IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA DELTA CASCADE PARTNERS TI PRIME, Plaintiff, CIVIL ACTION FILE Vv. : t NUMBER: 2004CV90644 FULTON COUNTY, GEORGIA : and KAREN C. HANDEL, ROBB PITTS, LYNNE RILEY, TOM LOWE, EMMA I. DARNELL, NANCY A. BOXILL and WILLIAM EDWARDS, in their official capacity as members of the Fulton County Board of Commissioners, Defendants. : E IRDE} ‘The above-styled case having come before this Court, and the Court having conducted an evidentiary hearing on May 19, 2005, and upon consideration of the evidence and arguments submitted by the parties, the Court rules as follows: CONSTITUTIONAL ISSUE In a rezoning action, the only question is the constitutionality of the existing zoning on the property. The Court does not pass upon any proposed use of the property. Therefore, the fact that the current proposed use of the ATLOUIT9S305008oN property is for the development of a Wal-Mart, hag no bearing, either way, on the constitutional issue now before the Court. When challenging the existing zoning of specific property, the property owner has the burden of proving by clear and convincing evidence that (1) the existing zoning presents a significant detriment to the owner and (the existing zoning is not substantially related to the publi¢ health, safety, morality, and welfare. Even if the property may have some use as zoned, there can still be “substantial detriment” to the owner. Barrett v, Hamby, 235 Ga. 262 (1975) (emphasis added). A trial court is authorized to conclude that a property owner has suffered a significant detriment if it finds that the property, as zoned, is worth less than similarly zoned property because it is completely unfeasible to develop it under the existing zoning classification. Candler & Associates v. City of Roswell, 258 Ga. 621, 622, 373 S.E.2d 19, 20 (1988). If the property owner meets its burden, then the zoning authority must introduce evidence showing the existing zoning is reasonably related to the public health, safety and welfare. If the zoning authority justifies its zoning as reasonably related to the public interest, the trial court must weigh the public benefit of the existing zoning against the detriment to the property owner, When the validity of the legislative classification for zoning ATUGIIT 530501purposes is fairly debatable, the legislative judgment must be allowed to control. City of Atlanta v. Tap Associates, 273 Ga. 681, 683, 544 S.B. 2d 433, 436 (2001). FINDINGS OF FACT 1. The property that is the subject of this lawsuit consists of approximately 42.98 acres with frontage on the east side of Fairbum Read and the west side of Research Center Atlanta Drive, as more particularly described in the legal description attached as Exhibit A to Plaintiff's Complaint (hereinafter the “Subject Property”). 2, ‘The Subject Property at all times relevant to this proceeding has been owned by Plaintiff, Delta Cascade Partners III Prime, a Georgia limited partnership (hereinafter “Delta Cascade”). Mr. Douglas L. Crawford has served as the General Partner of Delta Cascade at all times pertinent hereto. . 3. In 1986, Plaintiff filed an application with the County requesting that the Subject Property be rezoned from a residential zoning to. an M-1 Conditional zoning classification for industrial and accessory use at a total density of 230,000 square feet. Said request was approved by the County. “3. ATLDU 195305501of, 4 Following the 1986 rezoning, Plaintiff engaged in an aggressive marketing effort to sell the Subject Property for any use allowed under the M-1 Conditional zoning classification, Despite persistent marketing efforts by Plaintiff there was only one expression of interest to purchase a portion of the Subject Property for industrial use during the preceding nineteen years. The single expression of interest never ripened into either a purchase offer or @ purchase contract. 3. A large tract of land located contiguous te the Subject Property on the east side of Research Center Atlanta Drive has alse been zoned M-I at all relevant times hereto. However, by the late 1980's, a proposed warehouse project on the contiguous property failed as a result of poor rentals, and the property was taken over by the lender. Subsequently, the majority of the contiguous site was sold to Home Depot which has constructed a large retail commercial facility on the contiguous site under the M-1 zoning. The County has subsequently acknowledged that large retail facilities are an allowed use under the M-1 zoning classification. ATUBUI198302%1rN 6. Plaintiff filed its initial rezoning application in 2003 requesting that ‘the Subject Property be rezoned from M-1 Conditional to C-1 Conditional, for the purpose of constructing a 230,000 square foot retail facility. In connection with that application, Plaintiff submitted a detailed traffic analysis prepared by Wolverton & Associates, a traffic consulting and engineering company with significant experience involving large retail facilities. Subsequently, the Fulton County Board of Commissioners requested that a second traffic analysis be performed on the County's behalf by Grice and Associates, also an experienced traffic consultant. 