Are you in green compliance?

Do you want to be in green compliance? Remember that running a green business will require you to make fundamental changes throughout the organization—from the products and services you offer to your customers to the way you manage employee relations and daily functions. The most vital aspect of running a green business is to be able to prove your practices are eco-friendly. Since going green is a continuous process of business transformation rather than a one-time program, your company should set the parameters to determine the scope around your eco-friendly initiatives, establish goals for improving green performance and then constantly monitor its progress against those goals.

Nowadays, businesses face a number of “green” regulations. By implementing the required changes appropriately, you can save your business money, save your clients money and prove your commitment to a greener world. And because going green has risen in great popularity in recent years, green products and services are likely to receive a positive response and gain a competitive advantage over their rivals. If you implement green building in your workplace, it will provide a healthier and cleaner work environment for the employees and probably help you improve efficiency and lower operating costs.

Existing standards of the International Organization for Standardization (ISO 14001) can be a great benchmark for businesses trying to achieve green compliance. They provide useful guidelines for devising an environmental policy, setting eco-friendly targets and measurable objectives, managing the execution and implementation of strategies to meet objectives and targets, finding out the environmental effects of activities and taking remedial actions through management.

Going green can prove to be a complicated process. Just like other business initiatives, it will involve both simple-to-execute actions and some of the more complex requirements. While it is difficult to determine how far along the environmentally-friendly path your organization should travel, a focused initiative can really have a significant impact.

Why You Need An Attorney For Your Planning and Zoning Needs?

Are you thinking about constructing an addition to your house? Expanding your workplace? Building a fence around your backyard? Adding an extra space to the driveway? Then, the first step is to check out County or city zoning ordinances in order to find out if you need a permit or a special exception or variance has to be granted by the local zoning board. . Zoning, also called zoning planning, is a system of land use regulation that governs the kinds of activities that are allowed on particular properties, as well as, among other things,  the amount of parking space, the lot coverage a structure may have, buffers and environmental controls, the setbacks required,  and the height of buildings that are acceptable.

If you want to make sure that your interests are served in the best possible way, you should consult an experienced planning and zoning attorney when working with land use laws. No matter if your legal needs have to do with zoning, planning, construction litigation, commercial lease or any other issue concerning business or residential property, an attorney can help you with local land use laws and make sure the matter is tackled appropriately. Otherwise, there is a risk of proceeding without proper approvals and being subjected to code enforcement action.

An attorney can provide timely, experienced representation and advice to developers, builders, homeowners, community associations, religious institutions and business owners with planning and zoning needs. He/she can help you learn about legal procedures and requirements you should be aware of when dealing with zoning and planning laws. Having full knowledge of land use law is vital to make educated decisions about legal matters. Your attorney will help you with all the different state laws, local ordinances  and other legal requirements of which you may not be aware.  An attorney practicing in land use law will also ensure you have all the required documents and don’t miss vital deadlines.

In addition to this, an attorney can also be of great help if you are thinking about buying a residential property or retail business. Before planning to buy a plot of land, you will want to conduct a thorough analysis of zoning laws. Your local attorney can provide you with the latest mapping of the site and its surrounding areas in addition to advising you of any zoning restrictions on the property which may impact your future plans..

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Why An Attorney Makes Sense When Filing for Government Permits

Almost all city, county and state governments require companies and individuals to acquire permits and licenses for some aspect of their business or daily lives. . Government permits generally regulate through “ordinances the structure, appearance and safety of the society as defined by state and/or local laws, ”. Once the authorities determine that your company is complying with these ordinances, they will grant you the relevant permits, thus enabling you to run your business legally.

Getting the appropriate licenses and permits from the government is a necessity. However, dealing with government regulations can prove to be overwhelming, time-consuming and even expensive, particularly when the approval is delayed or you are faced with fines and penalties for not being able to tackle the matter appropriately from a legal point of view. In most cases, this is due to mistakes in regulatory submissions or the inclusion of out-dated/irrelevant information in the application.

This is the reason why hiring an attorney makes sense when filing for government permits. Attorneys have the experience and knowledge of dealing with government regulations and legal procedures can save you frustration and time. They are also likely to understand the hindrances that can arise when you are filing for government permits. If obtaining government permits and licenses is an unfamiliar process for you, you should hire a local attorney to work on your behalf. He/she can make the process fast, simple and trouble-free for you and make sure your interests are served in the best possible way.

An attorney can prepare, assess and file your case for government permits with the concerned authority and monitor the progress. He/she will also take care of all your paperwork and make sure you submit all the required documents and meet all the important deadlines. Moreover, an attorney who specializes in this type of work can foster and maintain the relationships necessary to get a fair shake with local government officials. In short, if you need useful advice and guidance at every step for government permit filing, then you definitely require the services of a local attorney with specialized knowledge…

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5 Reasons Your Small Business Needs a General Counsel

Among the major concerns for small business owners is the need to decide whether or not they require a general consel. Attorneys have knowledge and experience of dealing with legal issues surrounding the starting and operating of a small business. However, they usually charge a very high fee and most small businesses simply are not in a position to pay that. While you definitely don’t require a general counsel at every step of operating your business, there are some cases where you definitely need the services of an attorney:

1)         You need a general consel to draft legal contracts: It is important that you hire an attorney to draft legal contracts for you. The reason is simple—if you draft legal contracts yourself, you are likely to leave out important things, put in non-important things and make use of unclear language since you are not aware of the law. Therefore, unless you want to study, read and stay updated on the state laws and legal procedures, you need a general consel to draft your legal contracts and protect you and your company.

2)         You need a general consel for legal advice: An attorney can help you avoid needless exposure to liabilities and advise you on the best strategies for successful running of your business from a legal perspective. He/she will also help you to decide whether a limited liability company or a corporation is a better option for you to run the business.

3)         You need a general consel because you can’t offer pay-offs: You need to hire an attorney for your small business because you are not in a position to payoff your angry ex-partner or customer who was financially or physically harmed by your product or service. Thus, you can pay an attorney now or pay him/her later. By having an attorney take care of your legal requirements beforehand, you can minimize the chances of you requiring them to tackle a legal dispute later on.

4) You need general counsel to provide you with sound personnel advice: Small businesses are always encountering questions regarding employee-employer relationships, such as unemployment compensation, employee discipline, disability and discrimination issues.  By have general counsel you always have immediate access to advice needed today, not several days down the track.

5)          You need general counsel if you get sued: small businesses, no matter how well they operate and how careful they are to not break any laws get sued. It is just part of being in business.  General counsel can not only minimize your chances of getting sued, but can often settle case quickly for  you before the litigation expenses sky rocket.  Some general counsel are also litigators and can represent you in court.  Such counsel is invaluable because not only can they defend you in court, but by virtue of being your general counsel, they know your business and can bring that practical knowledge to your aid in litigation.

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RECENT GOVENRMENT LAW CASES

Buckler v. DeKalb County Bd. Of Commissioners, 299 Ga.App. 465, 683 S.E.2d 22 (July 13, 2009)

Background: Property owners submitted application for authorization to develop their property inconsistent with requirements of historic district, which was denied by the historic district, which was denied by the historic preservation commission.  Owners appealed.  County board of commissioners affirmed.  Owners filed writ of certiorari and complaint for declaratory judgment.  Parties filed cross-motions for summary judgment.  The Superior Court granted partial summary judgment to owners.  Defendants sought discretionary review of decision.  The Court of Appeals, 288 Ga.App. 346, 654 S.E. 2d 193, reversed.  Thereafter, the Superior Court ruled that designation of historic district was valid, and, based on such ruling, implicitly granted summary judgment to county on declaratory judgment claim.  Developers filed appeal with Supreme Court, which transferred appeal.

Holdings: The Court of Appeals held that:

(1) proper standard review of county’s actions in designating historic district was whether county substantially complied with statutory requirements for doing so;

(2)  resolution of board of commissioners redesignating historic district was valid, even absent proof that county’s chief executive officer signed resolution; and

(3)  evidence supported conclusion that county substantially complied with notice requirements of Historic Preservation Act (HPA) at time it enacted ordinance designating historic district.

Affirmed.

Cox v. City of Sasser, 300 Ga.App. 251, 684 S.E. 2d 385 (September 28, 2009)

Background: City brought action against property owners to enjoin them from violating zoning ordinance that barred mobile homes or manufactured homes on their property, except as a replacement for an existing non-conforming home.  The Superior Court awarded summary judgment to city.  Property owners appealed.

Holdings: The Court of Appeals held that:

(1)  Ordinance did not authorize property owners to replace 660 square foot mobile home with new 1,980 square foot home;

(2)  summary judgment affidavit of employee of home seller did not create a triable issue as to whether home was a “modular home” or a “mobile home” or “manufactured home”; and

(3)  city was not stopped from enforcing zoning ordinance

Affirmed.

Kaplan v. City of Sandy Springs, 286 Ga. 559, 690 S.E.2d 395 (March 01, 2010)

Background: Landowners brought action against city, county, and school district for damages for nuisance and trespass stemming from flow of water across their land and mandamus to order repair of 36-inch drainage pipe under landowners’ driveway.  The Superior Court granted summary judgment in favor of county.  Landowners appealed.

Holdings: The Supreme Court held that:

(1) county did not expressly accept dedication of pipe, and

(2)  county did not impliedly accept dedication of pipe.

Affirmed.

East Georgia Land and Development Co., LLC v. Baker, 286 Ga. 551, 690 S.E.2d 145 (January 25, 2010)

Background: Proceedings were initiated to establish lost county zoning ordinance.  The Superior Court entered decree establishing ordinance.  Appeal was taken by landowner affected by the ordinance.

Holdings: The Supreme Court held that:

(1) ordinance was a “public record” subject to establishment pursuant to statute for establishment of lost public records;

(2)  parol evidence was admissible to establish ordinance;

(3)  evidence was sufficient to establish ordinance;

(4)  proceedings to establish ordinance did not violate separation of powers; and

(5)  establishment of ordinance was not an unconstitutional taking of landowner’s property rights.

Affirmed.

Camden County v. Lewis, 298 Ga.App. 594, 680 S.E.2d 621 (June 29, 2009)

Background: Property owner who received a stop work order from county after he was issued a building permit for a commercial building on his property brought action seeking a writ of mandamus and other relief, alleging violation of his constitutional due process and equal protection rights, and a violation of §1983.  The Superior Court granted in part and denied in part county’s motion for summary judgment.  County applied for interlocutory appeal, which was granted, and appealed.

Holdings: The Court of Appeals held that:

(1) owner failed to point to any evidence of an officially adopted and promulgated county policy or custom that caused his alleged injuries;

(2)  owner’s alleged detrimental reliance on building permit and other things did not estop county from issuing a stop work order; and

(3)  owner was not entitled to an award of attorney fees and expenses of litigation.

Reversed.

Gunz v. Irvin, 300 Ga.App. 426, 685 S.E.2d 392 (October 08, 2009)

Background: County residents brought action against county board and four of its members for violation of the Open Meetings Act.  The trial court granted summary judgment in favor of county.  Residents appealed.

Holding: The Court of Appeals held that unscheduled gathering of four members of five member county board, county attorney, and county’s zoning administrator to discuss court decision setting aside board’s rezoning decision was not a meeting under Open Meeting Act.

Affirmed.

Braley v. City of Forest Park, 286 Ga. 760, 692 S.E.2d 595 (March 22, 2010)

Background:  Retail salvage store operator brought action seeking declaration that city ordinance regulating display of goods and merchandise for sale outside stores was unconstitutional, and that city be temporarily and permanent enjoined from enforcing ordinance.  The Superior Court granted summary judgment in favor of city, and operator appealed.

Holdings: The Supreme Court held that:

(1) city ordinance’s definition of “public sidewalk” satisfied due process requirements of fair warning;

(2)  city ordinance did not constitute an unlawful taking by regulation;

(3)  passage of city ordinance was not prohibited by Zoning Procedures Law;

(4)  store operator’s display of merchandise did not qualify as a non-conforming use;

(5)  definition of “public sidewalk” in city ordinance did not unconstitutionally conflict with state statute;

(6)  evidence was insufficient to support finding that area in which operator displayed his goods and merchandise had been expressly dedicated to the public; but

(7)  area in which operator displayed his merchandise came under purview of city ordinance because it had been devoted to, and was created with the intent of public use of sidewalks and public parking.

Affirmed.

CITY OF DORAVILLE

ORDINANCE NO. 2011-___

AN ORDINANCE TO AMEND THE CODE OF ORDINANCES, CITY OF DORAVILLE, GEORGIA AS AMENDED TO ADOPT A NEW SECTION, CHAPTER 5 BUILDINGS AND BUILDING RESTRICTIONS, ARTICLE V DESIGN GUIDELINES FOR COMMERCIAL AND OFFICE DEVELOPMENT, TO PROVIDE PENALITIES; TO PROVIDE FOR REPEAL OF CONFLICTING ORDINANCES; TO PROVIDE FOR THE ADOPTION OF A PREAMBLE; TO PROVIDE FOR AN ADOPTION AND EFFECTIVE DATE; TO PROVIDE FOR CODIFICATION; AND TO PROVIDE FOR OTHER LAWFUL PURPOSES.

WHEREAS, the City staff regularly advises Council and attempts to follow and recommend change to ordinance in light of changing laws and conditions; and;

WHEREAS, the health, safety, welfare and aesthetics of the citizens of the City of Doraville shall be improved and protected by adoption and implementation of this Ordinance.

THE MAYOR AND COUNCIL OF THE CITY OF DORAVILLE, GEORGIA HEREBY ORDAIN:

Section 1.

That the Code of Ordinances, City of Doraville, Georgia is hereby amended by adding a section to be numbered Design Guidelines for Commercial and Office Development, Chapter 5, Sections 5-200 through 5-203, which said sections read as follows:

Chapter 5.  Buildings and Building Restrictions.

.  .  .

Article V.  Design Guidelines.

.  .  .

Sec. 5-200.  Purpose and intent.

The City of Doraville Design Guidelines are intended to:

• Support the intent of the zoning ordinance, comprehensive plan, and other land use/development guidelines.
• Protect and enhance the character and quality of non-residential areas while maintaining and strengthening a recognizable identity and character that is unique to Doraville.
• Enhance the viability of the non-residential areas which are gateways within and through Doraville in order to promote and sustain economic stability.
• To achieve and maintain a unified and pleasing aesthetic/visual quality in the context elements of the natural, human, and built environments.
• Enhance the human scale of non-residential developments and respect the scale and character of residential neighborhoods that adjoin commercial and office uses.
• Mitigate the negative visual impacts arising from the scale, bulk, and mass inherent to large non-residential buildings and centers.
• To encourage environmentally friendly standards where possible.
• To encourage cooperation in development between builders, developers, the business community, the City and its citizens.
• To promote alternate modes of transportation within the City through the provision of people friendly environments in accordance with Neo-Traditional Design principals.
• Establish an architectural building style within Doraville which is distinct from the non-specific vernacular in existence on the date of the adoption of this article.
• Promote building designs and practices that are adaptable to multiple uses for extended building lifecycles.
• Balance the economic requirements of development with aesthetic concerns of the community.
• To encourage a sense of place for Doraville citizens and visitors.

Sec. 5-201.  Definitions.

Addition: To add a new part such as a wing, ell, or porch to an existing building or structure.

Alteration: To make a visible change to the exterior of a building or structure. For the purposes set forth herein, alteration includes painting of other than normal maintenance when a color change occurs.

Arcade: A succession of arches, each counterthrusting the next, supported by columns or piers or a covered walk enclosed by a line of such arches on one or both sides.

Arcading or blind arcade: A series of arches, raised on columns, that are represented in relief as decoration of a solid wall.

Arch: A curved or pointed opening in a wall, usually masonry, supported on either end by piers or pillars and spanning a passageway or open area.

Architrave: The lowermost part of an entablature, resting directly on top of a column in classical architecture. Also, means the molding around a door or window.

