APP - CONSTITUTIONAL OBJECTIONS

"The Application contains boilerplate constitutional objections to the current zoning designation of the Subject Property that are basically identical to the objections routinely submitted with countless zoning application submitted across Georgia.  The Application cloaks itself with "planning-speak" in an effort to paint a prettier picture but at the end of the day is the equivalent of putting lipstick on a pig."

Banks Family
Constitutional Objections

Under Georgia law the current zoning of the Subject Property is presumed valid.  Gradous v. Board of Commissioners of Richmond County, 256 Ga. 469 (1986).  This presumption of validity may only be overcome by clear and convincing evidence of a significant detriment to the landowner and insubstantial relationship to the public health, safety, morality, or general welfare.  Gwinnett County v. Davis 268 Ga. 653 (1997).  The Georgia appellate courts in recent years have been deferential to zoning decision of local governments.  The courts recognize that zoning is legislative in nature.  Gradious, supra.  Local elected officials accordingly are given great discretion in determining whether rezoning property for a use such as a landfill is consistent with the public interest and reflective of the support or opposition of citizens in the community.  Further, even if the local government decides to rezone property, it is not required to rezone the property to the zoning classification requested by the landowner.  Otherwise, numerous landowners would constantly request rezoning to more intense zoning classifications that generally increase property values. The letter below was part of the Applicant's Rezoning Application.  It acts as a threat to our civil authority's right to excercise their zoning powers and nothing more.
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Dear Commissioners:

Charles Merritt and I represent JCLL Partners, LP. Jefferson Lamar Banks and JCLL Partners, L.P. (hereinafter "Applicants") have submitted an application to rezone the Subject Property from AR (agricultural and residential) to 1-2 (heavy industrial) (the "Application") Georgia courts have long held that an applicant for rezoning must present any constitutional objections to the local government during the local zoning review process. Any applicant who fails to do so is prohibited from raising these objections in a subsequent appeal of the local zoning decision. Therefore, to comply with this legal requirement, JCLL respectfully submits the following constitutional objections:

1. The zoning ordinance of Morgan County, Georgia (the "Zoning Ordinance"), lacks adequate standards for the Morgan County Board of Commissioners (the "Commission") to exercise its power to zone and rezone, particularly with regard to applications for the 1-2 zoning category. In essence, the standards are not sufficient to contain the discretion of the Commission and to provide the Courts with a reasonable basis for judicial review_ Because the stated standards (individually and collectively) are too vague and uncertain to provide reasonable guidance to the Commission, the Zoning Ordinance violates the Fifth and Fourteenth Amendments ofthe Constitution of the United States in matters of zoning. The Zoning Ordinance also violates Article I, Section III, Paragraph 1; and Article I, Section I, Paragraphs 1 and 2 of the Constitution of the State of Georgia, 1983.

 2. The Commission is granted the power to zone pursuant to Article IX, Section II, Paragraph 4 of the Constitution of the State of Georgia, 1983. It is a power  which must be fairly exercised. Based on this element of fairness, any interpretation of the Zoning Ordinance that is used to justify denial of the Application or the approval of any lesser relief than that requested in the Application would violate Article IX, Section II, Paragraph 4 of the Constitution of the State of Georgia, 1983.

 3. The denial of the Application would be inconsistent with the land use policies set forth in the Morgan County Comprehensive Plan. Therefore, any such denial would constitute an arbitrary and capricious act and, therefore, be contrary to the best interest of the health and welfare of the citizens of Morgan County, Georgia. Therefore, such denial would constitute a violation of Article I, Section I, Paragraph 1 of the Constitution of the State of Georgia, 1983; Article I, Section III, Paragraph 1 of the Constitution of the State of Georgia, 1983; and Article I, Section II, Paragraph 3 of the Constitution of the State of Georgia, 1983, together with the due process clause and equal protection clauses of the Fifth and Fourteenth Amendments to the Constitution of the United States of America.

4. The existing AR zoning classification, as well as any intervening classification between the existing zoning classification and the relief requested in the Application, is a violation of Art. I., Sec. I., Par. I. of the Georgia Constitution (1983)  because said classifications constitute an arbitrary, capricious and unreasonable use of the zoning power as it bears no substantial relation to the public health, safety, morality, or general welfare, and hence constitutes a deprjvation of property without due process of law. Furthermore, while the existing zoning classification imposes a significant private detriment to the Subject Property owners, it conveys insubstantial benefit to the public, and is therefore confiscatory and void. The action similarly violates the Fourteenth Amendment, Section 1, of the United States Constitution, and the Fifth Amendment of the United States Constitution.

5. The existing AR zoning classification, as well as any intervening classification between the existing classification and the relief requested in the Application, is unconstitutional because it renders the Subject Property unusable and destroys its marketability. Consequently, such zoning constitutes a taking of private property without just and adequate compensation and without due process of law in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and Art. I, Sec. I, Par. I and Art. I, Sec. III, Par. I (a), of the Georgia Constitution (1983).

                                                                                                    ALSTON & BIRD LLP