lack of motive and effort to sell these residential lots, the trial court, in denying the city’s Rule 41(b) motion in regard to this portion of the property, strongly relied upon this so called marketing effort.  Relying on what it thought was language from Brown v. Doughery County, 250 Ga. 658, 659 (1983), (T-p. 647, ll. 9-16)^[11], as it was cited in Gwinnett County v. Davis, supra. at 655 (1997), the trial court denied the city’s motion for the reason that it believed there was evidence of significant detriment because it had been “shown as part of the evidence that the owner has been unable to sell the property with current classification and that it is not economically feasible to develop the property under the current classification.” (T-p. 647, ll. 9-24).^[12]

The total lack of effort shown in this case cannot be considered justification for the trial court’s conclusion that the subject property is not marketable under its current zoning classification.  If this were the case, then evidence of the nonreceipt of unsolicited offers to buy property^[13] would be considered proof that it cannot be sold as zoned.  This is far removed from what has been expressed by this Court in previous rulings which have required a showing of a lack of interest in property that is being actively marketed.  In DeKalb County v. Blalock Machinery,  247 Ga. 671, 672 (1981), it was held that the “evidence fails to show a genuine effort to sell the property as zoned” where the owner testified that he placed a “for sale” sign on the property and told several realtor friends that it was for sale.  In that case, this Court noted that the property was never listed and that no brokerage agreement was ever signed.  Yet the trial court reached the opposite conclusion in the present case where, not only was there lacking the minimum effort found insufficient in Blalock Machinery of at least erecting a “for sale” sign and letting realtors know it was for sale, but where TAP here never even platted the subject property as single family lots.  See also, Holy Cross Lutheran Church v. Clayton County, supra. at 22 (no detriment where it was uncontroverted that the owner had not attempted to market the property as residential); Jones v. City of Atlanta, supra. at 728 (no evidence that the property had ever been marketed at an asking price consistent with the established fair market value of the property as zoned).  There was simply no evidence to support the trial court’s finding of any marketing effort for the North Stratford frontage of the subject property. 

While the Order goes to great lengths in discussing the valuation  of the high density residential portion of the subject property, (R-190-192), it only mentions in passing that the single family residential frontage on North Stratford was valued by appraisers for both sides without any recognition of what this testimony unequivocally showed that value to be.  Had the valuation evidence on the single family portion been considered by the trial court as it was on the high density portion, it could not have reached the conclusion that there was significant detriment as to the single family portion on North Stratford.  That is because this undisputed evidence showed that these potential lots retained value that was comparable to similarly situated and zoned single family lots.  Both appraisers agreed that these potential lots would be worth approximately $125,000.00^[14] for each one-half acre lot and that this valuation was comparable to other similarly situated and zoned single family lots. (T-p. 511, ll. 4-10; p. 779, ll. 5-11).  In fact, TAP’s appraiser assigned these potential lots the same value as lots in two of Atlanta’s most prestigious neighborhoods and slightly less than one in the Brookhaven Neighborhood, arguably one of the most prestigious and highly valued neighborhoods in the city. (T-p. 513, ll. 13-23).  Further, there was evidence presented of other homes selling on North Stratford Road in close proximity to the subject property from $344,900.00 to $459,900.00. (T-p. 779, l. 16 - p. 781, l. 7).  Not only was there no showing of any decrease in value or of a value less than other similarly situated and zoned single family property as there was in City of McDonough v. Tusk Partners, supra; DeKalb County v. Albritton Properties, 256 Ga. 103 (1986); Candler & Assoc., Inc. v. City of Roswell, 258 Ga. 621 (1988), TAP’s own expert appraiser admitted without hesitation that he found no diminution in value in the subject single family lots on North Stratford when he compared them to similarly situated and zoned lots. (T-p. 514, ll. 20-23).  Significant detriment simply cannot exist when both parties’ experts agree that the subject property does not suffer any loss in value when compared to similarly situated and zoned property.  There is no question that TAP would realize a greater profit from the high density multi-family residential it wishes to locate in place of the single family residential on North Stratford.  But Gwinnett County v. Davis, 268 Ga. 653, 655 (1997), held that significant detriment is shown by clear and convincing evidence of a substantial decrease in the value of the subject property under the current zoning, not by a showing that it would be worth more if rezoned to a higher density.  On appeal after a remand, this Court reiterated that “significant detriment is not established by evidence only that it would be difficult for the owner to develop the property under its existing zoning or that the owner will suffer an economic loss unless the property is rezoned.”  Gwinnett County v. Davis, 271 Ga. 158, 159 (1999).  