Articulation: Shapes and surfaces having joints or segments which subdivide the area or elements and which add scale and rhythm to an otherwise plain surface.

Baluster:  One of a number of short vertical numbers used to support a railing.

Balustrade: A railing or parapet supported by a row of short pillars or balusters.

Band: A flat horizontal fascia, or a continuous member or series of moldings projecting slightly from the wall plane, encircling a building or along a wall that makes a division in the wall.

Bond: An arrangement of masonry units laid in a particular pattern that provides a contrasting stringcourse to the building’s primary masonry pattern.

Border: A margin, rim, or edge around or along an element; a design or decorative strip on the edge of an element.

Bracket: A wooden or stone decorative support beneath a projecting floor, window, or cornice.

Cap: The top member of any vertical architectural element that projects such as the cornice of a wall or the transform of a door.

Canopy:  A covered area which extends from the wall of a building, protecting an enclosure such as a door or window.

Column: A vertical support, usually supporting a member above.

Coping: The top course of a wall which covers and protects the wall from the effects of weather.

Corbelling: Courses of masonry that project out in a series of steps from a wall. In commercial architecture, the corbelling is usually brick and is part of the cornice at the top of the façade.

Cornice: The upper, projecting part of a classical entablature or a decorative treatment of the eaves of a roof.

Crenellation:  A pattern of repeated depressed openings in a parapet wall.

Eave:  The projecting overhang at the lower edge of a roof that sheds rainwater.

Elevation: A drawing showing the vertical, exterior elements of a building as a direct projection to a vertical plane.

Entablature: The upper section of a classical order, resting on the capital, and including the architrave, frieze, and cornice.

Façade: Any face of any elevation of a building.

Fenestration: Generally, the design and placement of windows; doors; and other openings in a structure.

Fret: An ornamental design consisting of repeated and symmetrical figures, often in relief, contained in a band or border.

Fretwork: Ornamental work consisting if three-dimensional frets; geometric openwork.

Frieze: A plain or decorated horizontal part of an entablature between the architrave and the cornice.

Gable:  The triangular portion of the end of a wall under a pitched roof.

Glazing: Another term for glass or other transparent materials used in windows, but shall not include Lucite style panels, glass block, or Plexi-glass.

Lintel:  A horizontal beam over an opening carrying the weight of the wall.

Membrane Roof:  A roof covering consisting of a single ply of rubber.

Molding: A decorative profile given to architectural cavities or projections such as cornices, bases, or door and window jambs/heads.

Neo-Traditional Design Principals:  Contemporary architecture that borrows from the past using decorative details to add a nostalgic aura to an otherwise modern day structure including features like shutters and weather vanes which are ornamental but serve no practical purpose.

Overlay Zoning District:  A set of legal regulations that are imposed on properties in a particular area or district that are additional requirements to the existing zoning regulations in effect for those properties.

Parapet: A low wall above a roof line, terrace, or porch and may be decorated.

Patina:  The appearance of a material’s surface that has aged and weathered. It often refers to the green film that forms on copper and bronze.

Pediment:  The triangular gable end of a roof, especially as seen in classical architecture such as Greek temples.

Pier: An upright structure of masonry serving as a principal support.

Pilaster: A pier attached to a wall with a shallow depth and sometimes treated as a classical column with a base, shaft, and capital.

Pitch: The degree of slope of a roof.

Portico: An entrance porch often supported by columns and sometimes topped by a pedimented roof which can be open or partially enclosed.

Quoin: A series of stones or bricks used to mark or visually reinforce the exterior corners of a building and often through a contrast of size, shape, color, or material.

Relief: A projecting wall decoration raised above the background plane.

Reveal: The depth of wall thickness between its outer face and a window or door set in an opening.

Rhythm: Any kind of movement characterized by the regular occurrence of elements, lines, shapes, and forms.

Sill:  The horizontal water-shedding member at the bottom of a door or a window.

Soffit: A ceiling exposed underside surface of a roof, overhang, archway, balcony, beam, or column.

Vernacular: Indigenous architecture that is generally not designed by an architect and may be characteristic of a particular area.

Window: An opening in an exterior wall of a building to emit light and/or air.

Sec. 5-202.  Applicability.

(a) Unless specifically provided otherwise within the Doraville Zoning Ordinance, conditional zoning, or corridor overlay, any new building which is 1,000 heated square feet or greater in footprint size but not larger than 10,000 square feet, located within commercial or office districts, constructed after January 31, 2011 shall have full exterior wall façade architectural treatments of brick, stacked stone, or any combination thereof of brick and/or stacked stone (excluding fenestration glazing) on all elevations of the structure. Buildings which are 10,000 square feet or greater in size may include up to twenty (20) percent of the façade elevation with hard coat stucco and brick and/or stacked stone (excluding fenestration glazing). On all buildings of any size, stone products shall not be placed in a vertical fashion and applied to an exterior building surface unless it has a finished exterior plane and a rectangular, symmetrical shape. Within these areas, metal sided buildings shall be prohibited on any elevation. Primary materials shall extend into gable areas. These design guidelines are not applicable to a mixed use district which contains residential dwelling units. Once a Certificate of Occupancy is obtained, no further alteration and/or addition shall occur except in accordance with these design guidelines.

(b) Roofs shall be architecturally detailed. Flat roofs need a cornice or a parapet. Gable roofs need overhangs and gable trim. Roof and/or parapet wall elevations shall be enhanced on all elevations by one or more of the following: corbelling, coping, crenellation, fret, balustrade, and the like as detailed herein.

(c) Façade elevations which face a public right-of-way shall be enhanced in one or more of the following fashions in order to provide architectural relief: arcading, arching, architrave, articulation, banding, blind or false windows, bonding, bordering, bracketure, canopy, columns/pilaster, corbelling, entablature, molding, quoins, reveals, and the like as detailed herein. Ground floor elevations shall have no less than twenty (20) percent of street facing elevations devoted to glass surface(s) other than an entry and/or exit door and these glass surfaces shall not extend nearer than two (2) feet to the finished ground level. Windowless sections of walls shall not exceed twenty (20) feet in length.

(d) All roofing materials shall be of a consistent style and pattern. Pitched roofs shall be finished in either dimensional shingles or standing seemed metal or a combination thereof to articulate roof projections. Rubber membrane roofs or built-up roofs can be used on flat or sloping roofs that are not visible from public areas. Metal standing seemed roof material shall be black, brown, bronze, dark dray, copper, or dark green in color. The use of true copper materials shall be encouraged given the patina it acquires with age and exposure. Shingle colors shall be black, gray, or brown in a neutral palate.

(e) Roof mounted utilities (including, but not limited to, heating, air conditioning, and ventilation equipment) shall be screened from street level view by one or more of the methods described herein so as to provide an opaque screening wall.

(f) Loading and unloading service areas, roll up door areas, docks and/or otherwise service/utility areas shall be screened from the public right-of-way by one or more of the methods described herein to a height of eight (8) feet above the mean grade of these areas.

(g) Window frames and doors shall be constructed of a pre-finished material which is clad in white, off-white, almond, bronze, or black and shall be consistent on all elevations of the structure. Window frames and doors shall not require seasonal or periodic painting. Windows shall not contain security bars on street facing elevations. Clear, low E, or slightly tinted glazing should be used to ensure the visibility from the sidewalk and to minimize the glare produced by highly reflective glass. No more than ten (10) percent daylight reduction shall be permitted. No building façade shall exceed seventy (70) percent glass surface. Generally the use of large expanses of plate glass shall be discouraged with preference given to true-divided or true-divided effect multi-pane glass surface(s) or articulated consistent or cohesive in manner in keeping with the architecture. Glass curtain walls shall be prohibited. Mirrored glass with a reflection greater than twenty (20) percent shall be prohibited.

(h) Window heads and lintels shall be of matching materials and shall be complimentary to the built form. The use of quarried stone materials for window heads and lintels in strongly encouraged.

(i) The use of neon or other illumination around or to outline either internally or externally fenestration shall be prohibited.

(j) Any columns utilized shall be appropriate in scale to the roof or upper story they may be supporting. Generally, columns which are smaller than 6” x 6” shall not be considered to be proportionate.

(k) All requirements of the LEED ordinance are in effect and inclusive to this document.

Sec. 2-202.  Design themes.

(a) Façade Treatments/Architectural Detailing: Facades should present a pattern of architectural variety through modulation of the wall plane, detailing, color, texture, and materials. Building facades should provide elements of architectural scale and proportion that relate to the storefront/facade height, the overall building scale, and the human scale of the pedestrian environment. Architectural elements should emphasize primary building entries, important corners, vistas, or significant architectural features.

Multi-story buildings:

(b) Multi-story buildings of three (3) or more stories shall utilize design concepts which also include projection of windows, cantilevered areas, strong corner features, and setback of upper floor(s) and roof line.

(c) Doors and Windows: By varying the spacing, size, shapes and locations of door and window openings in building facades, structures may be made more visually interesting and attractive. However, care must be taken to avoid too much variety or the end result will be a chaotic, cluttered, building façade. It is especially important to vary the placement of doors and windows on buildings located in close proximity to each other in the same development. In addition, windows and doors may be recessed into or projected out of structures to emphasize important areas of the building.

(d) Building Mass and Scale: Building massing and scale should be in keeping with the scale and proportions of adjacent buildings. Large building masses should be broken up into human scaled proportions by incorporating items such as wall planes recesses and projections (e.g. corbelling).

(e) Entrances to buildings shall be easily recognizable. Covered entrances, porches, and arcades are desirable because they serve to identify entrances and provide shelter from the sun and weather. A protected entrance is not only functional, but also produces a sense of privacy. Front entrances should be designed as significant architectural features. Porches and entryways may be used to visually break up large, monolithic building into smaller units more in keeping with human scale. Porches may be constructed of wood, stucco, stone, brick, and other similar materials. Wrought iron is seldom visually effective as a building or structure support because it is too insubstantial.  However, wrought iron railings are acceptable.

Sec. 5-203.  Materials detail.

The use of Super Brick or Quik Brick products which are larger than brick materials generally found in residential construction shall be limited to not more than twenty (20) percent of the exterior façade on buildings less than 10,000 square feet in size. Colored concrete products shall be prohibited on façade elevations other than as accents around doors and windows. On buildings larger than 10,000 square feet, the use of Super Brick or Quik brick shall be permissible.

Generally brick colors shall be one (1) or more combination of natural browns, tans, beiges, oranges, and subdued shades of red as detailed in a materials sample board. Brick which is white in color shall not be permitted.  Mortar colors shall be complimentary to the color palette chosen.

Colored mortars are permissible provided they are complimentary to brick or stone and are consistent in the design scheme.

The use of squeezed or flowing, waterfall style mortar shall be prohibited unless specifically approved by the City Council.

.  .  .”

Section 2.

a.         It is hereby declared to be the intention of the Mayor and Council that all sections, paragraphs, sentences, clauses and phrases of this Ordinance are or were, upon their enactment, believed by the Mayor and Council to be fully valid, enforceable and constitutional.

b.         It is hereby declared to be the intention of the Mayor and Council that, to the greatest extent allowed by law, each and every section, paragraph, sentence, clause or phrase of this Ordinance is severable from every other section, paragraph, sentence, clause or phrase of this Ordinance.  It is hereby further declared to be the intention of the Mayor and Council that, to the greatest extent allowed by law, no section, paragraph, sentence, clause or phrase of this Ordinance is mutually dependent upon any other section paragraph, sentence, clause or phrase of this Ordinance.

c.         In the event that any phrase, clause, sentence, paragraph or section of this Ordinance shall, for any reason whatsoever, be declared invalid, unconstitutional or otherwise unenforceable by the valid judgment or decree of any court of competent jurisdiction, it is the express intent of the Mayor and Council that such invalidity, unconstitutionality or unenforceability shall, to the greatest extent allowed by law, not render invalid, unconstitutional or otherwise unenforceable any of the remaining phrases, clauses, sentences, paragraphs or sections of the Ordinance and that, to the greatest extent allowed by law, all remaining phrases, clauses, sentences, paragraphs and sections of the Ordinance shall remain valid, constitutional, enforceable, and of full force and effect.

Section 3.

Penalties provided for violations of this Ordinance are set out in Section 1-12, as amended, of the Code of Ordinances, City of Doraville, Georgia and are hereby incorporated as if set out fully.

Section 4.

All ordinances or parts of ordinances in conflict herewith are hereby expressly repealed.

Section 5.

The preamble of this Ordinance shall be considered to be and is hereby incorporated by reference as if fully set out herein.

Section 6.

The Ordinance shall be codified in a manner consistent with the laws of the State of Georgia and the City of Doraville.

Section 7.

It is in the intention of the governing body, and it is hereby ordained that the provisions of this Ordinance shall become and be made part of the code Ordinances, City of Doraville, Georgia and the sections of this Ordinance may be renumbered to accomplish such intention.

Section 8.

This Ordinance shall become effective upon its adoption by the Mayor and Council.

SO ORDAINED, this ______ day of _________________________, 2011.

CITY OF DORAVILLE

­­­­­­­­­­­

Mayor

First Reading                                                              Second Reading

ATTEST:

(SEAL)

Melissa McCain, City Clerk

APPROVED AS TO FORM:

Murray J. Weed, City Attorney

Yea        Nay

Maria Alexander                 ¨ ¨

Brian Bates                           ¨ ¨

Pam Fleming                        ¨ ¨

Karen Pachuta                     ¨ ¨

Donna Pittman                    ¨ ¨

Bob Roche                            ¨ ¨

RECENT LEGISLATION

BILLS PASSED IN 2010 LEGISLATIVE SESSION

HB 516:  Industrialized Buildings

This bill requires industrialized buildings to meet only state minimum standard codes and prohibits local governments, by local ordinance or regulation, from excluding residential industrialized buildings from being sited in a residential district solely because the building is a residential industrialized building.  The legislation states that local government authority that is preserved includes local land use and zoning, building setback and rear yard requirements, utility connections, subdivision regulations, and architectural and esthetic requirements.

Effective Date:  May 20, 2010.

HB 1388:  Financing for Green Projects

This legislation authorizes downtown development authorities and development authorities to provide financing to property owners to improve their property in order to reduce the energy or water consumption on such property or to install an improvement to such property that produces energy from renewable resources.

Effective Date:  July 1, 2010.

HB 1059:  Composting Landfills

The bill allows minor permit modifications when an existing, permitted landfill creates a composting facility on-site.  The permit holder for the landfill must provide written notice to the chief elected official of the jurisdiction in which the facility is located at least thirty days prior to starting any recovered materials processing facility.  The permit holder is required to comply with all applicable local zoning ordinances and may be required to report the total amount of material diverted from landfill disposal.

Effective Date:  July 1, 2010.

HB 1388:  Allow Development Authorities to Finance Water and Energy Conservation Projects

This legislation allows development authorities to provide financing to property owners for water conservation, energy efficiency, and renewable energy projects on private property.  The legislation is permissive and does not require development authorities to offer this service.

Effective Date:  July 1, 2010.

SB 370:  Water Supply and Conservation

The legislation establishes a program to encourage voluntary monitoring of agricultural water withdrawals from surface waters.

New multi-tenant residential, commercial or industrial buildings permitted on or after July 1, 2012 are required to have submetering of each unit for water usage.  Public water systems are prohibited from charging a fee for installation or use of privately-owned meters.

The Department of Community Affairs is required to establish plumbing codes which meet certain water conservation standards by July 1, 2012.  The bill also creates a 12 member legislative Joint Committee on Water Supply to look at reservoir and enhanced water supply options, with a report due by December 31, 2010.

Effective Date:  June 1, 2010.

HB 136: Industrial Area Annexation

This proposed constitutional amendment allows the owners of real property located within industrial areas to remove the property from the industrial area and annex it into the city providing water service or fire service to the property.

Effective Date:  Subject to Referendum.

Presented by

LINDA I. DUNLAVY

DUNLAVY LAW GROUP, LLC.

