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Zoning Out
by Ron Davis

A small Georgia town hoping to retain its rural charm has thwarted efforts of a developer to build a shopping center on the town’s outskirts.

The town is Tyrone, located just southwest of Atlanta, and the developer, Tyrone, L.L.C., has options on some 75 acres of property there. The developer’s plans call for not only a shopping center, but also the relocation of Tyrone’s town hall from its current site in the historic downtown area.

But the property is zoned “agricultural-residential” under the land-use plan that the town’s council previously adopted to preserve Tyrone’s small-town atmosphere. And despite the developer’s pleas to change the zoning to allow construction of the shopping center, town council members would not be swayed.

The developer consequently sued, arguing that the refusal of town council to change the property’s zoning is unconstitutional under Georgia laws. And a Georgia court agreed with the developer. The court therefore ordered the town to rezone the property as commercial. Moreover, the court granted the developer certain variances from the zoning restrictions that accompany a commercial zoning designation.

Georgia law does in some cases prohibit local zoning restraints on privately owned property. But the courts of the state are limited in ruling on challenges to those restraints and cannot impose changes to local zoning laws.

Tyrone’s town council appealed the court’s ruling, maintaining that the court had exceeded its authority in redesignating the property as commercial.

The Georgia Supreme Court overruled the lower-court decision, explaining, “Courts have no power to zone or rezone property. Rather, the power to zone and rezone property is vested in the county and city governing authorities. A court’s role in zoning disputes is to determine whether the current zoning amounts to an unconstitutional taking, not which zoning classification should apply to a particular parcel of property. Here, the court exceeded its judicial power when it ordered the town to rezone the property to a certain designation…. Accordingly, we reverse the court’s order that required the town to rezone the property to a particular zoning designation.” (Town of Tyrone v. Tyrone, L.L.C., 565 S.E.2d 806 [Ga. 2002])

Decision: August 2002
Published: September 2002



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