Evidence cited by the trial court that the remainder of the subject property would be more valuable if rezoned because of the height plane restrictions caused by the single family property (R-184) is woefully inadequate  because it is well settled law that the development plans of the property owner and the increase in value if rezoned borders on the irrelevant. City of McDonough v. Tusk Partners, supra; Dekalb County v. Dobson, supra.  These are separate parcels of property with different zoning designations -- the single family lots fronting on North Stratford and the high density residential fronting on Lenox Road and Phipps Boulevard.  The constitutionality of the zoning on each parcel must stand on its own merits and the fact that both are owned by the same entity should play no part in any analysis of appropriate land use.  The trial court committed further reversible error when it considered the effect that the single family lots would have on the development plans of TAP for the remainder of the parcel.

2.  There Was No Showing That Single Family Residential On North Stratford Was Not Substantially Related To
The Public Interest

The trial court’s Order fails to make any finding that the single family frontage on North Stratford fails to protect the public interest.  It only notes that TAP’s proposed plan will “ensure the protection of the nearby neighborhood” because “there will not be a street connecting the new development to the existing neighborhoods” and it “creates a buffer.” (R-187).  It then criticizes the city’s concerns by reasoning that they “did not articulate how, if at all, allowing a mixed use development on the subject property could destroy the viability of the single family neighborhoods.” (R-188).  Finally, the trial court dismisses the existing single family zoning as inferior to TAP’s proposed zoning which it finds “incorporates the modern planning concepts of  ‘New Urbanism,’ thereby creating an exciting place to live, work and play while still protecting the nearby single family neighborhoods.” (R-194-195).  As set forth in more detail in the following section of this brief, such evidence, might at best, show that the proposed zoning protects the nearby single family neighborhoods as well as the existing zoning, but such evidence is legally insufficient.  Dekalb County v. Dobson, supra.; City of Atlanta v. Cates, supra. (1991); DeKalb County v. Chamblee Dunwoody Hotel, supra.  There is no mention in the trial court’s Order that the existing zoning does not protect the nearby single family neighborhoods.  In fact, one of TAP’s own expert readily admitted that having single family lots on the portion of the subject property fronting on North Stratford would serve the public interest of protecting the other single family homes on that street from commercial encroachment,  (T-p. 255, l. 16 - p. 256, l. 5), and another of its experts criticized TAP’s own proposed rezoning which located multi-family residential fronting on North Stratford. (T-p. 304, l. 22 - p. 305, l. 8). The reason why the trial court could not make a finding in this regard is because it is axiomatic that single family homes sharing the same exclusively single family street with other single family homes obviously serves the public interest of protecting that neighborhood from non-single family encroachment.  

The unquestioned protection that the existing zoning provides the other homes on North Stratford contrasted sharply with TAP’s experts’s disagreement even among themselves as to where the mixed use encroachment should stop if it was allowed onto this exclusively single family residential street.  Two said North Stratford should be multi-family from TAP’s property all the way to the detention pond on North Stratford (T-p. 135, l. 4 - p. 136, l. 1; p. 410, ll. 19-24), another said that part of North Stratford should remain single family (T-p. 259, ll. 2-10), and yet another said single family was not a good land use all the way from TAP’s property to Ivy Road. (T-p. 322. l. 20 - p. 323. l. 2).  This conflicting testimony as to where to end multi-family development on North Stratford once the single family barrier had been breached served to support the city’s policy of not allowing multi-family to intrude onto this exclusively single family street.

Since there was no marketing effort undertaken for the single family portion of the subject property on North Stratford and the evidence showed it to be comparably valued with similarly situated and zoned property, the trial court erred in finding that TAP had shown significant detriment by clear and convincing evidence as required by the first prong of the Gradous test.  Because there was no finding that the existing zoning did not serve the public interest of protecting single family homes on the same street, the trial court further erred in concluding that TAP, by contending that the proposed zoning also protected these homes, had met its burden of proof as to the second prong of the Gradous test by clear and convincing evidence.  The Rule 41(b) Motion should have been granted as to the North Stratford frontage.

C.  The Trial Court Erred In Finding That There Was Not Substantial Public Interest To Justify The City’s Designation Of The Subject Property Under The CDP. (Error No. 3)

The city has demonstrated in the previous portion of this brief that the existing single family zoning designation for North Stratford portion of the subject property was in the public interest.  This section of this brief will apply this test to the remainder of the subject property fronting on Lenox Road and Phipps Boulevard which is designated as high density residential under the CDP. 

