This post was written by Tyler Doan, Esq.
The Cook (Cook) Community purchased approximately 32.6 acres of land in Hall County to build about 200 attached townhouses. At the time of purchase, the land was classified as agricultural housing. Cook attempted to have the zoning maps changed and the property re-arranged according to a residential development plan. Cook argued that refusing his request would constitute an “unconstitutional restriction on the use of the property” and “remove or damage [its] property” without fair and just compensation in violation of state and federal constitutions. In January 2022, the local planning commission voted to rezon the property with a few conditions. The Hall County Board of Commissioners approved the rezoning under, as Cook stated “a few new and amended conditions which were a necessary squeeze [Cook] to donate land for property improvement or indirectly address traffic problems caused by proposed redevelopment of the property such as installing turn lanes and imposing a much lower unit density per hectare than surrounding developments. Cook filed suit in high court against the County and its Commissioners in their respective capacities seeking declarative relief, indemnity, and mandamus and requesting that the zoning regulations, as applied to Cook, declare Void and property free from zoning restrictions. The county responded and moved to ignore Cook’s complaint, arguing that the zoning decision was judicial or quasi-judicial in nature and so Cook was asked to apply for a writ of certiorari rather than direct action in a high court to challenge the decision. The high court found that the zoning authority’s decision on rezoning the property was legislative and rejected the County’s motion to dismiss. The county is appealing the current case.
In confirming the supreme court, the Court of Appeal stated that there were two types of cases that the Georgia Supreme Court ruled. One type is a case involving a “constitutional attack on zoning regulations” in which the zoning authority acts in a legislative capacity when changing regulations. The second type involves a situation where “special permission is sought under the provisions stipulated in the regulations” thereby creating a quasi-judicial capacity to determine facts and apply the law.
To determine that the Regency acts in the legislature, the Court of Appeal held that the case involved a constitutional attack on the challenged requirement attached to the Regency’s approval of the application for rezoning. The court further described two cases previously decided in the Court of Appeal that provide examples of two types of challenges to zoning authority decisions as well as distinguished recent Georgia Supreme Court cases that may provide counterarguments against their decisions. The courts reasoned in their distinction and refusal to follow the Supreme Court that the decision did not explicitly override existing precedent that a constitutional challenge to zoning authority was a legislative action. Thus, “that this case is also controlled by existing precedent, and that under established law, the court was not wrong in rejecting the County’s motion to dismiss [Cook’s] complaints… since [Cook] not limited to reviewing the decision of the zoning authority with a warrant from certiorari.”
Hall County Community v Cook, 2023 WL 424612 (GA Application 6/29/2023)
