Stream Buffers Eminent Domain

By

John G. Breakfield

Coleman, Chambers, Rogers & Williams, LLP

This article is intended for educational purposes only and is not intended to be, nor should it in any manner be construed to be, the giving of legal advice.

Due to the growing political popularity of legitimate and sometimes illegitimate and reactionary environmental concerns, local governments in Georgia have been passing ordinances with the blessing of the State of Georgia, which severely limit what landowners can do with their land. These ordinances tend to be an expansion of the area around a stream upon which one can build. This area upon which one cannot build is commonly called a 'stream buffer.'

Recently, a type of ordinance that has been frequently passed by local governments is to expand the stream buffer from 25 feet to 75 feet. This means that if a person owns land with, what the government states is a stream, then that owner cannot build within 75 feet of the stream. It does not matter that the land may have been bought a long time ago for investment or for a retirement dream home. A major problem arises when a home or a business simply cannot fit on the lot with a 75 foot stream buffer. In many cases, local zoning requires that a home be a certain size and as a result can only fit under a 25 foot stream buffer, not a 75 foot buffer.

So what happens when a local ordinance ruins a landowner's potential uses for the property? What does the government have to pay?

I. SHORT ANSWER

If a government dramatically reduces the value of a landowner's property with a regulation, then under most scenarios, the landowner is not compensated for his loss or reduction in fair market value. The legitimate concern over the stream buffer expansion is a political issue and should be vigorously attacked by its opponents in the local hearing before it becomes law.

In regards to legal recourse, a regulation like the stream buffer expansion regulation is not a taking (i.e. the government does not have to pay the landowner) unless it results in: 1) a significant detriment not substantially related to public benefit, 2) a complete taking or 3) a taking of a "vested right." This high burden on a landowner can require a very uphill battle on legal grounds.

This is different than a DOT taking because the DOT is using the land to allow for public access and there is a specific statutory scheme in place for DOT takings.

II. SENATE BILL 30

Many find it frustrating that there is not a clear remedy for a landowner that has some of its land restricted from use, when there is a remedy for the same owner when all of the land is taken. This makes zero sense and Senate Bill 30 (SB 30) was designed to correct this, but it was not passed into law.

In the 2005-2006 session of the Georgia Legislature, Senate Bill 30 was introduced and approved by the Senate, but was stopped by a procedural move by the supporters of the local governments not wanting to actually pay for land damaged by their policies.

SB 30 was to set up a system similar to takings that occur in power line cases and have a special master (an informal judge) determine the value of the inverse condemnation (regulatory taking). Unfortunately, Georgia did not enact this legislation to provide just compensation to those dramatically affect by the government ruining the fair market value of their land.

III. POLITICAL ARGUMENTS

There are many political arguments that have been made to try to prevent to passage of local stream buffer ordinances, such as:

A landowner's land is often like a 401(k) retirement plan, upon which families look to retire on the profits of the land or on the land itself. The action by local government is tantamount to taking away the retirement of its citizens. Clearly, it is not right to take someone's stocks and bonds, so why is it right to take their land's fair market value without paying for it?

Where is the scientific evidence to support the position that a larger 75 foot buffer is better than a 25 foot buffer? There is a potential argument that without the science to back it up, a landowner suffers a significant detriment not substantially related to public benefit (which is the judicial standard mentioned above).

It is important to remember the basic language of the 5 th Amendment:

No person shall... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

IV. ZONING/REGULATORY TAKING (GEORGIA)

The stream buffer regulation is through the local government's power to enact zoning regulations. If the zoning is enacted, then one most likely would have to seek a variance.

A. LEGAL STANDARD THAT MUST BE MET:

A landowner looking to challenge the stream buffer would have to establish that the council's action was an unconstitutional taking of the property which caused the property a significant detriment. A significant detriment is not that the property could be used for highest and best usage, but whether the action by the council would mean that the property, as zoned, had no realistic viable economic purpose or use.