7. Both traffic analyses by the two independent consulting firms were reviewed by the Fulton County Department of Public Works, Ina memorandum dated October 16, 2003, the Director of the Fulton County Public Works Department summarized the two studies as being generally consistent both in methodology and with respect to the proposed recommended traffic improvements that would mitigate any adverse impact of a large retail facility on the surrounding road system. The Director concluded that the proposed retail facility, if coupled with the traffic improvements recommended by the traffic consultants, would actually “5s TUN 9sI03501prevent a worsening of the level of service of the surrounding roadway system that would otherwise occur regardless of whether the proposed retail facility were constructed on the Subject Property, or not. 8. Plaintiff withdrew its 2003 rezoning application prior to action by the Fulton County Board of Commissioners and refiled its request to rezone the Subject Property to the C-1 Conditional classification in 2004. However, the 2004 request was for a smaller retail facility consisting of approximately 182,000 square feet. 9 Both Plaintiff's 2003. and 2004 rezoning applications were reviewed by the Fulton County Department, which is charged with the responsibility under the Fulton County Zoning Resolution and the Georgia Zoning, Procedures Act, 0.C.G.A. § 36-67-1, et. seq. (sometimes referred to as the “Steinberg Act”) to make a specific recommendation of approval or denial to the Fulton County Board of Commissioners. Specifically, the Fulton County Department is required to analyze each application in the context of six specific issues identified by the General Assembly which address the public health, safety and welfare issues pertaining to the existing zoning and the proposed zoning. The staff planner assigned to Plaintiff's applications -6- ATLOVI195309%1recommended approval of both applications. and that recommendation was reviewed and approved by both the Deputy Director and Director of the Fulton County Department. 10, Specifically, the Fulton County Department reached the following conclusions with respect to Plaintiff’ s rezoning applications: 1. Suitability of Use, That the subject Property was suitable for the proposed retail development considering its location and proximity to similar uses and zoning classifications and that the proposed retail development was appropriate for the area. 2. Impact Upon Adjacent or Nearby Properties, That the proposed development would not have an adverse effect on the use or usability of adjacent and nearby properties if developed in accordance with the recommended conditions. 3. [mpact streets, Trans ‘ion Facilitic Itilities or Schools, ‘That the proposed development would have some impact on public services and facilities. However, the staff concluded that the impact ATLOWLIss05moy on the surrounding transportation system would be mitigated by compliance with the recommended conditions. 4. Conformity With the Policies and Intent of the Land Use Plan. ‘That the proposed development was consistent with the policies and intent of the Comprehensive Plan, provided Plaintiff complies with the recommended conditions. 5, | Whether Changing Conditions Impact the Proposal, That the existing zonings, current commercial development trends in the area and adopted land use policies supported the application for retail commercial development of the Subject Property. lL. : Despite the foregoing, on or about August 4, 2004, Defendants denied Plaintiff's rezoning application. Plaintiff subsequently filed this lawsuit within the time period required by law. A. EVIDENCE AS TO SIGNIFICANT DETRIMENT 12, The Subject Property has a number of ynusual and significant development constraints: it is bisected by two creeks (South Utoy Creek and North Utoy Creek); it has approximately 26 acres of flood plain within the 43 acre tract; and it is bisected by a large transmission power line “a. ATLDIL 9530501mo approximately 300 feet in width which runs through the entirety of the ‘Subject Property. 13. Plaintiff presented the testimony of Mark Woolridge, a qualified civil engineer, concerning site development costs. Mr. Woolridge testified, that as a result of the foregoing development constraints, the costs to rough grade the Subject Property would be approximately 2.5 million dollars. 14. Plaintiff also presented the testimony of Danny White, an experienced real estate appraiser, as to the value of the Subject Property compared to the value of other property with a similar zoning. Mr. White testified that industrial sites in the general vicinity of the Subject Property had a market value ranging from $55,000 to $85,000 per acre, assuming that the property was already rough graded. Mr. White concluded that the Subject Property, if graded, would have a market value of approximately $75,000 per acre. However, in view of the undisputed evidence that it would cost approximately 2.5 million dollars to rough grade the Subject Property, Mr. ‘White concluded that the Subject Property had no value as zoned since the grading costs would exceed the market value of the graded site by approximately |.2 million dollars. ATLON/ 19530300115. Mr. White also testified that the only type of development that could absorb the costs associated with the development constraints and yield a reasonable economic use of the land was large retail development. He ‘explained that any other type of development, such as residential use, office use or neighborhood retail use, would not achieve a sufficient market value that could absorb the costs associated with the development constraints. B, RELATIONSHIP OF THE EXISTING ZONING TO THE PUBLIC HEALTH, SAFETY AND WELFARE 16. ‘The existing zoning, of the Subject Property is M-| Conditional end allows industrial and accessory uses at a density not to exceed 230,000 square feet. The Fulton County Zoning Resolution provides that the M-1 zoning district allows