DeKalb County v. Chamblee Dunwoody Hotel Partnership

281 S.E.2d 525, 248 Ga. 186, 1981 Ga. LEXIS 909
CourtSupreme Court of Georgia
DecidedSeptember 8, 1981
Docket37598; 37599
StatusPublished
Cited by23 cases

This text of 281 S.E.2d 525 (DeKalb County v. Chamblee Dunwoody Hotel Partnership) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeKalb County v. Chamblee Dunwoody Hotel Partnership, 281 S.E.2d 525, 248 Ga. 186, 1981 Ga. LEXIS 909 (Ga. 1981).

Opinion

Hill, Presiding Justice.

Chamblee Dun woody Hotel Partnership (hereinafter the “Hotel Partnership”) owns two tracts of land which lie south of 1-285 [187]*187and west of Chamblee-Dunwoody Road in DeKalb County. The smaller tract (5.3937 acres) was zoned commercial (O-I) in November of 1970; the larger tract (8.4209 acres) has been zoned single family residential (R-100) since the adoption of the DeKalb County Zoning Ordinance in 1956. In late 1979 the Hotel Partnership applied to the DeKalb County Planning Department to change the zoning on the larger tract from R-100 to O-I. On February 26, 1980, the Board of Commissioners of DeKalb County denied the application for rezoning of the larger tract as O-I, and, on motion of one of the Commissioners, rezoned the larger tract to single family attached residential, five units per acre (RA-5) (condominiums).

On March 4, 1980, the Hotel Partnership filed suit in DeKalb County Superior Court challenging the constitutionality of the RA-5 zoning and any zoning classification other than O-I or C-2 as applied to the larger tract. The trial court ruled in the Hotel Partnership’s favor, declaring that any residential zoning of the property would be unconstitutional and ordering the county to rezone the property in a constitutional manner. The county appeals.

The evidence shows that the subject property lies south of 1-285 and west of Chamblee-Dunwoody Road. South of 1-285, Chamblee-Dunwoody is a two lane road, although the “bridge” over 1-285 has recently been widened from two lanes to five lanes. DeKalb County officials testified, however, that even given the widened bridge, DeKalb County has no plans to widen Chamblee-Dunwoody Road south of 1-285. It is unclear whether the federal government or DeKalb County has jurisdiction over the portion of Chamblee-Dunwoody Road fronting the subject property, although it was established that the federal government controls the “through access” within some unspecified number of feet of major thoroughfares, e.g., 1-285. There was however no evidence that the portion of Chamblee-Dunwoody Road south of 1-285 is scheduled for widening from its current two lanes.

The 5.3937 acre tract owned by the Hotel Partnership and a smaller tract lie north of the subject property and alongside an exit ramp off 1-285. The 5.3937 acre tract is zoned O-I and is undeveloped. The other tract is adjacent to the 1-285 exit ramp, is zoned C-I and is occupied by a Fina Station. Another small tract that lies directly across Chamblee-Dunwoody Road and alongside a frontage (access) road parallel to 1-285 is zoned C-l and is occupied by a Standard Station. Other commercial establishments are adjacent to the Standard Station along the frontage road. Other than that property, all of the property in the immediate area (south of 1-285 and east and west of Chamblee-Dunwoody Road) is zoned R-100, and with two exceptions it is all used for single family homes ranging in value from [188]*188$70,000 to $170,000.1 One exception is a day-care center which is a nonconforming use located on a 2 1/2 acre tract zoned R-100 that lies directly across Chamblee-Dunwoody Road from the subject property; the other exception is a tract on the southwest corner of East Nancy Creek Drive and Chamblee-Dunwoody Road which is used for an unspecified office institutional use.

The trial court found that the subject property has a value of less than $300,000 as presently rezoned, but that if rezoned to O-I its value would exceed $1,000,000 and to certain users would be $1,400,000 to $1,800,000. The trial court also found that “the property currently has no economic return to the owners since the only improvements on the property consist of two dilapidated single family dwellings....” And in an apparent reference to the day-care center, the trial court found that “use of this property for Office and Institutional use is consistent with the use across from the subject property across Chamblee-Dunwoody Road.”

Witnesses for the county testified that: DeKalb County’s 20-year projected development plan does not provide for widening of Chamblee-Dunwoody Road south of 1-285 through the residential areas. Children who live east of Chamblee-Dunwoody Road must cross it to reach Nancy Creek Elementary School. An O-I use would have a greater adverse impact on traffic than will the RA-5 use; the traffic impact of an O-I use would be more than the current road system could handle. A condominium or apartment development could be built using the existing topography, while an office development would require considerable grading and leveling. The property would be worth $60,000/acre if zoned O-I and is worth $35,000/acre zoned RA-5. The condominium market in the area is strong and condominiums built on the subject property would probably sell for $75,000 to $125,000, more likely the upper limit. A commercial development or office use on the subject property (and thus with very little buffer between the property and the nearest homes) would cause an immediate diminution in value of 10% of the value of the $80,000 homes located nearest to the subject property, and would lead to deterioration of the neighborhood over a period of time.

Witnesses for the Hotel Partnership testified that: DeKalb County designates Chamblee-Dunwoody Road as a major thoroughfare. The 1-285 and Chamblee-Dunwoody interchange has the third highest interstate exchange traffic count in Georgia. On the [189]*189northwest corner, a shopping center backs up to office and institutional use. A 400-room hotel is located on the northeast corner. One of the partners in the Hotel Partnership, having been qualified as an expert, testified that although the property would be worth $20,000 per acre if it were marketable for condominium use, in his opinion it was not marketable for condominium use.2 Another expert witness called by the Hotel Partnership, however, testified that the property would be worth $30,000 per acre if utilized for condominiums. When asked “[I]s this 8.4 acre [tract] suitable for condominium use?”, he responded, “There are many measures of suitability physically if you put condominiums on this property. It would be a great underuse of the property. There is no reason to have the condominiums upon the site for the interstate.” He further testified that the property would be worth $126,324 per acre if zoned O-I and $165,528 per acre if zoned commercial.

1. After reviewing the evidence in this case, we find that the trial court erred in declaring the RA-5 zoning of the subject property unconstitutional. First we accept the position taken by the county governing authority that 1-285 is a reasonable dividing line for zoning consideration purposes. Hence, although the impact of 1-285 upon the subject property necessarily must be taken into account, as must traffic on Chamblee-Dunwoody Road south of 1-285, the county may use 1-285 as a starting point for zoning purposes and hence land uses north of1-285 typical of those frequently found adjacent to interstate highways need not be considered here.

Secondly, as we have said many times, “It is not sufficient to show that a more profitable use could be made of the property.” Avera v. City of Brunswick, 242 Ga. 73, 75 (247 SE2d 868) (1978); Guhl v. Par-3 Golf Club, Inc., 238 Ga. 43 (1) (231 SE2d 55) (1976); Smisson Gardens, Inc. v. Doles, 244 Ga. 468, 470 (260 SE2d 865) (1979); Westbrook v. Board of Adjustment, 245 Ga. 15, 16-17 (262 SE2d 785) (1980); Koppar Corp. v. Griswell, 246 Ga. 539 (272 SE2d 272) (1980).

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281 S.E.2d 525, 248 Ga. 186, 1981 Ga. LEXIS 909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dekalb-county-v-chamblee-dunwoody-hotel-partnership-ga-1981.