The landowner would have to show (1) a significant detriment to the property and (2) that the council's decision was not substantially related to public health, safety, morality and welfare, (3) then after the landowner has met the burden of steps 1 and 2, then the local authority has a chance to rebut and explain their decision as it relates to public health, safety, morality and welfare. Only if the landowner meets the first two steps does the local authority have to come forth with evidence regarding the third.

B. AUTHORITY:

The Supreme Court of Georgia has addressed the issue of zoning on numerous occasions and generally speaking, the Court recognizes and adheres to the separation of powers principle in that the local council or commission is an elected body which is charged with the responsibility for zoning. Through the separation of powers, the Court allows great latitude for elected officials in making decisions regarding how the city or county will treat zoning issues. However, the local authority's responsibility and power to zone is not absolute and the Court requires that the U.S. and Georgia Constitutions be followed in regards to a person's property rights not being taken from them without due process of law.

In the cases from the Georgia Supreme Court, many litigants made the mistake of arguing that their property should be re-zoned because the property owners were entitled to the "highest and best use". The Supreme Court has repeatedly denied this as meeting the constitutional standard and has reasoned that just because property could be used for a more profitable purpose, does not mean that it is a constitutional right.

Barrett v. Hanby, 235 Ga. 262, Supreme Court of Georgia, (1975), if a zoning regulation results in relatively little gain or benefit to the public while inflicting serious injury or loss to the owner, such regulation is confiscatory and void. It suffices to void it that damage to the owner is significant and is not justified by the benefit to the public.

DeKalb County v. Albritton Properties Southeast, 256 Ga. 103 (1986), that the land in question certainly retained some value as zoned, and overall, the evidence established the significant detriment required to be established under Georgia law.

Flournoy v. City of Brunswick, 248 Ga. 573 (1981), another factor as whether the existing zoning is causing a diminution in value of the subject property as compared to property similarly zoned. The property owners were unable to show by clear and convincing evidence that the current zoning had an insubstantial relationship to the governing public benefit. The fact that there already exist several encroachments into the neighborhood is good reason for the City Commission to watch and regulate this neighborhood carefully in order to preserve its integrity. The local government has drawn the line as to the encroachments and the landowners have not demonstrated by clear and convincing evidence that the denial of their zoning request was so unreasonable as to constitute and unconstitutional taking of their property.

Guhl v. Holcomb Bridge Road Corporation, 238 Ga. 322 (1977), the Court outlined factors to look at when the validity of each zoning ordinance is tested and the general lines in which the appellate court should review the matter. These standards are: (1) existing uses and zoning of nearby property (2) the extent to which the property values are diminished by the particular zoning restrictions (3) the extent to which the obstruction of property values of the Plaintiffs promotes the health, safety, morals or general welfare of the public (4) the wealth of gain to the public as compared to the hardship imposed by the individual property owner (5) the suitability of the subject property for the zoned purposes and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area and vicinity of the property.

In applying the above standards, it is important to remember that it is not the "highest and best use" of the property, but that the current zoning renders the property essentially or practically undevelopable under the current zoning.

Legacy Investment Group, LLC v. Kenn , 279 Ga. 778 (2005) - Testimony that property would be worth more if rezoned is insufficient to prove a significant detriment since a more intense use of the land due to a rezoning will inevitably increase the value of the land. The burden is to show by clear and convincing evidence that the existing zoning (1) causes the property a significant detriment and (2) is not substantially related to the public's health, safety, morality and welfare. Evidence that property cannot feasibly be developed under its existing zoning supports the finding that existing zoning imposes a significant detriment on the owner (whether there is a viable economic use of the property under the current zoning).

Town of Tyrone v. Tyrone, LLC, 275 Ga. 383 (2002), the question is not whether re-zoning would increase the value of the land; the question is whether the existing zoning classification could deprive the landowner without due process of law. The critical evidence is the value of the land as zoned. Zoning need not render property worthless before an unconstitutional deprivation occurs. A significant detriment is not established by evidence only that it would be difficult for the owner to develop the property under its existing zoning or that the owner will suffer economic harm unless the property is rezoned. The developer in this case was not able to show by clear and convincing evidence that the property could not developed under the current zoning level.