The city is aware that this Court will not reverse a case on its facts even if the evidence adduced at trial would have authorized the trial court to reach the opposite conclusion. City of McDonough v. Tusk Partners, supra.  As shown in the previous section of this brief, the evidence at trial affirmatively showed there was no significant detriment as to portion of the subject property that was the single family residential lots located on North Stratford Road.  The city disagrees with the trial court’s finding of significant detriment on the portion of the subject property fronting on Lenox Road and Phipps Boulevard that is designated for high density residential development. As noted, TAP’s assertion of detriment as to this portion of the subject property was based upon a speculative price that was paid on the hope that higher development permission would eventually be allowed.  While the city is aware of this Court’s ruling in City of McDonough, it respectfully submits that the weight accorded this prong in any balancing of interest should be greatly lessened by the existence of this conflicting evidence.

However, there can be no doubt as to the second prong of the Gradous test that examines whether the existing zoning is insufficiently related to the public health, safety, welfare and morals.^[15]  First, as noted in Section V.A. of this brief, the trial court incorrectly examined the zoning proposed by TAP and found it to be in the public interest. (R-194-195).  This was based upon testimony from TAP’s experts that, in their opinions, the proposed zoning served the public interest. (T-p. 126, l. 10 - p. 127, l. 20; p. 233, l. 14 - p. 235, l. 1; p. 243, l. 123 - p. 244, l. 1; p. 381, l. 9 - p. 382, l. 25).  Had the trial court examined whether the existing zoning promoted the public interest it could not have reasonably concluded anything other than it did.  The evidence in this regard demonstrated the following: that after extensive studies, the city determined that the most appropriate and defensible dividing line between commercial and non-commercial development in this area was the major thoroughfares of Lenox Road and, later, Phipps Boulevard (T-p. 676, l. 5 - p. 688, l. 17); that this boundary has been defended and protected since its inception some ten years ago with all rezonings since then being consistent with that boundary (T-p. 693, l. 16 - 695, l. 16; p. 698, l. 15 - p. 705, l. 3); that this boundary serves a critical public interest of protecting the single family North Buckhead Neighborhood from the encroachment of commercial and high density development with a rational stepdown through the creation of a transitional multi-family district (T-p. 708, ll, 8-25); that none of the several land use experts presented by TAP could agree on the next boundary if this well defined boundary was breached (T-p. 135, l. 4 - p. 136, l. 1; p. 410, ll. 19-24; p. 259, ll. 2-10); that these land use experts disagreed among themselves on which parts of the subject property was appropriate for high rise residential uses (T-p. 153, l. 24 - p. 154, l. 19; p. 394, ll. 3-19); that TAP’s expert testified that there presently exists a good market for high rise residential and that there is a greater demand for apartments in this area than there is for office (T-p. 446, l. 24 - p. 447, l. 19); and that numerous other high rise residential buildings were being, or had recently been, developed in the immediate vicinity including Park Regency, Park Avenue and One Buckhead Loop. 

The trial court failed to give any deference to the city’s consistent application of the CDP in this area.  As noted, all rezonings that have occurred along this boundary have been consistent with this long term plan.^[16]  One of the most important factors correlating existing zoning to the public welfare is conformity with the local jurisdiction’s comprehensive land use plan.  See, e.g. Moore v. Maloney, 253 Ga. 504(2) (1984).  Unlike zoning ordinances, comprehensive plans set forth broad land use policy guidelines governing future growth and development.  Typically, comprehensive plans contain a text that describes various planning functions, and a map that sets forth, in broader strokes than would a zoning map, the land use plans for any given area.  Since these plans are adopted by the governing authority after extensive public input, planning analysis and study, consistency between an existing ordinance and the land use designation appearing on the comprehensive plan demonstrates a strong link between the zoning and the public welfare.  See, e.g., DeKalb County v. Albritton Properties, supra. at 109, which held that:  “[A] comprehensive development plan may play an important role in enhancing the public health, safety, morality and welfare.”^[17]  Similarly, in Turner v. City of Atlanta, 257 Ga. 306 (1987), the property owner failed to make out a prima facie case against the city, in part because “the present zoning comports with the comprehensive development plan.”  Id.  The CDP is an important component of the city’s protection of the single family neighborhoods in this area.

TAP’s evidence could be construed, at best, only to show that its proposed mixed use development also served the public interest.  Such testimony is insufficient as a matter of law. Dekalb County v. Dobson, supra.; City of Atlanta v. Cates, supra; DeKalb County v. Chamblee Dunwoody Hotel,  supra.  As shown in Section V.A. above, the trial court’s use of the Steinberg Act to examine the proposed rezoning led to its erroneous conclusion that the proposed zoning and its “New Urbanism” was superior to the existing zoning. (R-194-195). However, an appropriate examination and weighing of the evidence under the correct legal standard would have shown that TAP did not meet its burden of showing that the existing zoning was not in the public interest.  The trial court should not have asked whether another zoning classification might be more logical or economically reasonable or more desirable on all the facts than the present zoning classification.  Moon v. Cobb County, supra.  The question should have been whether the existing zoning is unsubstantially related to public concerns, not whether it is the most logical or even a better plan. Id.  

