City of McDonough v. Tusk Partners

492 S.E.2d 206, 268 Ga. 693, 97 Fulton County D. Rep. 4000, 1997 Ga. LEXIS 729

• Court: Supreme Court of Georgia
• Decided: November 3, 1997
• Docket: S97A1175
• Status: Published

Opinions

Hunstein, Justice.

Tusk Partners, a Georgia .general partnership, filed an application with the City of McDonough to rezone 19.28 acres of land it contends is in the City of McDonough. Tusk first sought to have the land zoned from R-200 (single family residential) to C-3 (highway commercial); the city planning staff and an expert land use planner recommended the application be denied, but that the property be rezoned to R-100 (still residential but with smaller lot sizes thereby allowing higher density development than R-200). Tusk then filed a second application, seeking a divided rezoning with 6.29 acres as an O-I zone (office institutional) and 12.99 acres as a C-3 zone (highway commercial). After several public hearings, the City denied the application but voted to rezone the property to R-100, which would allow the property tó be developed as a subdivision. Tusk brought suit attacking the constitutionality of the R-100 zoning. The property is located at the corner of a small “collector” road and a major thoroughfare, Jonesboro Road, which has been proposed to be widened to four lanes. Across the street from the property is vacant land designated for commercial development. On the east side of that parcel are two acres of land zoned (pursuant to a court order) as C-l with a convenience store and gas station. Across the road from the store is land zoned as O-I. Land is zoned as commercial 4,000 feet west of the property. Property 2,000 feet east of the property was also rezoned commercial pursuant to court order.

The evidence heard by the trial court included: Tusk’s planning expert testified that the property would not be desirable for residential purposes because of the traffic on Jonesboro Road and testified that residential properties adjacent to Tusk’s property would not be adversely affected by zoning Tusk’s property commercial in that buffers would adequately shield the adjacent residential properties from customer traffic, tractor truck deliveries, and the light from the all-night security beacons that would be installed throughout the several planned parking lots. The planning expert noted there was a nearby residential development on Jonesboro Road with a buffer zone between the road and the homes. Tusk’s property has 983 feet of frontage on Jonesboro Road and is centrally located between the center of the City of McDonough and Interstate 75, with these two desirable destinations less than two miles away in either direction. The planning expert testified there would be “enormous pressure just to strip zone this entire road”; stressed that many of the other Jonesboro Road properties surrounding Tusk’s are already zoned commercial (the trial court noted most had been zoned commercial by court order); and testified that changing the zoning on Tusk’s property from residential to commercial would “relieve pressure” on other properties along Jonesboro Road to become commercial strip shopping areas. Tusk’s planning expert testified that it was “very important” that Jonesboro Road not become “one long strip of commercial all along the road” and that avoiding this result is “an important public objective” which the City’s plan promotes by concentrating commercial activity in “commercial nodes” at appropriate intersections; the category of commercial activity authorized at intersections between major and minor arterial roads includes convenience stores and gas stations. According to the road classifications introduced in evidence, Tusk’s property is located at the intersection of Jonesboro Road, a major arterial road, and Kelly Road, a collector road (smaller than a minor arterial); the next nearest road, Dailey Mill Road, is a minor arterial road and a convenience store-gas station is located at that intersection. Tusk’s amended site plans reflect 130,000 square feet in construction and 476 parking spaces along with a two-acre retention area to hold the rainwater formally absorbed by the property’s trees and unpaved soil.¹ Tusk’s planning expert identified Jonesboro Road-Dailey Mill Road intersection as an “emerging” commercial node. Tusk’s value expert testified that the property was worth only $86,760 as residential property, stating that per-acre value of the land would be half that of other residential property in the area due to the growing traffic on Jonesboro Road, the location diagonally across from the property of a popular convenience store, and the “growing knowledge” that Jonesboro Road is a “commercial opportunity corridor.” The owner of the residence across Kelly Road from Tusk’s property testified that he had lived in his home for 28 years but was selling it because the community had changed and it was no longer desirable for residential property. The broker who handled the sale of this neighboring property testified that he has listed six residential homes on Jonesboro Road that “have the potential for commercial” development.

Evidence on behalf of the City included testimony by the City’s planning expert that the property was in the midst of a developing residential area; that a domino effect would result if the property was zoned commercial; that traffic would increase; and that plenty of commercially zoned property already existed in the area. There was also testimony the property is worth $250,000 as zoned; that Tusk would earn a 30 percent gross profit selling it at this amount; and that Tusk has not attempted to market, use, or sell the property.

The trial court ruled that the current R-100 zoning was significantly detrimental to Tusk and was unsubstantially related to the public health, safety, morals, and welfare. Based on prior precedent, we will affirm the ruling of a trial court on the constitutionality of a zoning ordinance unless that ruling is “clearly erroneous.” Where a property owner adduces evidence that establishes a down turn in viability of a property under its current zoning and a decrease in land value if the property remains under its current zoning classification, a trial court does not clearly err by concluding the property owner has carried its burden of proving a significant detriment. DeKalb County v. Albritton Properties, 256 Ga. 103, 108 (1) (a) (344 SE2d 653) (1986); Barrett v. Hamby, 235 Ga. 262, 266 (219 SE2d 399) (1975). Where the evidence conflicts as to the impact of the use on the public health and welfare, the trial court does not clearly err by concluding the property owner has carried its burden of proving the zoning is unsubstantially related to the public health, safety and welfare. City of Atlanta v. McLennan, 240 Ga. 407, 409 (2) (240 SE2d 881) (1977). While the evidence adduced at trial in this case clearly would have authorized the court to reach the opposite conclusion, on appellate review this Court will not re-weigh the evidence before the trial court in order to support the opposite conclusion. Hence, because the trial court’s findings of fact are not clearly erroneous and no errors of law are presented, the judgment is affirmed.

Judgment affirmed.

All the Justices concur, except Fletcher, P. J., and Sears, J., who concur specially.

1 The original site plan reflected 155,000 square feet of commercial space plus 30,000 square feet of out-parcel buildings and 804 parking spaces, with no retention pond.