City of McDonough v. Tusk Partners
City of McDonough v. Tusk Partners
Opinion of the Court
Tusk Partners, a Georgia .general partnership, filed an applica
The evidence heard by the trial court included: Tusk’s planning expert testified that the property would not be desirable for residential purposes because of the traffic on Jonesboro Road and testified that residential properties adjacent to Tusk’s property would not be adversely affected by zoning Tusk’s property commercial in that buffers would adequately shield the adjacent residential properties from customer traffic, tractor truck deliveries, and the light from the all-night security beacons that would be installed throughout the several planned parking lots. The planning expert noted there was a nearby residential development on Jonesboro Road with a buffer zone between the road and the homes. Tusk’s property has 983 feet of frontage on Jonesboro Road and is centrally located between the center of the City of McDonough and Interstate 75, with these two desirable destinations less than two miles away in either direction. The planning expert testified there would be “enormous pressure just to strip zone this entire road”; stressed that many of the other Jonesboro Road properties surrounding Tusk’s are already zoned commercial (the trial court noted most had been zoned commercial by court order); and testified that changing the zoning on Tusk’s property from residential to commercial would “relieve pressure” on other properties along Jonesboro Road to become commercial strip shopping areas. Tusk’s planning expert testified that it was “very important” that Jonesboro Road not become “one long strip of commercial
Evidence on behalf of the City included testimony by the City’s planning expert that the property was in the midst of a developing residential area; that a domino effect would result if the property was zoned commercial; that traffic would increase; and that plenty of commercially zoned property already existed in the area. There was also testimony the property is worth $250,000 as zoned; that Tusk would earn a 30 percent gross profit selling it at this amount; and that Tusk has not attempted to market, use, or sell the property.
The trial court ruled that the current R-100 zoning was significantly detrimental to Tusk and was unsubstantially related to the public health, safety, morals, and welfare. Based on prior precedent, we will affirm the ruling of a trial court on the constitutionality of a zoning ordinance unless that ruling is “clearly erroneous.” Where a
Judgment affirmed.
The original site plan reflected 155,000 square feet of commercial space plus 30,000 square feet of out-parcel buildings and 804 parking spaces, with no retention pond.
Concurring Opinion
concurring specially.
The City of McDonough (“the City”) appeals from the trial court’s ruling (1) finding the zoning classification for property owned by Tusk Partners to be unconstitutional, and (2) ordering the City to rezone the property in a constitutional manner. Because I believe that Tusk Partners satisfied its burdens before the trial court to show by clear and convincing evidence both that it would suffer a significant detriment under the City’s zoning and that the zoning bore an insubstantial relationship to the public interest, and because I believe that the City failed to rebuff that evidence, I would uphold the trial court’s ruling. I write separately, however, in order to clarify and reiterate the appropriate standards of review to be utilized by trial and appellate courts in zoning cases.
1. The focus in all zoning cases is, of course, whether the party challenging existing zoning has suffered a significant deprivation that is insubstantially related to the public health, safety, morality, or welfare.
On appeal, this Court applies the “clearly erroneous” standard to its review of the trial court’s findings of fact.
2. This case concerns what this Court has referred to as “fringe property” — a residential property bordering commercial property, with the economic value of the property for residential use lessening with encroaching commercial development. When considering the
3. The majority states that so long as a property owner brings forth evidence showing “a down turn in viability of property under its current zoning, and a decrease in land value if the property remains under its current zoning,” a trial court does not err by concluding the property owner has established a significant detriment. To the extent this statement means that the value of the property as it presently is zoned is a relevant consideration in determining whether there has been a significant detriment, it is correct.
Furthermore, the majority opinion states that if “the evidence conflicts as to the impact of the use on the public health and welfare, the trial court does not clearly err by concluding the property owner” has shown the classification is insubstantially related to the public interest. This conclusion not only accords undue deference to the trial court’s conclusions of law, it overlooks this Court’s obligation to examine the record for benefits to the public inuring from the challenged zoning classification.