1026 B Atlanta Avenue

Decatur, Georgia 30030

(404) 371-4101

www.dunlavylawgroup.com

Zoning Law and Trial of a Zoning Case

By:  Linda I. Dunlavy[1]

And Brandon L. Bowen

TABLE OF CONTENTS

Page

I.          Introduction: The Power to Zone …………………………………………………………………… 1

II.        Proceedings before the Local Governing Body……………………………………………….. 2

A.      Drafting and Processing an Application……………………………………………….. 3

B.      Exhaust Administrative Remedies…………………………………………………………. 4

C.      Raise Constitutional Objections……………………………………………………………… 5

D.      Appeal Must be Timely……………………………………………………………………………. 8

E.      Zoning Procedures Law Requirements: Take Seriously ……………………….. 11

F.      Follow the Open Meetings Act……………………………………………………………….. 13

G.      Comply with the Local Charter, Enabling Act, and Local Ordinances…… 13

III.       Proceedings in Superior Court……………………………………………………………………….. 15

A.      File in the Local Superior Court, and Get the Parties Right………………….. 15

B.      Prepare to Prove Standing……………………………………………………………………… 19

C.      Making the Right Claims……………………………………………………………………….. 20

D.      Getting Damages and Fees…………………………………………………………………….. 27

IV.       Proceedings in Appellate Court………………………………………………………………………. 29

A.      When in Doubt, File a Discretionary Appeal Application………………………. 29

B.      Determine the Proper Appellate Court………………………………………………….. 32

C.      When Filing an Application, be Persuasive & Follow the Court’s Rules.. 33

I.         INTRODUCTION

Georgia law regarding development and land use derives initially from the State Constitution. Since 1983, the authority to enact development and land use regulations has been given to local government, with the General Assembly reserving the right to enact certain procedural requirements governing the exercise of that authority. The key state constitutional provisions, Article IX, Section II, Paragraphs I and IV, Georgia Constitution, provide (in pertinent part) as follows:

The governing authority of each county shall have legislative power to adopt clearly reasonable ordinances, resolutions, or regulations relating to its property, affairs, and local government for which no provision has been made by general law and which is not inconsistent with this Constitution or any local law applicable thereto. Any such local law shall remain in force and effect until amended or repealed as provided in subparagraph (b). This, however, shall not restrict the authority of the General Assembly by general law to further define this power or to broaden, limit, or otherwise regulate the exercise thereof. (Paragraph 1, in part).

The governing authority of each county and of each municipality may adopt plans and may exercise the power of zoning. This authorization shall not prohibit the General Assembly from enacting general laws establishing procedures for the exercise of such power. (Paragraph 4).

“Zoning” is the regulation by a county or a municipality of the use of land within the community and of the buildings and structures thereon. “Zoning” generally involves the specification of uses that are permitted and the standards by which the uses must comply, i.e. set backs, lot coverage, building height, etc.  The Georgia Zoning Procedures Law (discussed at more length below) states that “zoning” means:

[T]he power of local governments to provide within their respective territorial boundaries for the zoning or districting of property for various uses and the prohibition of other or different uses within such zones or districts and for the regulation of development and the improvements of real estate within such zones or districts in accordance with the uses of property for which such zones or districts were established.

O.C.G.A. § 33-66-3(3).

As alternatively stated by the Supreme Court of Georgia, “zoning” involves “dividing a governmental unit into zones or districts and applying different standards to such zones or districts in regard to property therein.” Greater Atlanta Home Builders Association v. DeKalb County, 277 Ga. 295 (2003); City of Decatur v. DeKalb County, 256 Ga. App. 46 (2002).  However, not every land use regulation is “zoning”.  Generally, it does not include a tree ordinance (Greater Atlanta Home Builders Association v. DeKalb County, supra.); licensing regulations (Fairfax M.K., citing Mayor and City Council of Baltimore v. Dembo, 123 Md. App. 527 (1988); historic preservation regulations (Cf. Buckler v. DeKalb County; 299 Ga. App. 465 (2009)); or other regulations not keying particular regulations by zoning district.

“Zoning” does not include the granting of variances by a quasi judicial body such as a Zoning Board of Appeals or a Board of Zoning Adjustments.  Bentley v. Chastain, 242 Ga. 348 (1978).  These are quasi-judicial administrative decisions, the legal court challenge of which is procedurally and substantively distinct from a straight zoning court challenge.

II.       PROCEEDINGS BEFORE THE LOCAL BODY

The first stage of any zoning case or administrative zoning matter (i.e. variance or special exception request) will be the proceedings before the local body, whether of a city or a county[2].  The following are issues that should be covered at this initial stage.

A.        Drafting and Processing the Application

Whether it be a rezoning, a variance, or an application for a special exception the approach taken in preparation of applications may be the difference between getting favorable results and being denied. It is extremely important to file a complete and thorough application. Be sure to thoroughly review, understand and discuss zoning maps, surrounding uses, and zoning.  Be precise, i.e. make sure your legal description closes and matches your survey.  Since requirements vary widely between jurisdictions, always check when in an unfamiliar jurisdiction what is required. Utilize any checklists provided by zoning and planning authorities and follow them. Use your statement of intent or impact statement not in a perfunctory manner, but as a means to try and persuade the zoning staff who will be analyzing the application, the neighboring property owners and the decision makers.

Subsequent to filing the application, or even before, contact adjoining property owners and civic groups. Mail letters, set up meetings, call people – whatever it takes to get meaningful public participation, then work on getting them to support your application prior to the commencement of public hearings, if possible. Provide citizens and staff with well organized, relevant information, i.e. traffic noise; environmental study where appropriate; renderings of structures; landscape; elevations; sign and distances, photographs, etc., whatever it takes to assist in visualizing and understanding the project.  Allow your self plenty of time.  The more time you spend front loading the process, the more you enhance your chances of success.

Where permitted (i.e. quasi-legislative processes), get the decision makers in the loop, meet with them (city councilman, commissioners, planning commissioners, NPU reps, etc.), call them, provide supporting documents to them, ask them to neighborhood meetings and ultimately persuade them.  Make constitutional objections and file documents for the record where needed.  Hire a court reporter if one is not provided by the local jurisdiction.  This is particularly important for administrative zoning matters where the appeal is one “on the record”. Better to spend a few bucks on a take down, than find yourself without a transcript of the proceedings!

B.        Exhaust Administrative Remedies.

Under Georgia law, it is generally true that a party must first exhaust available administrative remedies before taking its claim to Superior Court. DeKalb County v. Cooper Homes, 283 Ga. 111 (2008); Little v. City of Lawrenceville, 272 Ga.  340 (2000). The purpose of the exhaustion requirement is to allow the local authority an opportunity to decide the issue and prevent unnecessary judicial intervention into local affairs.  The rule also is intended to promote judicial economy.  See, e.g., Cooper v. Unified Government of Athens-Clarke County, 277 Ga.  360 (2003); Powell v. City of Snellville, 266 Ga. at 316 (1996) citing Village Centers v. DeKalb County, 248 Ga. 177 (1981).  However, the mere existence of an unexhausted administrative remedy does not always provide a defendant with an absolute defense to court action.  AT & T Wireless PCS, Inc. v. Leafmore Forest Condominium Association of Owners, 235Ga. App. 319 (1998).

There are long recognized exceptions to the exhaustion of remedies rule.  For example, a litigant is not required to exhaust administrative remedies when: 1) the litigant challenges the power of the agency to issue an order; (in Leafmore exhaustion not required because litigant challenged authority of Public Works to issue building permit contrary to conditions of zoning); in DBL, Inc. v. Carson, 284 Ga.APP. 898 (2007) (exhaustion not required because litigant challenged power of Coastal Marshlands Protection Committee to issue a water bottom lease); 2)  a litigant seeks to enforce a right established by the adoption of a zoning ordinance (Martin v. Hatfield, 251 Ga. 638 (1983)); 3) the administrative remedy provided is optional (Hunnicut v. Georgia Power Company, 168 Ga. App. 525 (1983)); or 4) to require exhaustion would be to require a futile act (City of Albany v. Oxford Solid Waste Landfill, Inc.,  267 Ga. 283 (1996); Powell v. City of Snellville, 266 Ga. 315 (1996); Glynn County Board of Education v. Lane, 261 Ga. 544 (1991); WMM Properties, Inc. v.  Cobb County, 255 Ga.  436 (1986)).

However, it is better practice to exhaust your remedies by first filing an application or an appeal of an adverse administrative zoning decision rather than attempting to hang your hat on these narrowly circumscribed exceptions to the doctrine.

C.         Raise Constitutional Objections.

Probably the most important thing a lawyer needs to do in the “straight zoning case” prior to a decision thereon by the local governing body is make constitutional objections.  Failure to raise constitutional challenges prior to the rendering of an adverse decision will result in the property owner being barred from challenging the zoning classification, unless the owner is making a facial challenge.  The Supreme Court has repeatedly stated that constitutional challenges to a zoning classification cannot be brought in superior court for the first time; they must be raised first with the local governing body.  Chambers of Georgia, Inc. v. Department of Natural Resources, 232 Ga.App. 632, 502 S.E.2d 553 (1998); Cobb County Bd. of Com’rs v. Poss, 257 Ga. 393, 359 S.E.2d 900 (1987).

To avoid the harsh consequences of failing to raise these constitutional challenges it is recommended that constitutional challenges become a standard part of your written zoning application.  Most jurisdictions require a statement of intent in support of your zoning request.  Include, as a matter of routine, constitutional objections (whether or not you anticipate a negative decision) should be drafted as part of the statement of intent. For example, you need merely have a standard “constitutional objections” section which states something similar to as follows:

The existing inconsistent zoning classifications constitute, and all zoning and plan classifications intervening between the existing inconsistent zoning classification and that required to develop this project would constitute a taking of the owner’s private property without just compensation and without due process in violation of the Fifth Amendment and Fourteenth Amendment of the Constitution of the United States, and Article I, Section I, Paragraph I and Article I, Section III, Paragraph I of the Constitution of the State of Georgia and the Due Process Clause of the Fourteenth Amendment of the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.

The Applicant further respectfully submits that the Board of Commissioners cannot lawfully impose more restrictive standards upon the development of the property than presently exists as to do so not only would constitute a taking of the property as set forth above, but also would amount to an unlawful delegation of their authority, in response to neighborhood opposition, in violation of Article IX, Section IV, Paragraph II of the Georgia Constitution. Moreover, in the event of opposition to the proposed rezoning, the Applicant submits that opponents do not have standing to assert opposition and can prove no special damages as per the specially aggrieved citizen test.”

Constitutional challenges need not be made with such specificity.  Under Ashkouti v. City of Suwanee, 271 Ga. 154, 516 S.E.2d 785 (1999), the court lightened the long standing requirements more specific requirements for the making of a legally sufficient constitutional challenge.  Applicants are not required to cite a specific provision of the constitution that is violated and state the manner of the violation.  A simple assertion that the denial of the rezoning would violate the applicant’s constitutional rights to equal protection and due process is sufficient.  However, failure to satisfy these minimal requirements will bar the suit. Id.

It should also be noted that the courts have on occasion applied this rule to bar claims that do not present issues of constitutional law.  For example, in Trend Development Corp. v Douglas County, 259 Ga. 425, 383 S.E.2d 123 (1989), the Supreme Court held that pleas in bar must also be raised before the local government.  In that case, the plea was res judicata based on a prior zoning decision.  Because the County did not raise the res judicata claim while the matter was pending before its governing body, the Supreme Court held that it was waived.  Similarly, in RCG Properties, LLC v. City of Atlanta Bd. of Zoning Adjustment, 260 Ga.App. 355, 579 S.E.2d 782 (2003), in the context of an administrative appeal, the Court of Appeals held that the local government’s challenge to the standing of the challenger could not be raised for the first time in court, and was waived because standing was not raised when the case was before the local Zoning Board of Adjustment.  The best practical advice one can take away from these rulings is, in the utmost of caution and when in doubt file a written objection prior to any decision, be it a “straight zoning” or an “administrative zoning appeal”, be it a constitutional or other objection.

D.       Appeal must be timely.

Challenges to zoning decisions must be brought within 30 days.  Village Centers, Inc. v. DeKalb County, 248 Ga. 177, 281 S.E.2d 522 (1981).  This requirement can catch property owners unawares when the rezoning at issue is one instituted by the local governing body, such as the adoption of a new zoning ordinance and map.  The new ordinance cannot be challenged years later, without first applying for a rezoning.  Wilson v. City of Snellville, 256 Ga. 734, 352 S.E.2d 759 (1987).  This time limit cannot be extended by the superior courts.

The 30-day rule has been held to flow from the 30-day appeal time for appeals to the superior court.  Under that case law, the 30 days run from the decision being reduced to writing.  In some jurisdictions, that may only happen when the minutes of the meeting are adopted, which, under the Open Meetings Act, may be weeks later at the next regular council meeting.  See Chadwick v. Gwinnett County, 257 Ga. 59, 354 S.E. 2d 420 (1987).  Quite frankly, in my practice I file any appeal within 30 days of the hearing at which the decision was made—it just seems like the cautious and least fraught with peril way to proceed.

The 30-day requirement does not apply outside of the “straight zoning” case.  If the property owner is seeking the issuance of a building permit under the existing zoning classification, the proper action is to file a petition for a writ of mandamus or, if specified under the local jurisdiction’s ordinance, a certiorari petition within the time specified in the local ordinance. See Martin v. Hatfield, 251 Ga. 638, 308 S.E.2d 833 (1983).  This type of case is not a constitutional challenge to a zoning ordinance, but rather the attempt to force a public officer to do his duty.  The courts view this as attempting to enforce a right established by the current zoning, rather than a challenge to the current zoning.  However, that being said, most practitioners will bring a suit even vaguely resembling a zoning suit within 30 days to prevent a challenge to its timeliness, and to preserve the opportunity to bring constitutional challenges.

Arguably, the 30-day time bar only applies to the denial or approval of rezoning applications for specific property by a governing authority.  See, e.g., Wilson v. City of Snellville, 256 Ga. 734 (1987)(challenge to City’s pre-ZPL adoption of new zoning ordinance and map brought by effected property owner 3 years after action found to be time barred because the published newspaper notice of the proposed zoning action was adequate);  Village Centers, Inc. v. DeKalb County, 248 Ga. 177 (1981)(Zoning applicants’ complaint in equity challenging zoning on property almost 1-1/2 years after same applicant’s rezoning request denied was time barred under 30 day limitation); Hollberg v. Spalding County, 281 Ga. App. 768 (2008) (adjoining land owner challenging decision to rezone a tract of land more than 30 days after the decision was time barred even though he coupled the challenge with an alleged ZPL violation). It does not apply where a denial of procedural due process is the crux of your case. In such instances, Georgia courts have recognized the viability of a challenge long after the expiration of the 30 day limit.  The reasoning is that without due process, the rezoning is void and can be challenged at any time, as it was void.  Golden v. White, 253 Ga. 111, 316 S.E.2d 460 (1984).  Tilley Properties v. Bartow County, 261 Ga. 153 (1991) was decided in 1991 long after establishment of the 30 day rule in Village Centers.  The property owners in Tilley argued that the entire Bartow County Zoning Ordinance was null and void because it had not been adopted pursuant to the ZPL: 1) there was no public notice in a newspaper regarding adoption of policies and procedures; 2) there was no public hearing on the policies and procedures; and 3) there was no mention of the policies and procedures in the ordinance. The Plaintiff did not challenge the defective adoption until over four years after the Zoning Ordinance was adopted. Nonetheless, the Georgia Supreme Court held the Bartow County zoning ordinance void for failure to comply with the challenged notice and hearing requirements of the ZPL.  Tilley is still good law and there is no reason to believe that the appellate courts of today would apply the 30-day time bar in a similar case today.  However, clarification on this issue may come from a case currently seeking discretionary review in the Georgia Supreme Court, 400 North Landfill v. Lumpkin County, Docket #S11D0091.