DeKalb County v. Chamblee Dunwoody Hotel Partnership , 248 Ga. 186 (1981): Evidence of the subject property would be more valuable if rezoned for use at a higher zoning standard borders on being irrelevant. The judicial standard is not whether there was evidence to support the trial court's decision, but whether there was evidence to support the county's decision. This case was one where the county addressed the third step and showed that the property as zoned had substantial value and that the zoning bears a substantial relationship to the public welfare by providing a buffer area between single family residence areas and non-residential uses.

Henry County v. Tim Jones Properties, Inc. , 271 Ga. 190 (2000): Landowner filed a Declaratory Judgment arguing that the denial of the re-zoning was so arbitrary and capricious as to amount to an unconstitutional taking. It was unfeasible to develop the entire tract for commercial use or to develop the property with lots as large as the zoning classification dictated in light of the development of like and surrounding tracts. The property owner has the burden of showing the zoning classification under attack is so detrimental to the owner and insubstantially related to the public health, safety, morality and welfare, as to amount to an unconstitutional taking. That is an arbitrary confiscation of the owner's property without compensation by the governing authority.

V. FEDERAL CONSTITUTIONAL STARDARD

The property owner must show that the owner has been deprived of all economic use for a taking to have occur. Corn v. City of Lauderdale Lakes, 95 F.3d 1066 (11 th Cir. 1996).

VI. VESTED RIGHTS

If a landowner can show an "approved development plan" and "substantial expenditures" being made in reliance upon the approved development plan that would be extremely helpful. Essentially, if no plan is in place prior to the passage of the stream buffer ordinance, then it may put a landowner into a race to achieve an approved plan before the new ordinance is passed.

CITATION OF AUTHORITY:

In the Georgia Supreme Court case of W.M.M. Properties, Inc. v. Cobb County , 255 Ga. 436 (1986) - The Court rule that if a person has vested rights pursuant to a development plan duly approved by the zoning authority, then such approval gave the landowner the right to develop the property as zoned at the time of the approval. That right became vested when substantial expenditures were made in regards to the property and the development plan.

Meeks v. City of Buford , 275 Ga. 585 (2002) - The Court found that in order for a landowner to have "vested rights", he must have in good faith have made substantial change of position, made substantial expenditures or incurred a substantial obligation.

City of Duluth v. Riverbrooke Property, Inc. , 233 Ga. App. 46 (1998) - The developer had provided the homeowner's association a lake, clubhouse and amenities in reliance upon the approved development plan. The Court of Appeals ruled that if a development plan is approved and substantial expenditures are made, then it is immaterial that the subdivision was done in phases and that the developer can rely upon the vested rights and expenditures even for long term projects. Laws can not be made retroactive when a person has acquired vested rights in property.

North Georgia Mountain Crisis Network, Inc. v. City of Blueridge, 248 Ga. App. 450 (2001) - The purchase of land by itself does not confer vested right to a particular use upon the purchaser.

VII. CONCLUSION

When a stream buffer is extended via ordinance and that new law affects a landowner's property value, then that landowner is most likely in a for an uphill legal battle in an effort to gain fair compensation. However, like many things in life, sometimes the wrong is too little to fight over. Then again, sometimes, the landowner is forced to fight due to a complete ruining of a valuable land's fair market value.

About the author: John Breakfield is an attorney with Coleman, Chambers, Rogers & Williams, LLP, in Gainesville, Georgia. The law firm of Coleman, Chambers, Rogers & Williams, LLP regularly handles matters regarding Eminent Domain, DOT condemnation, Georgia Power Condemnation, taking of property by any government or agency, real estate litigation and advises its clients on various aspects of land development and real estate matters. The firm has handled cases in numerous counties including: Hall County (Gainesville), White County (Cleveland), Lumpkin County (Dahlonega), Gwinnett County (Lawrenceville), Dawson County (Dawsonville), Habersham County (Demorest, Cornelia), all of Northeast Georgia, and throughout the State of Georgia.

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