In a situation in which the validity of the legislative classification for zoning purposes is fairly debatable, the legislative judgment must be allowed to control.  When the property in question is in a fringe area, the local governing body is the more appropriate one to shape and control the local environment according to the best interests of the locality and its citizens.  DeKalb County v. Graham, supra. at 425 (1983); Westbrook v. Board of Adjustment Company, 245 Ga. 15, 17 (1980); Holy Cross, supra. at 23-24.  In fringe areas such as this, where the periphery single family residential property is threatened by encroaching commercial development, even broader discretion should be given since “the local governing body is the ‘more appropriate one’ to decide, in the ‘best interest of the locality and its citizens,’ where ‘the line as to these encroachments’ should be drawn.” Fulton County v. Wallace,  260 Ga. 358, 360 (1990), citing from Holy Cross, supra. at p. 23.  Even where economic detriment is suffered, providing a buffer between commercial and residential areas bears a substantial relationship to the public interest. Jebco Ventures v. City of Smyrna, 259 Ga. 602-603 (1989). 

In this case the trial court usurped the city’s zoning powers in weighing the purposed zoning against the existing zoning.  Had the obvious public interest of the existing zoning been examined, it would not have been possible to conclude as the trial court did.  The city’s ability to protect its valuable in-town neighborhoods from commercial and high density encroachment must be preserved.  That its zoning designation in this case accomplishes this purpose cannot be reasonably questioned and, thus, should have been upheld.

D.  The Trial Court Erred In Requiring The City To Rezone Within Sixty Days (Error No. 4)

Where the trial court finds the first zoning decision unconstitutional and remands the matter to the local government, the process is, in essence, begun anew. City of Cumming, Georgia v. Realty Development Corp., 268 Ga. 461 (1997).  City of Atlanta Zoning Ordinance 16-27.004(1) requires that all rezonings be compatible with the CDP and no rezoning is valid unless the CDP is first amended. Moore v. Maloney, supra.  Hearings on CDP amendments are held by the city on a quarterly basis. (Exhibit 5 to Application for Discretionary Appeal).  Public hearings are required to be noticed and held on both the CDP and zoning amendment.  This time frame makes it impossible to rezone any property within sixty days.  Since the city is subject to being held in contempt of court for failure to comply with the trial court’s order to rezone within sixty days, this appeal should be granted to remand this case with direction that a deadline for compliance be set with which the city can reasonably comply.

VI.  CONCLUSION

This case is of vital importance to the ability of cities to control their commercial development and its inevitable impact on a vital city resource - its single family neighborhoods.  The trial court in this case went beyond the appropriate legal standard of review by balancing the proposed zoning against the existing zoning.  Under the correct legal standard, there could not be a finding that the existing zoning on the single family lots caused a significant detriment to TAP or that the CDP designation for all of the subject property was not in the public interest.  Accordingly, the judgment of the trial court should be reversed by this Court.  But in any event, since the trial court in this case usurped the city’s zoning powers in examining the proposed zoning under the Steinberg Act to conclude that it protected the public interest as well as the existing zoning, this case should be remanded for further review using the correct legal standard of review. 

                    Respectfully submitted,

 

SUSAN PEASE LANGFORD

CITY ATTORNEY

State Bar No. 436400

 

            

 

By:                                                                     

David D. Blum

Sr. Assistant City Attorney

State Bar No. 064500

Attorneys for Appellants

City of Atlanta Law Department

Suite 4100

68 Mitchell Street, S.W.

Atlanta, GA  30335-0332

 

(404) 330-6400

 

CERTIFICATE OF SERVICE

 

This is to certify that I have this day served counsel for the opposing party with a copy of the within and foregoing “Brief of Appellant” by placing same in the United States mail, with proper postage thereon to ensure delivery, addressed to:

Mr. Michael Brooks

Mr. Wyck Knox

Kilpatrick Stockton LLP

Suite 2800

1100 Peachtree Street

Atlanta, Georgia  30309

 

This 27th day of September, 2000.

 

 

 

                                                                            

David D. Blum

State Bar No. 064500

Attorney for Appellants

 

City of Atlanta Law Department                       

Suite 4100

68 Mitchell Street, S.W.

Atlanta, GA  30335-0332

 

(404) 330-