When the question is not whether the decision was valid, but what is the effect of the decision, then the courts have also not applied the 30-day rule on the grounds that this calls for a declaratory judgment, rather than an appeal.  In Head v. DeKalb Co., 246 Ga.App. 756, 542 S.E.2d 176 (2000), there was confusion as to whether the vote actually approved or denied the rezoning, because of particular procedural rules of DeKalb County.  The county attorney offered an opinion that the rezoning failed, and the neighbors went home happy.  The developer’s attorney convinced the county attorney that the rezoning actually did satisfy the procedural technicalities, and so the map was changed and permits issued.  It was several months before the neighbors learned of this, when dirt started to be moved.  They brought suit several months after the rezoning, and were not barred by the 30-day limitation.

E.         Zoning Procedures Law requirements:

take seriously

In enacting the Zoning Procedures Law, O.C.G.A. Section 36-66-1 et. seq., in 1986, the General Assembly established minimum procedures governing the exercise of zoning power by local governments in order to assure that due process is afforded to those potentially affected by the exercise. See, e.g., City of Roswell v. Outdoor Systems, Inc., 274 Ga. 130 (2001); McClure v. Davidson, 258 Ga. 706, 710 (1988). These procedures provide for the advertising of the public hearing on a requested rezoning, the installation of signs on the property and notice to neighboring property owners within 15 to 45 days prior to the public hearing on the rezoning request.  The procedures set forth in the ZPL are mandatory; the state legislature did not “state that the procedures were to be used as guidelines by local governments.” McClure, 258 Ga. at 710. So if a local government adopts a “zoning ordinance” or makes a “zoning decision” without following the notice and hearing requirements of the ZPL, what are the consequences?

In McClure v. Davidson, 258 Ga. 706 (1988) for example, the rezoning of a 20-acre tract from A-1 to B-1 was set aside due to failure to observe the advertising requirements of O.C.G.A. § 36-66-4(c). The result most local governments fear came to pass in Tilley Properties, Inc. v. Bartow County, 261 Ga. 153 (1991). There, after a rezoning application had been denied, the unsuccessful applicant sued Bartow County on grounds that it was not required to secure rezoning of the property because the ordinance had not been adopted in compliance with the ZPL. The unsuccessful property owners urged that no valid ordinance even existed in Bartow County since it had not, prior to adopting zoning policies and procedures, held the public hearing required in O.C.G.A. § 36-66-5. The Supreme Court agreed, and invalidated the entire Bartow County zoning ordinance. See, also, C & H Development, LLC, v. Franklin County, 294 Ga.App. 792 (2008).  In this very recent case the Court of Appeals held that notice of public hearing on a property owner’s request for a conditional use permit, published 46 days before the scheduled date of the hearing, was insufficient to satisfy provision of Zoning Procedures Law requiring such notice to be published “[a]t least 15 but not more than 45 days prior to the date of the hearing.”  The county’s approval of the permit following the hearing was held invalid, even though the 45th day after publication of the notice was a Sunday.  Because the hearing was not actually noticed or scheduled for the Sunday, the 45 day period was to be measured backward from the date of the hearing.

As a practical matter, the zoning applicant has no control over compliance with advertising and notice provisions. However, if the applicant has any reason to believe that the local government has messed up in following the mandates of the ZPL, it would behoove the applicant to raise this issue with the staff of the local government and have the matter deferred if need be to allow for the compliance with ZPL procedures rather than run the risk of a later challenge which may lead to the voiding of the zoning action.

F.                     Follow the Open Meetings Act.

On occasion, a rezoning or administrative zoning decision will be taken in violation of the Open Meetings Act, O.C.G.A. § 51-14-1 et seq.Beck v. Crisp County Zoning Bd. of Appeals, 221 Ga.App. 801, 472 S.E.2d 558 (1996). “(T)he test for the applicability [of the Open Meetings Act] is two-pronged: first, is the meeting one of a “governing body of an agency” or any committee thereof?; and second, is the meeting one “at which official business or policy of the agency is to be discussed or at which official action is to be taken”, Red & Black Pub. Co. v. Board of Regents, 262 Ga. 848, 854, 427 S.E.2d 257 (1993); Jersawitz v. Fortson, 213 Ga.App. 796, 798, 446 S.E.2d 206 (1994). As such, the vote to grant a rezoning in an executive session would be improper, even under threat of lawsuit.  However, the discussion of a court decision setting aside a rezoning in executive session is not a meeting when no official action is taken.  Gumz v. Irvin, 300 Ga.App. 426 (2009).  The attorney-client exception to the open meetings act should only be used to discuss potential litigation, rather than to vote on the merits of the rezoning decision.  The applicant should ensure that the vote taken is proper, as in the event of a challenge to the grant of the application, it may be struck down.

G.        Comply with the local charter, enabling act, and local ordinances

All municipalities are created by a charter adopted by the General Assembly and available and indexed in volume 42 of the official code of Georgia.  Likewise, the Board of Commissioners of counties were all created by enabling or organizational acts. The Acts are not codified in the Georgia Code but are listed in the General Laws.  These documents will often contain the procedures governing the adoption of resolutions and ordinances, and may be applicable to rezoning procedures.  For example in Head v. DeKalb Co., 246 Ga.App. 756, 542 S.E.2d 176 (2000), the DeKalb County organizational act provided that a zoning could not be approved without the affirmative vote of either the district commissioner or the commissioner at large for the district wherein the property lies.  Because of a change in the form of the county government (the designation of “Super District Commissioners”), it was unclear as to whether the organizational act had indeed been complied with when the rezoning action was supported by the “Super District Commissioner” but not the District Commissioner. Ultimately, the court decided that “Super District Commissioner” was not the same as “at-large commissioner” and therefore the rezoning had not been approved under the terms of the organizational act.

In the case of Little v. City of Lawrenceville, 272 Ga. 340, 528 S.E.2d 515 (2000), the neighbor challenging a rezoning contended the city did not follow the procedure required in its charter for adopting a rezoning.  The court held that the Zoning Procedures Law preempts any local procedure applying to rezoning.  Hence, if the provision can be seen as a procedural provision, it may be preempted by the ZPL. However, if the ZPL does not address a particular procedure, i.e. occupy the same field as a local ordinance provision; the local ordinance provision must be complied with.  For example, in  Harden v. Banks County, 294 Ga. App. 327 (2008), a rezoning application was approved by the Board of Commissioners but later the zoning decision was declared void by the Court of Appeals for the failure of the local jurisdiction to

comply with own ordinance. The local ordinance required the filing of a site plan in support of the application for rezoning; none had been provided by the applicant. In spite of the Board’s approval, the Court of Appeals voided the zoning action for failure to comply with its own substantive application requirements.

However, be aware that failure to comply with mere “parliamentary rules or local procedural requirements in the processing of a zoning application may be upheld under the  authority of South Georgia Power Co. v. Baumann, 169 Ga. 649 (1925).

III.      PROCEEDINGS IN SUPERIOR COURT

A.        File in the local superior court, and get the parties right.

1)         Straight Zoning Cases:

Zoning suits are suits in equity, and are heard in superior courts.  Village Centers, Inc. v. DeKalb County, 248 Ga. 177, 178, 281 S.E.2d 522 (1981).  A zoning “appeal” of a “straight zoning case” is not really an appeal in form or substance. It is a de novo proceeding wherein the court determines whether the zoning decision was constitutional based upon the evidence submitted to the trial court—not the evidence before the Board of Commissioners or the City Council. Unlike with administrative zoning appeals, the proceeding is not limited to a review of the record and a determination as to whether the local body committed legal error. Id. The typical challenge is a challenge to the constitutionality of a zoning ordinance, and thus cannot be tried in State Court.  The challenge in a “straight zoning case” is always to the constitutionality of the existing zoning, not whether the proposed zoning is constitutional or provides a higher and better use.  If there is a substantial gap between the existing zoning and the proposed zoning, the aggrieved property owner may wish to allege that the intervening zoning classifications are also not constitutional, in order to avoid having the existing zoning struck down, only to have the local government rezone the property to an intervening classification that still does not allow the desired use.

The straight zoning case will ultimately be decided by the judge, as the constitutionality of a zoning decision is not a jury question.  Dover v. City of Jackson, 246 Ga.App. 524, 541 S.E.2d 92 (2000).  Further, the appropriate decision, if the court finds the current zoning unconstitutional, is not to rezone the property, but only to order the property rezoned in a constitutional fashion.  Town of Tyrone v. Tyrone LLC, 275 Ga. 383, 384, 565 S.E.2d 806 (2002).  This last point is one the local government attorney should keep in mind when defending the case, because, in the event that the local government loses, the judge may order the property rezoned in a specific manner, particularly if the parties submit proposed orders.  The court should be advised that should the existing zoning classification be found to be unlawful, the proper remedy would be to direct that the property be rezoned by the local authority – not the court!

“Straight zoning cases” are brought against the city or county making the zoning decision.  Suits against counties should be brought against the county.  Ga. Const., Art. 9, Sec. 1, Para. I.; see also Guhl v. Tuggle, 242 Ga. 412, 249 S.E.2d 219 (1978).  Entities such as planning commissions or boards of zoning appeals are not proper parties as they do not have the power to zone.  Riverhill Community Ass’n v. Cobb County Bd. of Com’rs, 236 Ga. 856, 226 S.E.2d 54 (1976).  If the challenge is to a successful rezoning of other person’s property, the successful applicant (and property owner if not the applicant) should be named as a party.  Riverhill Community Ass’n v. Cobb County Bd. of Com’rs, 236 Ga. 856, 226 S.E.2d 54 (1976).  They would have the right to intervene were they not named, and the decision needs to be binding on them as well.  If the challenge is to a successful rezoning of other person’s property, the successful applicant (and property owner if not the applicant) should be named as a party.  Riverhill Community Ass’n v. Cobb County Bd. Of Comm’rs, 236 Ga. 856, 226 S.E.2d 54 (1976).  They would have the right to intervene were they not named, and the decision needs to be binding on them as well.

Individual city council members or county commissioners are not necessary or proper defendants in their individual capacity.  They can be named in their official capacity, but that may be superfluous in a challenge to a rezoning denial.  When mandamus is sought, however, a public officer must be named, and the local government itself is not a proper party.  See City of Homerville v. Touchton, 282 Ga. 237, 647 S.E.2d 50 (2007) (here, failing to name a public official resulted in the dismissal of the suit).  If a claim of personal wrongdoing exists, claims can of course be brought against individual government officials.  Otherwise, officials have legislative immunity in their individual capacity against challenges in zoning suits.  Whipple v. City of Cordele, 231 Ga.App. 274, 499 S.E.2d 113 (1998).

The proper jurisdiction is the county where the local government sits, which of course is also where the land lies.

2)         Administrative Zoning Appeals

A zoning board sitting in consideration of variances, special exceptions or appeals of administrative decisions sits in a quasi-judicial capacity (applying facts before it to the law as set forth in the ordinance). As such, the Georgia Supreme Court has held that a local jurisdiction may specify the method for judicial review. Beugnot v. Coweta County, 231 Ga.App. 715, 500 S.E.2d 28 (1998); Jackson v. Spalding County, 265 Ga. 792 (1995).   If a specific method of judicial review is not specified, i.e. certiorari or appeal, then mandamus is the vehicle for appealing an administrative zoning decision. City of Atlanta v. Wansley Moving Company, 245 Ga. 794 (1980). Mandamus, under O.C.G.A. § 9-6-20 et seq., has some of its own rules, including a very short timeframe for the hearing.  As such, a well-prepared applicant can get its case ready, file mandamus and seek a quick hearing, leaving the local government little time to prepare.

Where certiorari is the vehicle required by the local ordinance, the practitioner is faced with numerous procedural perils.  The practitioner must be extremely careful no matter how inane the requirements may appear to be to follow the statutory certiorari requirements to the letter.  Although it may appear nonsensical to secure a “certiorari bond” and a “certificate of payment of costs” as required by the certiorari statute, O.C.G.A. Section 5-4-1 et seq., do so! Be sure to secure the sanction from the judge before filing and get the clerk to issue the writ when you file. Persist with local authorities who may be as unfamiliar with the rather bizarre requirements to secure the necessary documents precedent to the filing. If you do not, the consequences are flat out dismissal of your appeal.  Certiorari appeals can be dismissed for failure to secure the bond (Duty Free Air and Ship Supply, Inc. v. Atlanta Duty Free, LLC., 275 Ga. App. 381 (2006)), even though there is no money in dispute or no potential for entitlement to monetary damages; for failure to file a motion to compel the filing of the record below before the expiration of the 30 days within which the statute provides for the filing of the record (City of Atlanta v. Schaffer, 245 Ga. 164, 264 S.E.2d 6 (1980)) and for many more technical reasons.  Tread carefully—dot your I’s and cross your T’s (twice!).

Regardless of the procedural vehicle used to get your appeal of the administrative zoning decision to the Superior Court, the court is confined to a review of the record made below and questions of legal error.  As such, it can not be over emphasized that it is extremely important to create a solid record before the local zoning board.  You do not get a second bite at the apple as you do with the de novo “straight zoning case”.

B.        Prepare to prove standing.

Property owners have standing to file suits regarding their own property.  Similarly, persons who have an interest in property, such as a contingent contract, have been held to have standing to bring a rezoning challenge.  Gifford Hill & Co. v. Harrison, 229 Ga. 260, 191 S.E.2d 85 (1972).  Recently, a devisee under a will was found to have standing even though the administrator had not assented to the devise at the time of zoning.  Hollberg v. Spalding County, 281 Ga.App. 768 (2006).  The sticking point is neighbors.  Neighbors do not have an automatic right to challenge a rezoning.  The courts have held that a neighbor must show that he has a special interest different from the area in general that has been specifically damaged. DeKalb County v. Wapensky, 253 Ga. 47, 315 S.E.2d 873 (1984); Dunaway v. City of Marietta, 251 Ga. 727 (1983); Brock v. Hall County, 239 Ga. 160 (1977).  “[T]here [are] two steps to standing: First, that a person claiming to be aggrieved must have a substantial interest in the zoning decision, and second, that this interest be in danger of suffering special damages or injury not common to all property owners similarly situated. Macon-Bibb County Planning and Zoning Commission v. Vineville Neighborhood Association, 218 Ga. App. 668 (1995). Generally the first prong of the standing test is met if the neighbor(s) bringing the zoning challenge are adjacent to the property in question or directly across the street.  Brand v. Wilson, 252 Ga. 416 (1984). As a general proposition, neighborhood associations must own adjacent property or be joined by individual members who do in order to meet the first prong of the standing test.  DeKalb County Bd. of Com’rs v. Druid Hills Civic Ass’n, 269 Ga. 619, 502 S.E.2d 719 (1998). As to the second prong of the test, inconvenience and concern about reduction in property values will not be enough.  Specific, quantifiable damages of a nature distinct from those of further flung citizens will need to be established to withstand a standing challenge.

C.         Making the right claims.

There are a number of different claims for the practitioner to consider raising in the zoning appeal pleading.

1.         TAKINGS

In a zoning case, the most common challenge is to the constitutionality of the existing zoning classification under a takings analysis.  DeKalb County v. Dobson, 267 Ga. 624, 482 S.E.2d 239 (1997).  This is not an easy challenge, because the zoning ordinance is presumptively valid.  Id., 267 Ga. at 626; Gradous v. Bd. of Commr’s of Richmond County, 256 Ga. 469, 471, 349 S.e.2d 707 (1986).  “The presumption that a governmental zoning decision is valid can be overcome only by a plaintiff landowner’s showing by clear and convincing evidence that the zoning classification is a significant detriment to him, and is insubstantially related to the public health, safety, morality and welfare.  Only after both of these showings are made is a governing authority required to come forward with evidence to justify a zoning ordinance as reasonably related to the public interest.  If a plaintiff landowner fails to make a showing by clear and convincing evidence of a significant detriment and an insubstantial relationship to the public welfare, the landowner’s challenge to the zoning ordinance fails.”  Id.