4. Turning to the facts of this case, the trial court made the following relevant findings of fact: (1) Tusk Partner’s property (“the
Based upon these findings, the trial court reached the following conclusions: (1) commercial development in and of itself is not harmful to the public health, safety or welfare (citing Sellars v. Cherokee County, 254 Ga. 496 (330 SE2d 882) (1985)); (2) the City’s argument that adequate commercial development already exists on Jonesboro Road was legally insufficient (citing Sellars, supra); (3) Tusk Partners met their burden of showing by clear and convincing evidence that the current R-100 zoning was significantly detrimental to them, and insubstantially related to the public interest, and the City failed to rebut that showing; (4) the R-100 zoning must be struck down as unconstitutional.
While the trial court’s conclusions are incomplete — it fails to explain why Tusk Partners satisfied its burden and why the City failed to rebut that showdng — I nonetheless agree with its ultimate determination that the R-100 zoning is unconstitutional. The record
A zoning classification may be set aside if it “ ‘results in relatively little gain or benefit to the public while inflicting serious . . . loss to the owner.’ ”
As found by the trial court, and as supported by the evidence of record, because the R-100 zoning classification seriously damages the property’s owner, and is not substantially related to the public health, safety, or welfare, the classification is unconstitutional and must be set aside.
I am authorized to state that Presiding Justice Fletcher joins in this special concurrence.
Holy Cross Lutheran Church v. Clayton County, 257 Ga. 21 (354 SE2d 151) (1987); Gradous v. Bd. of Commrs., 256 Ga. 469, 470 (349 SE2d 707) (1986); see Delta Cascade Partners II v. Fulton County, 260 Ga. 99, 100 (390 SE2d 45) (1990).
Holy Cross Lutheran Church, supra; Gradous, supra; Guhl v. Holcomb Bridge Rd.
Holy Cross Lutheran Church, supra (emphasis in original). See Gradous, supra; Delta Cascade, supra; Flournoy v. City of Brunswick, 248 Ga. 573, 574 (285 SE2d 16) (1981).
City of Roswell v. Heavy Machines Co., 256 Ga. 472, 474 (349 SE2d 743) (1986); Holy Cross Lutheran Church, supra; Gradous, supra; Delta Cascade, supra; Flournoy, supra.
Heavy Machines Co., supra; Holy Cross Lutheran Church, supra; Flournoy, supra; Chamblee-Dunwoody Hotel Partnership, 248 Ga. at 189.
Dougherty County v. Webb, 256 Ga. 474, 477, n. 3 (350 SE2d 457) (1986); Heavy Machines Co., supra; Bd. of Commrs. v. Skelton, 248 Ga. 855 (286 SE2d 729) (1982).
Holy Cross Lutheran Church, supra; Dougherty County, supra.
Holy Cross Lutheran Church, supra; Skelton, 248 Ga. at 856-857; see Bickerstaff Clay Products Co. v. Harris County, 89 F3d 1481, 1486, 1488-1490 (11th Cir. 1996) (construing Georgia law).
Skelton, supra; Holy Cross Lutheran Church, supra.
Op. at 695.
Holy Cross Lutheran Church, supra (citation omitted). See Flournoy, supra; Gradous, supra.
Chamblee Dunwoody Hotel Partnership, 248 Ga. at 189.
Holy Cross Lutheran Church, 257 Ga. at 23; Gradous, 256 Ga. at 472. See Delta Cascade, 260 Ga. at 100; Chamblee Dunwoody Hotel Partnership, 248 Ga. at 189; Koppar v. Griswell, 246 Ga. 539, 540 (272 SE2d 272) (1980).
See Skelton, 248 Ga. at 857; Barrett v. Hamby, 235 Ga. 262, 266 (219 SE2d 399) (1975).
Skelton, 248 Ga. at 857; City of Atlanta v. McLennan, 240 Ga. 407 (240 SE2d 881) (1977). The trial court also made findings regarding the value of the property as presently zoned versus its value as commercial property. As has been stated repeatedly by this Court, however, the fact that property will be more valuable if rezoned is immaterial. Delta Cascade, supra; Chamblee Dunwoody Hotel Partnership, supra.
Skelton, 248 Ga. at 856 (quoting Barrett, 235 Ga. at 266).
Reference
- Full Case Name
- CITY OF McDONOUGH Et Al. v. TUSK PARTNERS
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- Published