Village Centers, Inc. v. City of Atlanta

Jordan, Justice.

This is an appeal from a rezoning case which raises issues similar to those considered and decided in Barrett v. Hamby, 235 Ga. 262 (219 SE2d 399) (1975) and its progeny, Guhl v. M. E. M. Corp., 242 Ga. 354 (249 SE2d 42) (1978); Guhl v. Davis, 242 Ga. 356 (249 SE2d 43) (1978); Guhl v. Pinkard, 243 Ga. 129 (252 SE2d 612) (1979) .

The factual situation involved in this case began when the appellant property owners sought to have a tract of approximately nine (9) acres located on Roswell Road just south of the intersection of Roswell Road and Wieuca Road in the City of Atlanta, Georgia, rezoned from a low density residential classification (R-4) to a high density commercial classification (C-l) for the development of a shopping center. The City Council of Atlanta denied appellants’ petition for. rezoning. Appellants filed this action claiming that the existing classification was confiscatory and that as applied to appellants’ property the city’s zoning ordinance was unconstitutional. After a full evidentiary hearing, the trial court upheld the city’s decision.

In its order the trial court stated that "[t]he sole question to be determined by this court is the constitutionality of the City of Atlanta Ordinance as applied to plaintiffs property in the denial of the application for it to be rezoned to allow the construction of a shopping center complex . . .”

Appellants contend that the trial court has employed an incorrect standard of review, and we agree. "When the 'reasonableness’ of [a] zoning classification is questioned, it is a special kind of 'reasonableness’ — constitutional reasonableness — that must be decided. We do not ask whether another zoning classification might be more logically and economically'reasonable’ or desirable on all the facts than the one attacked, because that is not the question. We ask whether the [property owner] has carried the burden of showing that the zoning under attack is so detrimental to him, and so insubstantially related to the public health, safety, morality and welfare, as to amount to an unconstitutional 'taking,’ that is, an arbitrary confiscation of his property without compensation by the governing authority. Barrett v. Hamby, 235 Ga. 262, 265-266 (219 SE2d 399) (1975). The inquiries outlined in Guhl v. Holcomb Bridge Road Corp., 238 Ga. 322, 323-324 (232 SE2d 830) (1977) are relevant in determining constitutional reasonableness.” Guhl v. M. E. M. Corp., supra at 355.

Argued April 10, 1979 Decided June 20, 1979 Rehearing denied July 17, 1979. Freeman & Hawkins, Paul M. Hawkins, Douglas L. Cronkright, Howell Hollis, III, for appellants. Ferrin Y. Matthews, Thomas A. Bowman, for appellee.

The function of the trial court in a zoning appeal is to determine if the present zoning is constitutional, not to scrutinize any other proposed uses. In this case, the trial court evaluated the specific proposed use for the land rather than reviewing the constitutionality of the present zoning classification.

A review of the extensive record in this case produces no evidence which supports the use of the subject property as presently zoned. Rather, the evidence presented demands a finding that the present zoning amounts to an unconstitutional deprivation of the owners’ property.

The judgment of the trial court is reversed, and this case is remanded for the purpose of having the subject property rezoned in a constitutional manner by the proper authority.

Judgment reversed and remanded.

All the Justices concur, except Hall and Hill, JJ., who concur in part and dissent in part, and Undercofler, P. J., who dissents.