The significant detriment can be difficult to show.  See Gwinnett Co. v. Davis, 271 Ga. 158, 517 S.E.2d 324 (1999) (evidence that landowner would suffer economic loss without rezoning was insufficient to show substantial detriment).  There are a number of cases which defense attorneys can rely upon to show that a property has not suffered a significant detriment.  “[A] significant detriment to the landowner is not shown by the fact that the property would be more valuable if rezoned, or by the fact that it would be more difficult to develop the property as zoned than if rezoned.”  DeKalb v. Dobson, 267 Ga. at 626.  Delta Cascade Partners, II v. Fulton Co., 260 Ga. 99, 100, 390 S.E.2d 45 (1990).  “[E]vidence only that it would be difficult to develop the property under its existing zoning or that the owner will suffer an economic loss unless the property is rezoned is not sufficient to support the legal conclusion that the owner suffers a significant detriment.”  Gwinnett Co. v. Davis, 268 Ga. 653, 654, 492 S.E.2d 523 (1997); also, see, Holy Cross Lutheran Church, Inc. v. Clayton Co., 257 Ga. 21, 23, 354 S.E.2d 151 (1987).

The courts recognize that increasing density or intensity almost always increases value, but that does not prove that the current zoning is unconstitutional.  “[I]n zoning challenges, the pertinent question is not whether rezoning would increase the value of property, but rather whether the existing zoning classification serves to deprive a landowner of property rights without due process of law.  Hence, the evidence that the subject property would be more valuable if rezoned border on being irrelevant.”  DeKalb Co. v. Dobson, 267 Ga. at 626; see, DeKalb Co. v. Chamblee Dunwoody Hotel Partnership, 248 Ga. 186, 190, 281 S.E.2d 525 (1981).  The notion that a property is not zoned for its “highest and best use,” a concept appraisers like to use, does not show that the existing zoning imposes a significant detriment.  Gwinnett Co. v. Davis, 268 Ga. at 654.  Furthermore, “the fact that the property currently has no economic return to the owners is immaterial; by definition, undeveloped property never offers owners any economic return.”  DeKalb Co. v. Chamblee Dunwoody Hotel Partnership, 248 Ga. at 190.  All this is not to say that the significant determinant requirement is an insurmountable burden; courts can and have found a significant detriment on numerous occasions, but the property owner will need to be prepared to put forth a detailed and compelling case on this point.

The most recent case to discuss the concept of significant detriment is Legacy Inv. Group, LLC v Kenn, 279 Ga. 778, 621 S.E.2d 453 (2005), which was on appeal from the grant of the local government’s motion for summary judgment.  There, the property owner had paid about $12,000 per acre for land zoned for agricultural land, with the presumption that it would be rezoned for residential uses.  When the rezoning was denied, property owner appealed, arguing that it could not be developed in an economically feasible fashion based upon the purchase price.  The superior court found that the fact that the property owner overpaid for the property did not mean that the zoning ordinance was a significant detriment to the property.  On appeal, the Supreme Court reversed because the evidence was that the property would have to be purchased for no more than just over $5,000 per acre in order to be developed in an economically viable manner, and the county’s appraiser said the property was worth between $5,000 and $9,000 per acre.  Thus, giving the non-movant the benefit of all the inferences from the evidence, the property would have to be purchased for several thousand dollars less per acre than it was worth in order to be developed in an economically feasible manner.  The court also mentioned that the evidence was also that the property was not suited for agricultural uses; while not discussed much by the court, this would seem to be an important piece of evidence.

In City of Tyrone v. Tyrone, LLC, 275 Ga. 383, 565 S.E.2d 806 (2002), the Supreme Court found that part of a property subject to the appeal of a rezoning denial suffered a significant detriment, but part did not.  The property in question was partially zoned for agricultural-residential uses, and partly zoned for office-institutional uses.  The property owner wanted it all zoned for commercial uses.  The court held that there was evidence that the portion zoned for agricultural-residential could not be developed as zoned, but there was no such evidence as to the office-institutional portion, and so the trial court erred in finding a significant detriment to that portion of that property.  In reaching this conclusion, the Supreme Court discussed the fact that the owner had not tried to develop the property for office-institutional uses, and the fact that there was evidence of a need for such property in the community and region.  The evidence needed to prove significant detriment is not that the property can make more money with the rezoning, but that the property is not suited for development under the existing zoning classification, such that it cannot be used in an economically feasible manner under the existing zoning classification.

After a plaintiff shows significant detriment, he still needs to prove that the current zoning is insubstantially related to the public health, safety, morality and welfare.  DeKalb Co. v Dobson, 267 Ga. at 626; Browning v. Cobb County, 259 Ga. 430, 383 S.E.2d 126 (1989) (showing of detriment outweighed by public benefit of present zoning classification).  This requires proof that there is no logic to the existing zoning classification.  It can be shown by pointing to the incompatibility of the subject zoning with the neighborhood or the changing character of the neighborhood.  However, it can be difficult to prove if the property is simply on the boundary of the zoning district, which is commonly referred to as a “fringe area.”  See Holy Cross Lutheran Church v. Clayton County, 257 Ga. 21, 354 S.E.2d 151 (1987).

The degree of consistency between the existing and proposed zoning and the comprehensive or future land plan is a common element in this analysis.  In City of Atlanta v. TAP Associates, 273 Ga. 681, 683, 544 S.E.2d 433 (2001), the court placed great emphasis on the fact that the existing zoning was consistent with the land use plan of Atlanta:  “[T]he city’s zoning decision is consistent with the policies and long-range planning goals for the area as adopted in the comprehensive development plans and the Buckhead transit station report….The fact that TAP presented evidence that its proposed mixed-use development would also protect the single-family neighborhood is irrelevant.  The issue is not whether the city could have made a different decision or better designation in zoning TAP’s property, but whether the choice that it did make benefits the public in a substantial way.”  273 Ga. at 685.  Thus, if an existing zoning classification is consistent with the comprehensive plan, it is more likely to be upheld.

Takings claims are challenging to prove under Georgia law, but under federal law they are even more so.  Federal courts have held that the property owner must show that the property has been deprived of all economically viable use.  Corn v. City of Lauderdale Lakes, 95 F.3d 1066, 1072 (11th Cir. 1996).  Cobb County v. McColister, 261 Ga. 876, 413 S.E.2d 441 (1992).  Federal takings claims are generally not ripe unless the state has failed to provide a remedy.  A federal claim cannot ripen if the state provides method of redress for a taking without just compensation, and the federal courts have held that Georgia provides such a remedy.  See Bickerstaff Clay Products Co., Inc. v. Harris County, Ga., 89 F.3d 1481, 1491 (11th Cir. 1996).  Because of these holdings, the aggrieved property owner will normally want to bring the takings claim in state court.

2.         DUE PROCESS

Due process encompasses a more limited challenge, mainly in the context of procedural due process.  Substantive due process has been held to be subsumed into takings, and so does not typically constitute a separate challenge to a rezoning decision, but procedural due process may be a fertile avenue to challenge a rezoning decision.  The unsuccessful applicant can claim that there was some defect in the zoning procedure, and perhaps obtain another rezoning hearing.  The applicant may also be able to challenge the adoption of the underlying zoning ordinance.  The practitioner should consider what benefit the client will achieve from such a challenge, as the local government can normally go back and do the same thing in a procedurally correct manner.

Basic procedural due process requires notice and a hearing.  The procedures required in conducting a rezoning hearing have been codified in the Zoning Procedures Law, O.C.G.A. § 36-66-1 et seq. The basis requirements are published and posted notice and sufficient equal time at the hearing for all parties to speak (at least ten minutes per side).  Failure to comply with the Zoning Procedures Law may void the zoning ordinance.  McClure v. Davidson, 258 Ga. 706, 373 S.E.2d 617 (1988); Tilley Properties, Inc. v. Bartow County, 261 Ga. 153, 401 S.E.2d 527 (1991).  In McClure, the defendant county did not give proper notice under O.C.G.A. § 36-66-4(a) of a rezoning hearing, and the court ruled that the rezoning was therefore void for failure to comply with the ZPL.  The court held, “the General Assembly intended noncompliance with the procedures to invalidate any zoning decision…we therefore conclude that the trial court properly ruled that the county’s failure to comply with O.C.G.A. § 36-66-4(a) invalidates the subject zoning action.”  258 Ga. at 710.

Tilley Properties involved the notice and hearing requirements of O.C.G.A. § 36-66-5(c).  O.C.G.A. § 36-66-5(c) requires notice and a hearing both for the adoption of standards and for the adoption of policies and procedures governing the conduct of zoning hearings – the two are handled identically by the ZPL.  Tilley Properties dealt with Bartow County’s failure to provide notice or a separate hearing when it adopted its policies and procedures.  This failure invalidated the entire zoning ordinance of the county.  The court held, “‘Prior to the adoption of the policies and procedures, O.C.G.A. § 36-66-5(c), a local government must publish within a newspaper of general circulation a notice of the public hearing, O.C.G.A. § 36-66-4, and a public hearing must be held on the proposed action…. The trial court erred in failing to hold that the County did not comply with the statute and that the ordinance is void.”  261 Ga. at 154.

Thus, the unsuccessful applicant should look at the validity of the zoning ordinance and map.  If the zoning ordinance and/or map were not adopted in compliance with the Zoning Procedures Law, there would potentially be no zoning restriction on the property at all.  The official zoning map should either be spread upon the minutes, or referred to by reference in a readily identifiable manner.  Discovering a defect from years before can be sufficient to knock down the entire ordinance, and relieve the applicant, and potentially the entire jurisdiction, of zoning restrictions.  See Tilley Properties, Inc. v. Bartow County, 261 Ga. 153, 401 S.E.2d 527 (1991).

Such a result is not likely with non-zoning land use regulations such as historic preservation ordinances or other local ordinances regulating land use.  After Buckler, DeKalb County Bd. Of Commissioners, 299 Ga.App. 465 (2009), substantial compliance is likely enough.

D.      Getting Damages and Fees.

There has been little success on the part of plaintiffs in seeking damages for unconstitutional rezonings.  Generally, the remedy for an unconstitutional zoning is getting the property rezoned in a constitutional manner.  One avenue that has been tried is to assert a temporary taking.  That is, for the period that a property was subjected to an unconstitutional zoning, what are the damages?  Some cases in federal court have awarded temporary takings, but Georgia courts have rejected them, unless the owner can show a complete deprivation of all economic use.  Powell v. City of Snellville, 275 Ga. 207, 563 S.E.2d 860 (2002).

42 U.S.C. § 1983 claims have not been very successful in state court either, in that the state courts do not view there having been a violation of the federal law of zoning unless the taking is complete, and there has been a deprivation all economic use of the property.  Dover v. City of Jackson, 246 Ga.App. 524, 541 S.E.2d 92 (2000).  Moreover, raising federal claims under § 1983 may result in the case being removed to federal court.

Obtaining any damages from a local government requires compliance with the ante litem notice provisions of O.C.G.A. § 36-11-1 (counties) or § 36-33-5 (cities).  These provisions require giving a 30 day notice before filing suit. Due to the 30-day time bar in straight zoning matters it is best to file your zoning challenge within the jurisdictional 30 day limit and amend to add your damage claim later.

On occasion an award has been made for attorney fees in zoning suits under O.C.G.A. § 9-15-14 and under the Anti-SLAPP statute.  See Hagemann v. Berkman Wynhaven Assoc.
290 Ga.App. 677, 660 S.E.2d 449 (2008); Rabun County v. Mountain Creek Estates, LLC, 280 Ga. 855, 632 S.E.2d 140 (2006); EarthResources, LLC v. Morgan County, 281 Ga. 396, 638 S.E.2d 325 (2006). These occasions are extremely rare, and under the most of egregious circumstances, so never take a straight zoning case (or for that matter an administrative zoning case) without clearly advising your client that they are not likely to get fees back!

IV.       PROCEEDINGS IN APPELLATE COURT

A.        When in doubt, file a discretionary appeal application.

Once a judgment has been obtained in superior court, the traditional 30-day appeal clock applies, and the first question is whether the appeal should be by application or direct.  O.C.G.A. § 5-6-35(a) (1) provides that appeals from superior courts reviewing decisions of local administrative agencies require an application for appeal.   In Trend Development Corporation v. Douglas County, 259 Ga. 425, 383 S.E.2d 123 (1989), the Supreme Court held that all appeals in zoning cases required an application because they were appeals from court decisions “reviewing a decision of an administrative agency within the meaning of O.C.G.A. § 5-6-35(a) (1).”   The holding in Trend established what the court termed a bright-line rule for both litigants and the appellate courts:  if the underlying subject matter is zoning, an application for discretionary appeal must be filed.  However, the courts have issued a number of somewhat confusing opinions on this issue over the years.

In Harrell v. Little Pup Development, 269 Ga. 143, 498 S.E.2d 251 (1998), neighboring landowners sought injunctive relief to enforce a zoning condition on another property.  The court approved a direct appeal because the neighbors “did not join their action for injunctive relief with any appeal from an adverse administrative decision….  Therefore, this appeal in no way involves superior court review of an administrative decision.”  269 Ga. at 144.  In King v. City of Bainbridge, 272 Ga. 427, 531 S.E.2d 350 (2000), a property owner ignored a zoning ordinance and placed a mobile home in violation of the ordinance’s restrictions.  The city wrote a letter which was ignored, and subsequently the city brought an injunctive enforcement action to enforce its ordinance and have the home removed.  In defense, King asserted that the zoning ordinance was facially unconstitutional.  The court authorized a direct appeal, noting that King failed to seek a decision from the local zoning board, and instead the city filed for injunctive relief.  Because the order did not involve the review of a decision of a local administrative agency, the court found the order directly appealable.  In the case of Sprayberry v. Dougherty County, 273 Ga. 503, 543 S.E.2d 29 (2001), neighboring property owners filed a mandamus action to attack the validity of a rezoning decision on adjoining property (seeking to force the Board to rescind the rezoning).  The court approved a direct appeal, noting that the order was not an appeal to review an administrative decision, and was therefore subject to direct appeal.

However, in Powell v. City of Snellville, 275 Ga. 207, 563 S.E.2d 860 (2002), the court concluded that the inclusion of other claims and prayers for relief in a decision appealing a zoning decision does not transform the case into a direct appeal.  In such a case, an application would still be required.  The court reversed its ruling granting a direct appeal, held that a discretionary appeal was required, and rejected the application for appeal. The recent case, of Worley v. Peachtree City, (2010 Ga.App. Lexis 683) seems to completely undermine this reasoning however.  Decided July 9, 2010, the Court of Appeals, faced with a citizen appeal of an annexation and rezoning action, found that because annexation is directly appealable regardless of the inclusion of a zoning claim which is normally discretionary.  If there is a directly appealable claim separate from the zoning claim, then under the authority of Worley the whole appeal is direct.  Ferguson v. Composite State Bd. of Medical Examiners, 275 Ga. 255, 564 S.E.2d 715 (2002), was not a zoning case; it involved a doctors’ appeal of a medical license revocation.  The losing ex-doctor filed both a direct appeal and a discretionary application.  As the appeal of the decision of an administrative body, the case fell into the ambit of O.C.G.A. § 5-6-35, but as mandamus, it fell under O.C.G.A. § 5-6-34.  Reaffirming the rule of Rebich v. Miles, 264 Ga. 467, 448 S.E.2d 192 (1994), the court held that the underlying substance controls, and that an application was required.

The court examined Sprayberry at length, and clarified its logic, noting that if the request for mandamus relief “attacks or defends the validity” of an administrative decision, then the trial court must necessarily “review” the administrative decision before ruling on the request for mandamus relief, and hence a discretionary appeal is appropriate.  The court overruled Sprayberry to the extent it held that filing a mandamus decision to “review” an administrative decision is not an attack or defense of  such decision, and it overruled any holding that mandamus actions do not require applications.  See, also in this regard Ladzinske v. Allen, 280 Ga. 264 (2006).