property to be utilized for “any use not specifically designated as prohibited or allowed with approval of a use permit". FCZR § 10.2-2. Specifically allowed uses include manufacturing, processing, warehousing, distribution, research, office and similar uses. 17, Accordingly, any development pursuant to the existing M-1 Conditional zoning will generate the same, if not more significant, concerns with respect to traffic impact, encroachment into existing flood plain areas -10- ATIOUIISSNOSHEand concems with respect to the quality of the water in the two existing creeks as the proposed C-1 Conditional zoning, 18. As to traffic, the undisputed evidence establishes that development of the Subject Property for industrial use under the existing M-1 Conditional zoning would cause a significant amount of truck traffic to be introduced onto a roadway system that was not designed to carry such traffic. The evidence further establishes that the existing zoning is devoid of any conditions that would require the developer to fund any road improvements to mitigate the impact of the additional truck traffic. 19, In contrast, the proposed C-1 Conditional zoning, if approved by the County, would result in additional vehicular traffic, rather than primarily additional truck traffic, Additionally, the proposed C-1 Conditional zoning, would require the developer to fund in excess of 1.6 million dollars of road improvements to mitigate the impact of the additional traffic. Indeed, the Fulton County Department of Public Works concluded that the recommended road improvements would actually prevent a reduction in the level of service in the area that would otherwise occur regardless of whether or not a large retail facility were constructed. le ATLOUIISS305"1community. Moreover, she concluded that the proposed.rezoning would promote such concems in that it would result in improved traffic conditions in the area and provide additional land use compatible with the existing land uses in the area. 23. Surprisingly, Steve Cover, the Director of the Fulton County Department, agreed with Plaintiff's expert and testified on cross- examination that in his professional opinion a continuation of the existing M-1 Conditional zoning was not necessary to promote the public health, safety and welfare. 24. Finally, the Fulton County Department also concluded that the proposed C-1 Conditional zoning was consistent with the policies set forth in the Fulton County Comprehensive Plan, Board Policy and the surrounding land use patterns in the vicinity. 25. Based upon the foregoing evidence, the Court finds that Plaintiff established by clear and convincing evidence that (1) the Subject Property cannot be economically developed under the existing M-1 Conditional zoning and (2) that the existing M-1 Conditional zoning is insubstantially -13- ATLOINI8S.0;001related to the public health, safety, morality and welfare. Moreover, the County did not present any credible evidence that the existing zoning was reasonably related to the public interest. NCLUSI FLAW 1. Resolution of the issues presented to this Court requires a balance of the Plaintiff's right to the unfettered use of its property against the public’s health, safety, morality and general welfare. Guhl v. Holeomb Bridge Rosd Corp,, 238 Ga. 322, 232 $.B.2d 830.(1977). If the existing zoning classification results in little or no public benefit or gsin, but inflicts serious injury of loss on the Plaintiff, then the existing classification is confiscatory and unconstitutional, Id, 2. Plaintiff has also requested this Court to grant judgment declasing that the existing M-1 Conditional zoning allows retail commercial use-as a permitted use, However, the Court has determined that this issue is not currently ripe since it has not been addressed by the Fulton County Board of Zoning Appeals. 214. ATLOW9s305%1Accordingly, the Court hereby rules as follows: (a) That the Fulton County Zoning Resolution, to the extent that it classifies the Subject Property as M-1 Conditional, is unconstitutional and null and void on the grounds that said classification is arbitrary and unreasonable, confiscatory and constitutes a taking of the Plaintiff's property without just compensation in violation of Art. 1, Sec. 1, Para. 1 and Art. 1, Sec. 3, Para. 1 of the Georgia Constitution (1983) and the Fifth and Fourteenth Amendments to the United States Constitution; (b) That the Fulton County Board of Commissioners is hereby directed to rezone the Subject Property to a constitutional classification within sixty (60) days from the date of entry of this Order, taking into account the Findings of Fact and Conclusions of Law set forth herein with respect to the appropriate development for the Subject Property; and (c) That this Court shail retain jurisdiction to ensure that the County complies with the terms and conditions set forth herein. In the event the County fails to comply with the terms of this Order, Plaintiff may request additional relief from this Court, including a request that the Subject Property be relieved of all zoning restrictions. -15- ATLUTIGS303560oy (CERTIFICATE OF SERVICE, hereby certify that I have this day mailed (through the Fulton County Mail System) a ‘copy of the foregoing Order to the following, to wit: Valerio A. Ross, Esq. Office of the County Attomey 141 Pryor Street SW Suite 4038 Atlanta, GA. 30303 Peter M. Degnan, Esq. ‘Alston & Bird, LLP ‘One Atlantic Center 1201 West Peachtree Street Atlanta, GA 30309-3424 This (A aay of Onsguot- 2005. Chee Started ‘T_JACKSON BEDFORD, JR. Judge, Fulton County Superiar Court