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Preserving your right to sue

Recently, one of the lawyers in our Zoning and Land Use Team met with a new client that had been handling his own re-zoning applications and hearings. The new client relayed his frustration at having lost three recent re-zoning cases. In the most recent, he sought to re-zone a site from commercial to industrial to build a self-storage facility. The property was surrounded on four sides by the following: a major expressway, another self-storage facility, an industrial warehouse and a C-2 commercial tract.

At the hearing before the city council, he had told them that he was prepared to sue if he didn’t receive the re-zoning. He proceeded to justify his claim with good land use planning principles. His argument was spot on, from a land use perspective and the city council should have granted the re-zoning. But this client failed to grasp that the city council had not listened to his reasoning, they had zoned him out. Why? Perhaps because the city council knew that his threat to sue was an empty one. They could deny his re-zoning and, because no one had sufficiently preserved the right to challenge the constitutionality of their zoning decision, he would effectively be barred from a later lawsuit seeking to challenge the decision.

Timing is critical.

A party desiring to challenge the constitutionality of a re-zoning decision must follow certain procedural requirements. This statement holds true for both the property owner whose application to re-zone his or her property has been denied as well as for the neighboring property owner who is dissatisfied when the applicants’ re-zoning application is approved. In order to preserve the right to challenge the constitutionality of any zoning decision, the party challenging the decision must have raised the constitutional objection before the city council/county commission. Under Georgia law, a party cannot raise a constitutional objection to a zoning classification for the first time in court DeKalb County v. Post Properties, Inc, 263 S.E. 2d 905 (1980). The purpose of this requirement is to notify the city council/county commission of the potential constitutional claim and to allow them an opportunity to make a determination and avoid any constitutional defects. While this can be done at the hearing, we recommend, in most zones, that the notice be given in writing when filing the rezoning application.

Content of notice is also important.

While the timing of the notice is critical, the adequacy of the notice required to perfect the right to challenge is often an issue. Georgia courts have required that the city council/county commission must be given “fair notice that a constitutional challenge is being raised.” DeKalb County v. Bembry, 314 S.E. 2d 900 (1984). While Georgia courts historically have required that the notice given to the city council/county commission be fairly specific, in the more recent case of Ashkouti v. City of Suwanee, 516 S.E. 2d 785 (1999), the notice requirements appeared less stringent.

Even if the law surrounding the specific contents of a constitutional objection seems to be in a state of transition, our recommendation is to submit written constitutional objections to the city council/county commission that are carefully worded and reasonably thorough. Doing so will help preserve your ability to obtain the zoning you desire if your application is denied. By preserving your ability to litigate these issues, you will increase the likelihood of the government listening very carefully to your zoning request.

For more information, contact one of our zoning attorneys.