So what type of appeal do you file?  In spite of Worley, the safest answer in any case that touches on zoning in any fashion has been to file both a direct appeal and a discretionary application.  However, O.C.G.A. § 5-6-35(j) has been revised to state that an application will count as a notice of appeal if a direct appeal is authorized.  In most any case related to zoning, filing an application would be prudent.  Certainly in any case where the client has actually been in front of a board or agency prior to going to superior court, the “two tribunal” rule would likely apply, and thus an application would be the best bet.

B.        Determine the proper appellate court.

A less critical issue would be the proper court for an appeal.  The Supreme Court and Court of Appeal’s respective jurisdiction is defined by the Georgia Constitution of 1983, in Article 6, Sections 5 and 6.  The Court of Appeals has jurisdiction over all cases not reserved to the Supreme Court.  Ga. Const., Art. 6, Sec. 5, Para. III.  The Supreme Court has exclusive appellate jurisdiction over all cases involving the constitutionality of a law or ordinance.  Ga. Const., Art. 6, Sec. 6, Para. II.  For a zoning case, the question is generally the constitutionality of the zoning ordinance.  As a constitutional decision, the Supreme Court gets the case.  As Justice Smith put it in Trend, supra, “Where an appeal from a decision of a court reviewing a zoning decision involves a constitutional question, this Court has jurisdiction; where it does not involve a constitutional question, the Court of Appeals has jurisdiction.”  259 Ga. at 425.  Of course, Art. 6, Sec. 6, Para. III gives the Supreme Court jurisdiction over “all cases involving extraordinary remedies,” and mandamus is an “extraordinary remedy,” thus suggesting the Supreme Court should take jurisdiction over all mandamus cases, whether or not they involve a constitutional question.  In practice, that does not always happen.  On occasion, the Supreme Court has sent a constitutional case down to the Court of Appeals on the premise that the

Constitutional question is well settled, and simply requires application of the law to the facts.

Either court will transfer to the proper court, so there is no penalty for getting things wrong, other than delay.  If the Court of Appeals transfers a case to the Supreme Court, asserting that court has jurisdiction, the Supreme Court has jurisdiction to send it back if it disagrees.  Some say that, when in doubt, file in the Supreme Court, so that if you get transferred, at least it will only happen once.  However, due to internal court rules about how applications for discretionary review are granted, the odds of getting a discretionary appeal granted may be better in the Court of Appeals.

C.        When filing an application, be persuasive and follow the

Court’s rules.

When an application is required, the application itself will be the most important brief filed in the appeal.  Practically speaking, it must convince the reader that there is error, and it is a significant enough case to justify review.  Neither appellate court takes many zoning appeals, so the task of the practitioner is to show that this case is one of those that deserve appellate review.  In no way should the application be considered a form or formality; it must be a compelling and detailed explanation of the merits and importance of the case.  Both appellate courts have particular rules for the procedure and standard for granting a discretionary appeal, and those rules should be followed strictly. (Rules 33 & 34 for the Supreme Court; Rule 31 for the Court of Appeals)

[2] Presenting and trying special land use permits will not be included in this paper as it is the author’s understanding that this topic will be addressed by Kyle Williams in his paper.

MONEY AND SMART GROWTH:

Tax Allocation Districts

Community Improvement Districts

And

Transfer of Development Rights

Linda I. Dunlavy

Dunlavy Law Group

1026B Atlanta Avenue

Decatur, GA 30030

404.371.4101 Telephone

(404) 371-8901 Facsimile

ldunlavy@dunlavylawgroup.com(e-mail)

I.          TAX ALLOCATION DISTRICTS (TADs) AND TAX INCREMENT FINANCING (TIFs)

A.        Statutory Mechanism

In 1985, pursuant to a state Constitutional Amendment (Article IX, Sec. II, ¶ VII), Georgia adopted the Redevelopment Powers Law, O.C.G.A. § 36-44-1 et seq. Copies of the Constitutional Amendment and the statute are attached to this article.

The Redevelopment Powers Law was amended in 2001, and again in 2004, to make its application more comprehensive.  In general, the Georgia Redevelopment Powers Law gives local government the authority to create what are known as “Tax Allocation Districts”.  These Districts are required to be within “redevelopment areas” as defined in O.C.G.A. § 36-44-3(7).  Redevelopment areas are those areas which are considered to be economically or socially depressed or substandard.  The clear initial objective of the legislation is to assist local governments in stimulating economic development in blighted areas.  By enticing development into urban areas, where costs of development are normally higher than in areas with little or no existing development, local governments hope to improve conditions within the District. Pursuant to the Redevelopment Powers Law, Georgia counties and municipalities may issue bonds to finance infrastructure and other redevelopment costs within Tax Allocation Districts.[1] Typical uses of TAD financing include, but are not limited to, construction or improvement of roads, sewers, sidewalks, streetscapes, landscaping, design and engineering, renovation of buildings and land acquisition.

TAD bonds are secured by what is known as a “Tax Allocation Increment” (O.C.G.A. § 36-44-3(14)).  The Tax Allocation Increment represents the difference between the value of all taxable property within a Tax Allocation District on the effective date such district is created and the actual ad valorem tax revenues resulting from redevelopment activities. The tax allocation increment is determined by multiplying the total ad valorem property taxes levied on all taxable property within a tax allocation district in any year by a fraction having a numerator equal to that year’s taxable value of all taxable property within the tax allocation district minus the tax allocation increment base and a denominator equal to that year’s taxable value of all taxable property within the tax allocation district. O.C.G.A. Section 36-44-3(14). In other words, upon the creation of a TAD the ad valorem tax base is “frozen”.  Improvements within the TAD will hopefully attract new businesses and thereby increase taxable value within the District.  The increase in tax revenues is used to pay off the bonds.

In lieu of issuing bonds, improvements may be financed on a pay as you go basis.  The investment in development cost for a particular Tax Allocation District may then be recaptured on tax revenues attributable to increases in property values within the Tax Allocation District.  Increasingly, local governments in Georgia have chosen to designate Tax Allocation Districts in an effort to aid in the economic redevelopment of targeted trouble areas within their boundaries.

The Redevelopment Powers Law is not self-executing, however.  A local government to become authorized to exercise the powers under the law must be enabled to do so through the adoption of a local law by the General Assembly or through local referendum wherein a majority of qualified voters approve such powers.  O.C.G.A. § 36-44-22.  Once the authority to exercise redevelopment powers is given, counties and municipalities need only approve a redevelopment area and adopt a redevelopment plan as set forth in the procedures of O.C.G.A. § 36-44-7.

Tax Allocation Districts are created within a redevelopment area upon submission of a redevelopment plan to the local legislative body. O.C.G.A. Section 36-44-7. In general, the redevelopment plan must identify the boundaries of the proposed redevelopment area, the basis for a finding that the area qualifies as a “redevelopment area” under the statute, the proposed redevelopment projects, the proposed tax allocation increment base, projected tax revenues, and the amount of the proposed tax allocation bonds. [2] The local legislative body must pass a resolution approving the Tax Allocation District after advertising and at least one public hearing.   O.C.G.A. Section 36-44-7(b) and (c).  If the redevelopment plan provides for taxes from other political subdivisions or a board of education as part of the tax allocation increment, consents from the effected entities must be secured prior to submission of the plan to the legislative body of the city or county. O.C.G.A. Section 36-44-8(1).

The redevelopment agency must apply in writing to the state revenue commissioner for a determination of a base taxable value for all properties within the tax allocation district no later than the effective date of creation of a tax allocation district.  O.C.G.A. Section 36-44-10(a). After receipt of the application and within 60 days after the creation of the tax allocation district, the state revenue commissioner must certify a base taxable value for all properties in the tax allocation district. That certified base value remains fixed (“frozen”) for the life of the tax allocation district regardless of any growth in the actual value of properties within the tax allocation district.  O.C.G.A. Section 36-44-15(a).

Creation of a tax allocation district does not mean that local governments or consenting political subdivisions thereof can not increase or decrease their ad valorem tax millage rates.  However, until a TAD is terminated, the millage rate on taxable property within the tax allocation district may not be decreased below the millage rate levied on the last date tax allocation bonds were issued. O.C.G.A. Section 36-44-15(b).

Once a TAD is created, the tax assessor notifies the county or municipality on an annual basis of the current taxable value of the property within the tax allocation district and the tax allocation base value.  O.C.G.A. 36-44-10(e).  If there are any taxes collected as a result of an increase in property values over the base value this increase will be paid to the local government for deposit into a “special fund” created to pay redevelopment costs within the tax allocation district, including debt service on any tax allocation bonds issued. O.C.G.A. Section 36-44-11.

The Redevelopment Powers Law provides that a tax allocation district exists until it is specifically dissolved by resolution of the local legislative body of the county or municipality. A tax allocation district may not be dissolved until all redevelopment costs, including debt service or outstanding bonds, have been paid.  O.C.G.A. 36-44-12.

B. Reality

TIF financing is now authorized in most states and its use is widespread nationally.  In Georgia however TIF financing is a relatively recent phenomenon.  TIF and TADs as a smart growth tool have really only been used in Georgia within the last decade. Since the adoption of the Redevelopment Powers Law, according to the Association of County Commissioners of Georgia, local legislation has been adopted for eighteen cities and eight counties.  Fifteen cities and six counties have ratified these local acts via referenda and 13 TADs have been created in the exercise of these powers.  Communities establishing TADs include the City of Atlanta, the City of East Point, Sandy Springs, Macon, Ellenwood, Marietta, Acworth, and Smyrna.  Other municipalities and counties are considering establishment of TADs, such as DeKalb County, College Park, Fort Valley, Warner Robins, Hapeville and Athens-Clarke County.

TADs of note include the Atlantic Steel Brownfields site at the 17^th Street bridge in Mid-Town; the Camp Creek TAD in East Point, and the Techwood Park TAD.  TADs created have experienced varying success.  For example, the first TAD created by the City of Atlanta in 1992 failed.  This was the Techwood Park TAD established in hopes of spurring economic development within the area of the 1996 Olympic stadium.  This TAD was created in 1992 and failed to generate the anticipated incremental tax revenues.  New investment did not materialize as hoped.  The second TAD established by the City of Atlanta is the Atlantic Steel project.  The initial phase of this development saw the City issue in excess of $76 million in tax allocation bonds.  The success of this planned mixed use development remains to be seen.  In contrast the Camp Creek TAD appears to be an off and running success.  The area designated by the City of East Point in a largely undeveloped space has attracted a major business park and retail center.  The center at Camp Creek Parkway and I-285 is the first major retail development in the City for greater than 50 years and is proving to be a huge draw in South Fulton County.

Nationally, TIF and TADs seem to be receiving mixed reports.  Major TIF projects nationally include, the renovation of historic theaters in Chicago, the financing of a museum, hotel and entertainment center in D.C., and the construction of a rapid transit station in Fremont, California.  While these projects appear to be “success stories”, the national trend in weakening the requirements for TADs and TIF may cause local jurisdictions to stray from the original intentions of redevelopment laws and result in anything but smart growth.  Recently, several studies have emerged suggesting that TIF as an economic development tool has produced poor results.  For example, the Heartland Institute conducted a study of five TIF districts in the city of Chicago to determine the impact of TIF on jobs, increase in businesses, residential property sales and housing prices.  The Institute determined that TIF does not tend to produce a net increase in economic activity and only appears to have limited impact on economic development. The Institute further concluded that TIF districts do not increase the number of businesses, do not result in net increases in the number of jobs and tend to favor large national businesses to the detriment of small business owners, small land owners, and low income residents.[3]

Good Jobs First in August of 2003 produced a report with the results of its examination of legislative changes to, inter alia, tax increment financing.  It found that of the states adopting TIF laws, sixteen of those states, including Georgia, have weakened their TIF laws.  The weakening has occurred through the loosening of the definition of “redevelopment areas”, such that these areas no longer require blight or poverty as a precondition to the designation of an area as one in need of redevelopment.  For example, Good Jobs notes that in 2001 Georgia amended the Redevelopment Powers Law to extend the definition of “redevelopment area” to include any area previously developed for commercial, industrial, residential or similar uses “in which the current condition of the area is less than desirable for the redevelopment area”. The definition was further expanded to allow designation for those areas “adversely affected by airport or transportation related noise”.  O.C.G.A. Section 36-44-3(7)(F).  This means that the Redevelopment Powers Law can be used to develop mass transit facilities, telecommunication infrastructure or pedestrian access in any local jurisdiction, apparently regardless of “blight”.  At least, unlike most other states, Georgia Redevelopment Plans can not be approved without voter approval.[4]

Good Jobs also collected information concerning Wal-Mart as a recipient of economic development subsidies.[5] Good Jobs found Wal-Mart to be a frequent recipient of healthy TIF subsidies largely for infrastructure improvements. These subsidies were not always in low income areas suffering from demonstrable blight (i.e. one was in Wisconsin for improvements on land previously used as an apple orchard).  This appears to be contrary to the general “but for” precondition found in most TIF legislation—namely that “but for” public funding the project would be unlikely to be completed.  O.C.G.A. Section 36-44-3(9)(B).  One is compelled to ask would Wal-Mart build without TIF?  Does it make sense to use TIF as a tool to subsidize Wal-Mart and other big box retailers, the businesses which many in the planning community would suggest are the antithesis of smart growth?

The answers to the foregoing questions remain unanswered in Georgia.  The author is unaware to date of TIF money being used in Georgia to date for Wal-Mart specifically.  However, DeKalb County may be headed in that direction.  At the end of the year, the Board of Commissioners for DeKalb County passed a resolution designating an area including the old Avondale Mall site on Memorial Drive and Columbia as a TAD.  News reports indicate that one of the major reasons for this action was to entice Wal-Mart to be part of a mixed use development at this key corner.  If in fact Wal-Mart will spur economic redevelopment, create new jobs and increase the ad valorem taxes within the area, it would be in keeping with the intent of the Redevelopment Powers Law.  However, given the impacts of a Wal-Mart Supercenter one must wonder whether it will result in smart growth.  In adopting redevelopment plans pursuant to the Redevelopment Powers Law, local jurisdictions need to exercise their powers with eyes wide open.  Just because a local government utilizes the TIF/TAD tools available in that legislation does not mean that the end result will be “smart growth” or lasting economic improvement of blighted urban areas.

II.        COMMUNITY IMPROVEMENT DISTRICTS (CIDs)

A.        What is a CID?

A CID is a “Community Improvement District”.  Article IX, Section VII, Paragraph I,  of the Georgia Constitution provides for the creation of these self-taxing districts by local act of the General Assembly.  A CID may be created for seven specific purposes under Paragraph II, namely for: 1) street and road construction and maintenance; 2) parks and recreational areas and facilities; 3) storm water and sewage collection and disposal systems; 4) development, storage, treatment, purification and distribution of water; 5) public transportation; 6) terminal and dock facilities and parking facilities; and 7) “such other services and facilities as may be provided by general law”.  A CID is usually a private business organization not an arm of local government.[6] However, the law creating the CID must receive the consent by resolution of the county or municipality within which the proposed CID is located.  Additionally, written consent of a majority of the property owners within the proposed CID and the owners of at least 75% by value, as determined by the county ad valorem tax digest, of the property within the proposed CID.  Article IX, Section VII, Paragraph III(b)(2). The administrative body of a CID is authorized to levy taxes, fees, and assessments on non-residential property within the CID up to 2 ½ percent the assessed value of the real property. Article IX, Section VII, Paragraph III(c).

B.        How does a CID work?

Once a majority of the commercial property owners representing 75% of the assessed property value within the proposed CID agree to tax themselves for improvements permitted under the State Constitution, the local governing authority must recognize the CID via resolution and the property owners must elect a board to set the tax rate (the additional mils to be paid by CID property owners) and to identify the projects to be funded through the increased tax revenue for the District.  The increased tax revenues are collected by the governing authority’s tax

commissioner and disbursed to the CID board.  The CID may use this money directly to fund projects as set forth in the State Constitution, or more commonly to leverage the revenue to secure funding and grants for improvements.  CID funds are not to be used to replace government funds otherwise available for area improvements but are to be used otherwise to improve the economic vitality of a District and increase the speed with which needed improvements come to fruition.

C.        What are working examples of CIDs?

Atlanta’s first CID was the Cumberland District first formed in 1987.  It consists of 167 commercial properties and collects approximately $5 million annually.  That CID in its first 5 years leveraged $40 million into $400 million and is expected to leverage $30 million into $3 billion by 2006 for the construction of new roads and rail service in the area.  Two CIDs were created near the Perimeter Mall.  One is the DeKalb County Perimeter CID and the other is the Fulton County Perimeter CID, established in 1998 and 2001 respectively.  These two CIDs combine collect approximately $2.5 million annually and have to date secured $160 million in matching funds for improvements to roads, lighting, signage, streetscapes, and a traffic officer control program.  Other examples of CIDs include, the Buckhead Community Improvement District and the Highway 78 Corridor in Gwinnett County.[7]

III.       TRANSFERABLE DEVELOPMENT RIGHTS (TDRS)

In 1998, the Georgia Legislature adopted enabling legislation to permit local governments to implement plans allowing the transfer of development rights (TDRS).  See O.C.G.A. Section 36-66A-1. In adopting this enabling legislation Georgia joined approximately 24 other states wherein 107 TDR programs are in effect such as programs in the Pine Barrens of

New York, in the Everglades area of Collier County, Florida, and in the City of Chicago Landmark  District.  All of these programs provide for the protection of natural or historical features by permitting the transfer of distinct and severable rights to develop a parcel that can and should be preserved to another more suitable parcel that can more readily accommodate growth.[8]

In Georgia, “development rights”, under the enabling legislation means the maximum development that would be allowed on a sending property under local zoning and development ordinances and plans.  Section 36-66A-1. Local governments via the adoption of a TDR ordinance may provide for the preservation of the “character of the sending property” by allowing an owner to capitalize on its value through the approval of transferable development rights which may be sold or exchanged and affixed to a “receiving property”.  A “sending property” is a lot or parcel with special characteristics deemed worthy of preserving including farm land, wood land, desert land, mountain land, flood plain, natural habitats, wet lands, groundwater recharge areas, marsh hammocks, recreation areas or parkland, or land that has unique aesthetic, architectural or historic value.  Section 36-66A-1(6).  A “receiving area” is a lot or parcel within which development rights are increased because of the receipt of development rights transferred from a sending property.  The receiving property is deemed to be appropriate for increased development without substantial adverse environmental, economic, or social impact to the receiving property or its surrounds.  Section 36-66A-1(4).

The enabling legislation requires that a transfer of development rights must be consented to by the sending and receiving owners.  Moreover, prior to the transfer of any development rights a local government must adopt an ordinance containing certain elements.  Section 36-66A-2(b) and (c).  The requisite elements are provision for : 1) the issuance and recording of instruments necessary to sever development rights from the sending property and to affix such rights to the receiving property; 2) a mechanism to preserve the character of the sending property and bind the landowner and successors thereto; 3) a mechanism to sever the development rights from the sending property; 4) the purchase, sale, exchange or other conveyance of TDRs prior to the affixing of rights to the receiving property; 5) a system to monitor TDRs; 6) the right of local governments to purchase and hold TDRs for conservation purposes or resale; 7) the right of a person to purchase and hold TDRs for conservation purposes or resale; ad valorem taxation and alienability of the TDRs; and 9) a map or description of sending and receiving areas. Prior to the adoption of a TDR ordinance a local government must advertise for public hearing the proposed ordinance and conduct a hearing thereon.  Section 36-66A-2(c).

Fulton County was the first Georgia jurisdiction to adopt a TDR ordinance pursuant to the 1998 legislation.  On April 2, 2003, Fulton County adopted its TDR Ordinance and made the transfer of development rights available to certain landowners.  This ordinance in conjunction with the Chattahoochee Hill Country Community Plan and the Fulton County Chattahoochee Hill Country Overlay District Ordinance adopted in 2002 made TDRS a potential reality in the Chattahoochee Hill Country, an area of approximately 40,000 undeveloped acres, south and west of Atlanta on the Chattahoochee River.  See attached ordinance, Fulton County Zoning Resolution, Article VI, Section 58-240 et seq.  Receiving areas under the ordinance are areas intended for mixed-use development, specifically the three Living Working Areas in the Chattahoochee Hill Country. Section 58-244. Pursuant to the ordinance qualified landowners apply to Fulton County  for a development rights certificate. Section 58-246. Within 95 days of the complete application the Department of Community and Environment certifies the number of transferable development rights to which an owner is entitled and assigns serial numbers accordingly.  For each gross acre of the sending area landowners within the Chattahoochee Hill Country are allowed 1 TDR per 1 acre of property without a residential structure. Section 58-247.  These rights may be transferred to property within designated receiving areas, namely designated living working areas within Fulton County, pursuant to formulas set forth in Section 58-248.  The formula varies for residential receiving property and commercial receiving property.  A deed of transfer is required to convey development rights and a conservation easement preserving the requisite number of sending acres must be signed and recorded before the deed of transfer is executed and recorded.  Section 58-252.  The ordinance also sets forth regulations for the establishment and operation of TDR banks. Sections 58-254 and 58-255.

According to a representative of the Chattahoochee Hill Country Conservancy to date a total of six landowners have registered TDRs with the County.  These land owners range in ownership interests from 10 to 100 acres, however, because the registration and approval of TDRs is returned to the property owners the Conservancy is unaware of the number of CHHC TDRs actually registered with the County.  Unfortunately, no TDR banks have been established to purchase and hold TDRs within the CHHC although the Conservancy is exploring the possibility of becoming a TDR bank and seeking funding for same.  This means that there is currently no market for purchase and sale of the TDRs.  However, interest in TDRs remain high and once a “village” developer within the receiving area begins development plans this interest is bound to heighten.

[2] The statute actually sets forth eighteen required elements to a redevelopment plan.  For more detail refer to O.C.G.A. Section 36-44-3(9)(A)-(R).

[3] For the details of this report see, The Right Tools for the Job? An Analysis of Tax Increment Financing, the Heartland Institute at www.heartland.org.

[4] For the complete study, see Straying From Good Intentions:  How States are Weakening Enterprise Zone and Tax Increment Financing Programs , a Report by Good Jobs First, August 2003. www.goodjobsfirst.org.

[5] See, Shopping For Subsidies: How Wal-Mart Uses Taxpayer Money to Finance Its Never Ending-Growth , Good Jobs First-May 2004.

[6] The administrative body may also be designated as the governing authority of the municipality or county.  If a private administrative body is designated, representation on the CID board shall include representatives of the county or municipality within which the CID is located.  Article IX, Section VII, Paragraph III (a).

[7] For general information on the individual CIDs visit the following web sites: www.buckhead.org/cid; www.gwinnettplacecid.org; www.perimietercid.org.

[8] APA Growing Smart Legislative Guidebook (January 2002), Chapter 9.

MONEY AND SMART GROWTH:

Tax Allocation Districts

Community Improvement Districts

And

Transfer of Development Rights

Linda I. Dunlavy

Dunlavy Law Group

1026B Atlanta Avenue

Decatur, GA 30030

404.371.4101 Telephone

(404) 371-8901 Facsimile

ldunlavy@dunlavylawgroup.com(e-mail)

I.          TAX ALLOCATION DISTRICTS (TADs) AND TAX INCREMENT FINANCING (TIFs)

A.        Statutory Mechanism

In 1985, pursuant to a state Constitutional Amendment (Article IX, Sec. II, ¶ VII), Georgia adopted the Redevelopment Powers Law, O.C.G.A. § 36-44-1 et seq. Copies of the Constitutional Amendment and the statute are attached to this article.

The Redevelopment Powers Law was amended in 2001, and again in 2004, to make its application more comprehensive.  In general, the Georgia Redevelopment Powers Law gives local government the authority to create what are known as “Tax Allocation Districts”.  These Districts are required to be within “redevelopment areas” as defined in O.C.G.A. § 36-44-3(7).  Redevelopment areas are those areas which are considered to be economically or socially depressed or substandard.  The clear initial objective of the legislation is to assist local governments in stimulating economic development in blighted areas.  By enticing development into urban areas, where costs of development are normally higher than in areas with little or no existing development, local governments hope to improve conditions within the District. Pursuant to the Redevelopment Powers Law, Georgia counties and municipalities may issue bonds to finance infrastructure and other redevelopment costs within Tax Allocation Districts.[1] Typical uses of TAD financing include, but are not limited to, construction or improvement of roads, sewers, sidewalks, streetscapes, landscaping, design and engineering, renovation of buildings and land acquisition.

TAD bonds are secured by what is known as a “Tax Allocation Increment” (O.C.G.A. § 36-44-3(14)).  The Tax Allocation Increment represents the difference between the value of all taxable property within a Tax Allocation District on the effective date such district is created and the actual ad valorem tax revenues resulting from redevelopment activities. The tax allocation increment is determined by multiplying the total ad valorem property taxes levied on all taxable property within a tax allocation district in any year by a fraction having a numerator equal to that year’s taxable value of all taxable property within the tax allocation district minus the tax allocation increment base and a denominator equal to that year’s taxable value of all taxable property within the tax allocation district. O.C.G.A. Section 36-44-3(14). In other words, upon the creation of a TAD the ad valorem tax base is “frozen”.  Improvements within the TAD will hopefully attract new businesses and thereby increase taxable value within the District.  The increase in tax revenues is used to pay off the bonds.

In lieu of issuing bonds, improvements may be financed on a pay as you go basis.  The investment in development cost for a particular Tax Allocation District may then be recaptured on tax revenues attributable to increases in property values within the Tax Allocation District.  Increasingly, local governments in Georgia have chosen to designate Tax Allocation Districts in an effort to aid in the economic redevelopment of targeted trouble areas within their boundaries.

The Redevelopment Powers Law is not self-executing, however.  A local government to become authorized to exercise the powers under the law must be enabled to do so through the adoption of a local law by the General Assembly or through local referendum wherein a majority of qualified voters approve such powers.  O.C.G.A. § 36-44-22.  Once the authority to exercise redevelopment powers is given, counties and municipalities need only approve a redevelopment area and adopt a redevelopment plan as set forth in the procedures of O.C.G.A. § 36-44-7.

Tax Allocation Districts are created within a redevelopment area upon submission of a redevelopment plan to the local legislative body. O.C.G.A. Section 36-44-7. In general, the redevelopment plan must identify the boundaries of the proposed redevelopment area, the basis for a finding that the area qualifies as a “redevelopment area” under the statute, the proposed redevelopment projects, the proposed tax allocation increment base, projected tax revenues, and the amount of the proposed tax allocation bonds. [2] The local legislative body must pass a resolution approving the Tax Allocation District after advertising and at least one public hearing.   O.C.G.A. Section 36-44-7(b) and (c).  If the redevelopment plan provides for taxes from other political subdivisions or a board of education as part of the tax allocation increment, consents from the effected entities must be secured prior to submission of the plan to the legislative body of the city or county. O.C.G.A. Section 36-44-8(1).

The redevelopment agency must apply in writing to the state revenue commissioner for a determination of a base taxable value for all properties within the tax allocation district no later than the effective date of creation of a tax allocation district.  O.C.G.A. Section 36-44-10(a). After receipt of the application and within 60 days after the creation of the tax allocation district, the state revenue commissioner must certify a base taxable value for all properties in the tax allocation district. That certified base value remains fixed (“frozen”) for the life of the tax allocation district regardless of any growth in the actual value of properties within the tax allocation district.  O.C.G.A. Section 36-44-15(a).

Creation of a tax allocation district does not mean that local governments or consenting political subdivisions thereof can not increase or decrease their ad valorem tax millage rates.  However, until a TAD is terminated, the millage rate on taxable property within the tax allocation district may not be decreased below the millage rate levied on the last date tax allocation bonds were issued. O.C.G.A. Section 36-44-15(b).

Once a TAD is created, the tax assessor notifies the county or municipality on an annual basis of the current taxable value of the property within the tax allocation district and the tax allocation base value.  O.C.G.A. 36-44-10(e).  If there are any taxes collected as a result of an increase in property values over the base value this increase will be paid to the local government for deposit into a “special fund” created to pay redevelopment costs within the tax allocation district, including debt service on any tax allocation bonds issued. O.C.G.A. Section 36-44-11.

The Redevelopment Powers Law provides that a tax allocation district exists until it is specifically dissolved by resolution of the local legislative body of the county or municipality. A tax allocation district may not be dissolved until all redevelopment costs, including debt service or outstanding bonds, have been paid.  O.C.G.A. 36-44-12.

B. Reality

TIF financing is now authorized in most states and its use is widespread nationally.  In Georgia however TIF financing is a relatively recent phenomenon.  TIF and TADs as a smart growth tool have really only been used in Georgia within the last decade. Since the adoption of the Redevelopment Powers Law, according to the Association of County Commissioners of Georgia, local legislation has been adopted for eighteen cities and eight counties.  Fifteen cities and six counties have ratified these local acts via referenda and 13 TADs have been created in the exercise of these powers.  Communities establishing TADs include the City of Atlanta, the City of East Point, Sandy Springs, Macon, Ellenwood, Marietta, Acworth, and Smyrna.  Other municipalities and counties are considering establishment of TADs, such as DeKalb County, College Park, Fort Valley, Warner Robins, Hapeville and Athens-Clarke County.

TADs of note include the Atlantic Steel Brownfields site at the 17^th Street bridge in Mid-Town; the Camp Creek TAD in East Point, and the Techwood Park TAD.  TADs created have experienced varying success.  For example, the first TAD created by the City of Atlanta in 1992 failed.  This was the Techwood Park TAD established in hopes of spurring economic development within the area of the 1996 Olympic stadium.  This TAD was created in 1992 and failed to generate the anticipated incremental tax revenues.  New investment did not materialize as hoped.  The second TAD established by the City of Atlanta is the Atlantic Steel project.  The initial phase of this development saw the City issue in excess of $76 million in tax allocation bonds.  The success of this planned mixed use development remains to be seen.  In contrast the Camp Creek TAD appears to be an off and running success.  The area designated by the City of East Point in a largely undeveloped space has attracted a major business park and retail center.  The center at Camp Creek Parkway and I-285 is the first major retail development in the City for greater than 50 years and is proving to be a huge draw in South Fulton County.

Nationally, TIF and TADs seem to be receiving mixed reports.  Major TIF projects nationally include, the renovation of historic theaters in Chicago, the financing of a museum, hotel and entertainment center in D.C., and the construction of a rapid transit station in Fremont, California.  While these projects appear to be “success stories”, the national trend in weakening the requirements for TADs and TIF may cause local jurisdictions to stray from the original intentions of redevelopment laws and result in anything but smart growth.  Recently, several studies have emerged suggesting that TIF as an economic development tool has produced poor results.  For example, the Heartland Institute conducted a study of five TIF districts in the city of Chicago to determine the impact of TIF on jobs, increase in businesses, residential property sales and housing prices.  The Institute determined that TIF does not tend to produce a net increase in economic activity and only appears to have limited impact on economic development. The Institute further concluded that TIF districts do not increase the number of businesses, do not result in net increases in the number of jobs and tend to favor large national businesses to the detriment of small business owners, small land owners, and low income residents.[3]

Good Jobs First in August of 2003 produced a report with the results of its examination of legislative changes to, inter alia, tax increment financing.  It found that of the states adopting TIF laws, sixteen of those states, including Georgia, have weakened their TIF laws.  The weakening has occurred through the loosening of the definition of “redevelopment areas”, such that these areas no longer require blight or poverty as a precondition to the designation of an area as one in need of redevelopment.  For example, Good Jobs notes that in 2001 Georgia amended the Redevelopment Powers Law to extend the definition of “redevelopment area” to include any area previously developed for commercial, industrial, residential or similar uses “in which the current condition of the area is less than desirable for the redevelopment area”. The definition was further expanded to allow designation for those areas “adversely affected by airport or transportation related noise”.  O.C.G.A. Section 36-44-3(7)(F).  This means that the Redevelopment Powers Law can be used to develop mass transit facilities, telecommunication infrastructure or pedestrian access in any local jurisdiction, apparently regardless of “blight”.  At least, unlike most other states, Georgia Redevelopment Plans can not be approved without voter approval.[4]

Good Jobs also collected information concerning Wal-Mart as a recipient of economic development subsidies.[5] Good Jobs found Wal-Mart to be a frequent recipient of healthy TIF subsidies largely for infrastructure improvements. These subsidies were not always in low income areas suffering from demonstrable blight (i.e. one was in Wisconsin for improvements on land previously used as an apple orchard).  This appears to be contrary to the general “but for” precondition found in most TIF legislation—namely that “but for” public funding the project would be unlikely to be completed.  O.C.G.A. Section 36-44-3(9)(B).  One is compelled to ask would Wal-Mart build without TIF?  Does it make sense to use TIF as a tool to subsidize Wal-Mart and other big box retailers, the businesses which many in the planning community would suggest are the antithesis of smart growth?

The answers to the foregoing questions remain unanswered in Georgia.  The author is unaware to date of TIF money being used in Georgia to date for Wal-Mart specifically.  However, DeKalb County may be headed in that direction.  At the end of the year, the Board of Commissioners for DeKalb County passed a resolution designating an area including the old Avondale Mall site on Memorial Drive and Columbia as a TAD.  News reports indicate that one of the major reasons for this action was to entice Wal-Mart to be part of a mixed use development at this key corner.  If in fact Wal-Mart will spur economic redevelopment, create new jobs and increase the ad valorem taxes within the area, it would be in keeping with the intent of the Redevelopment Powers Law.  However, given the impacts of a Wal-Mart Supercenter one must wonder whether it will result in smart growth.  In adopting redevelopment plans pursuant to the Redevelopment Powers Law, local jurisdictions need to exercise their powers with eyes wide open.  Just because a local government utilizes the TIF/TAD tools available in that legislation does not mean that the end result will be “smart growth” or lasting economic improvement of blighted urban areas.

II.        COMMUNITY IMPROVEMENT DISTRICTS (CIDs)

A.        What is a CID?

A CID is a “Community Improvement District”.  Article IX, Section VII, Paragraph I,  of the Georgia Constitution provides for the creation of these self-taxing districts by local act of the General Assembly.  A CID may be created for seven specific purposes under Paragraph II, namely for: 1) street and road construction and maintenance; 2) parks and recreational areas and facilities; 3) storm water and sewage collection and disposal systems; 4) development, storage, treatment, purification and distribution of water; 5) public transportation; 6) terminal and dock facilities and parking facilities; and 7) “such other services and facilities as may be provided by general law”.  A CID is usually a private business organization not an arm of local government.[6] However, the law creating the CID must receive the consent by resolution of the county or municipality within which the proposed CID is located.  Additionally, written consent of a majority of the property owners within the proposed CID and the owners of at least 75% by value, as determined by the county ad valorem tax digest, of the property within the proposed CID.  Article IX, Section VII, Paragraph III(b)(2). The administrative body of a CID is authorized to levy taxes, fees, and assessments on non-residential property within the CID up to 2 ½ percent the assessed value of the real property. Article IX, Section VII, Paragraph III(c).

B.        How does a CID work?

Once a majority of the commercial property owners representing 75% of the assessed property value within the proposed CID agree to tax themselves for improvements permitted under the State Constitution, the local governing authority must recognize the CID via resolution and the property owners must elect a board to set the tax rate (the additional mils to be paid by CID property owners) and to identify the projects to be funded through the increased tax revenue for the District.  The increased tax revenues are collected by the governing authority’s tax

commissioner and disbursed to the CID board.  The CID may use this money directly to fund projects as set forth in the State Constitution, or more commonly to leverage the revenue to secure funding and grants for improvements.  CID funds are not to be used to replace government funds otherwise available for area improvements but are to be used otherwise to improve the economic vitality of a District and increase the speed with which needed improvements come to fruition.

C.        What are working examples of CIDs?

Atlanta’s first CID was the Cumberland District first formed in 1987.  It consists of 167 commercial properties and collects approximately $5 million annually.  That CID in its first 5 years leveraged $40 million into $400 million and is expected to leverage $30 million into $3 billion by 2006 for the construction of new roads and rail service in the area.  Two CIDs were created near the Perimeter Mall.  One is the DeKalb County Perimeter CID and the other is the Fulton County Perimeter CID, established in 1998 and 2001 respectively.  These two CIDs combine collect approximately $2.5 million annually and have to date secured $160 million in matching funds for improvements to roads, lighting, signage, streetscapes, and a traffic officer control program.  Other examples of CIDs include, the Buckhead Community Improvement District and the Highway 78 Corridor in Gwinnett County.[7]

III.       TRANSFERABLE DEVELOPMENT RIGHTS (TDRS)

In 1998, the Georgia Legislature adopted enabling legislation to permit local governments to implement plans allowing the transfer of development rights (TDRS).  See O.C.G.A. Section 36-66A-1. In adopting this enabling legislation Georgia joined approximately 24 other states wherein 107 TDR programs are in effect such as programs in the Pine Barrens of

New York, in the Everglades area of Collier County, Florida, and in the City of Chicago Landmark  District.  All of these programs provide for the protection of natural or historical features by permitting the transfer of distinct and severable rights to develop a parcel that can and should be preserved to another more suitable parcel that can more readily accommodate growth.[8]

In Georgia, “development rights”, under the enabling legislation means the maximum development that would be allowed on a sending property under local zoning and development ordinances and plans.  Section 36-66A-1. Local governments via the adoption of a TDR ordinance may provide for the preservation of the “character of the sending property” by allowing an owner to capitalize on its value through the approval of transferable development rights which may be sold or exchanged and affixed to a “receiving property”.  A “sending property” is a lot or parcel with special characteristics deemed worthy of preserving including farm land, wood land, desert land, mountain land, flood plain, natural habitats, wet lands, groundwater recharge areas, marsh hammocks, recreation areas or parkland, or land that has unique aesthetic, architectural or historic value.  Section 36-66A-1(6).  A “receiving area” is a lot or parcel within which development rights are increased because of the receipt of development rights transferred from a sending property.  The receiving property is deemed to be appropriate for increased development without substantial adverse environmental, economic, or social impact to the receiving property or its surrounds.  Section 36-66A-1(4).

The enabling legislation requires that a transfer of development rights must be consented to by the sending and receiving owners.  Moreover, prior to the transfer of any development rights a local government must adopt an ordinance containing certain elements.  Section 36-66A-2(b) and (c).  The requisite elements are provision for : 1) the issuance and recording of instruments necessary to sever development rights from the sending property and to affix such rights to the receiving property; 2) a mechanism to preserve the character of the sending property and bind the landowner and successors thereto; 3) a mechanism to sever the development rights from the sending property; 4) the purchase, sale, exchange or other conveyance of TDRs prior to the affixing of rights to the receiving property; 5) a system to monitor TDRs; 6) the right of local governments to purchase and hold TDRs for conservation purposes or resale; 7) the right of a person to purchase and hold TDRs for conservation purposes or resale; ad valorem taxation and alienability of the TDRs; and 9) a map or description of sending and receiving areas. Prior to the adoption of a TDR ordinance a local government must advertise for public hearing the proposed ordinance and conduct a hearing thereon.  Section 36-66A-2(c).

Fulton County was the first Georgia jurisdiction to adopt a TDR ordinance pursuant to the 1998 legislation.  On April 2, 2003, Fulton County adopted its TDR Ordinance and made the transfer of development rights available to certain landowners.  This ordinance in conjunction with the Chattahoochee Hill Country Community Plan and the Fulton County Chattahoochee Hill Country Overlay District Ordinance adopted in 2002 made TDRS a potential reality in the Chattahoochee Hill Country, an area of approximately 40,000 undeveloped acres, south and west of Atlanta on the Chattahoochee River.  See attached ordinance, Fulton County Zoning Resolution, Article VI, Section 58-240 et seq.  Receiving areas under the ordinance are areas intended for mixed-use development, specifically the three Living Working Areas in the Chattahoochee Hill Country. Section 58-244. Pursuant to the ordinance qualified landowners apply to Fulton County  for a development rights certificate. Section 58-246. Within 95 days of the complete application the Department of Community and Environment certifies the number of transferable development rights to which an owner is entitled and assigns serial numbers accordingly.  For each gross acre of the sending area landowners within the Chattahoochee Hill Country are allowed 1 TDR per 1 acre of property without a residential structure. Section 58-247.  These rights may be transferred to property within designated receiving areas, namely designated living working areas within Fulton County, pursuant to formulas set forth in Section 58-248.  The formula varies for residential receiving property and commercial receiving property.  A deed of transfer is required to convey development rights and a conservation easement preserving the requisite number of sending acres must be signed and recorded before the deed of transfer is executed and recorded.  Section 58-252.  The ordinance also sets forth regulations for the establishment and operation of TDR banks. Sections 58-254 and 58-255.

According to a representative of the Chattahoochee Hill Country Conservancy to date a total of six landowners have registered TDRs with the County.  These land owners range in ownership interests from 10 to 100 acres, however, because the registration and approval of TDRs is returned to the property owners the Conservancy is unaware of the number of CHHC TDRs actually registered with the County.  Unfortunately, no TDR banks have been established to purchase and hold TDRs within the CHHC although the Conservancy is exploring the possibility of becoming a TDR bank and seeking funding for same.  This means that there is currently no market for purchase and sale of the TDRs.  However, interest in TDRs remain high and once a “village” developer within the receiving area begins development plans this interest is bound to heighten.

[2] The statute actually sets forth eighteen required elements to a redevelopment plan.  For more detail refer to O.C.G.A. Section 36-44-3(9)(A)-(R).

[3] For the details of this report see, The Right Tools for the Job? An Analysis of Tax Increment Financing, the Heartland Institute at www.heartland.org.

[4] For the complete study, see Straying From Good Intentions:  How States are Weakening Enterprise Zone and Tax Increment Financing Programs , a Report by Good Jobs First, August 2003. www.goodjobsfirst.org.

[5] See, Shopping For Subsidies: How Wal-Mart Uses Taxpayer Money to Finance Its Never Ending-Growth , Good Jobs First-May 2004.

[6] The administrative body may also be designated as the governing authority of the municipality or county.  If a private administrative body is designated, representation on the CID board shall include representatives of the county or municipality within which the CID is located.  Article IX, Section VII, Paragraph III (a).

[7] For general information on the individual CIDs visit the following web sites: www.buckhead.org/cid; www.gwinnettplacecid.org; www.perimietercid.org.

[8] APA Growing Smart Legislative Guidebook (January 2002), Chapter 9.

TARGOVNIK ET AL. v. CITY OF DUNWOODY ZONING BOARD OF APPEALS.

A10A1481.

COURT OF APPEALS OF GEORGIA, FOURTH DIVISION

2010 Ga. App. LEXIS 1114

November 29, 2010, Decided

NOTICE:

THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BY THE COURT.

DISPOSITION: [*1]    Judgment reversed.

JUDGES: SMITH, Presiding Judge. Mikell and Adams, JJ., concur.

OPINION BY: SMITH

OPINION

Smith, Presiding Judge.

In this discretionary appeal, Tara Targovnik, Harris Targovnik, Mary Wynn, and Edward Wynn (collectively, “the appellants”) seek discretionary review of the trial court’s dismissal of their petition for certiorari based upon an insufficient certificate of costs. For the reasons set forth below, we reverse.

The record shows that the City of Dunwoody Zoning Board of Appeals approved a stream buffer variance for a Dunwoody property owner to build a playground for a preschool. The appellants — four neighboring homeowners — opposed the variance and filed a petition for certiorari to the superior court. The city moved to dismiss the petition based upon the appellants’ failure to have the proper person sign their certificate of payment of costs. The superior court agreed and dismissed the petition for certiorari.

A city’s zoning ordinance may specify a particular method of appellate review, including by writ of certiorari. See Jackson v. Spalding County, 265 Ga. 792, 793 (1) (462 SE2d 361) (1995). Section 5D-20 (a) of the City of Dunwoody Code of Ordinances provides that appeals from final  [*2] decisions of the zoning board of appeals shall be made though a petition to the Superior Court of DeKalb County for a writ of certiorari.

OCGA § 5-4-5 (a) provides:

Before any writ of certiorari shall issue [from superior court], . . . the party applying for the same . . . shall also produce a certificate from the officer whose decision or judgment is the subject matter of complaint that all costs which may have accrued on the trial below have been paid. The . . . certificate shall be filed with the petition for certiorari.

(Emphasis supplied.) The certificate of costs initially submitted by the appellants in this case was not signed by any of the members of the board of zoning appeals that issued the decision for which certiorari was sought. Instead, it was signed by Jennifer Peterson, the Director of Community Development for the City of Dunwoody, because the appointed secretary for the board of zoning appeals, Howard Koontz, was not in the office at the time the appellants sought a certificate. Koontz provided an affidavit to the court and averred that Peterson “was authorized in my absence to perform the duties of the [board of zoning appeals] secretary.” He also explained that the  [*3] members of the board “do not maintain their own records. As such, the members would have no personal knowledge as to the costs associated with any . . . appeal . . . filed for their consideration, let alone whether all costs (such as copying costs) had been paid.”

Historically, Georgia courts have required that the certificate be signed by the judge whose decision the applicants seek to challenge or “the certiorari is void.” Veal v. Eagle Fire Ins. Co., 103 Ga. App. 757 (1) (120 SE2d 674) (1961). The question now before this court is: How does a party appealing from a multi-member board obtain a certificate “from the officer whose decision or judgment is the subject matter of complaint”? OCGA § 5-4-5 (a).

The appellants assert that the duly appointed secretary for the board of zoning appeals, or his proxy, should be considered the appropriate person to issue the certificate of cost payment. In support of this argument, the appellants point to the following provisions of the city ordinance:

The Community Development Director or the director’s designee may serve as secretary to the board as directed by the City Manager. The secretary shall make tape recordings and keep minutes of the proceedings  [*4] of the board, showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and shall keep records of its official actions and evidence submitted, all of which shall be filed in the office of the planning department and shall be a public record. Permanent and complete records of the proceedings and decisions of the board shall be maintained. City of Dunwoody Code of Ordinances, Section 5D-8.

In any such petition [for certiorari] filed, the zoning board of appeals shall be designated the respondent in certiorari and City of Dunwoody the defendant in certiorari. The secretary of the zoning board of appeals shall be authorized to acknowledge service of a copy of the petition and writ for the zoning board of appeals as respondent. City of Dunwoody Code of Ordinances, Section 5D-20 (b).

The charter for the City of Dunwoody expressly provides that a city board, such as the board of zoning appeals, “may appoint as secretary an employee of the city.” City of Dunwoody Charter Section 2.14 (g).

Based upon the city ordinances and charter conferring ministerial power to the secretary for the board of zoning appeals and the facts and circumstances of this  [*5] particular case, we conclude that the duly appointed secretary for the City of Dunwoody Zoning Board of Appeals, or his proxy, may issue the required certificate of costs. We therefore reverse the superior court’s dismissal of the appellants’ petition for certiorari. See Harte v. Sturtevant, 20 Ga. App. 822 (93 SE 530) (1917) (particular act creating municipal court broad enough to allow clerk of court to issue certificate of costs). Compare Veal v. Eagle Fire Ins. Co., 103 Ga. App. 757 (2) (120 SE2d 674) (1961) (particular statute creating city court did not give clerk “broad power” to issue bond).

Judgment reversed. Mikell and Adams, JJ., concur