ANALYSIS: Cheshire Bridge Rezoning Proposal Likely Illegal

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(APN) ATLANTA — The rezoning proposals for Cheshire Bridge Road currently pending before the Zoning Review Board (ZRB)–which purport to take away the grandfather clause for existing businesses on Cheshire Bridge Road–are likely not legal and will subject the taxpayers of the City of Atlanta to costly litigation the City is unlikely to win, Atlanta Progressive News has learned.

APN has also reviewed extensive case law in order to reveal that the City of Atlanta previously tried to use a similar scheme of “amortization” to get rid of adult entertainment establishments in 1976, but that at least two 1976 ordinances were thrown out in federal court.

If there is such a thing as frivolous litigation, then what is currently before the ZRB–to be considered at an upcoming hearing on May 09, 2013–could be described as frivolous legislation.

As previously reported by Atlanta Progressive News, in 2005 the City passed a rezoning plan for two non-contiguous stretches of Cheshire Bridge Road, NC 4 and NC 5, that changed the permitted uses, as well as requirements related to parking and square footage, for those stretches.

However, existing businesses at the time that did not comply with these changes were grandfathered in as legally allowed to stay, indefinitely.

Now, Councilman Alex Wan (District 6) has proposed an unheard of change, in taking away the grandfathered-in status of so many businesses, that, if approved, would establish a dramatic precedent undermining property rights in the State of Georgia.
Section 1, Paragraph II of the Constitution of the State of Georgia states, “Protection to person and property is the paramount duty of government and shall be impartial and complete.”

The proposal, as recently amended by Councilman Wan and Neighborhood Planning Unit (NPU) F, would only affect businesses considered non-conforming uses: specifically, auto repair, tire, and car wash businesses; and adult entertainment businesses.
These businesses would be given four years to stay; they would then have to apply to the Board of Zoning Adjustments (BZA) for additional time to stay and would possibly be given a so-called amortization period, that is, a certain amount of time they could stay on Cheshire Bridge Road in order to purportedly recoup their investment.

The strategy essentially amounts to a back-door eminent domain without the City having to invoke eminent domain or satisfy its public use requirements, or pay the millions of dollars they would ordinarily be required to pay in order to take away someone’s property rights.

The proposed legislation–which, according to Wan, was crafted in conjunction with the Law Department of the City of Atlanta–cites two specific cases in support of its objectives.

“WHEREAS, Georgia law establishes that legal, nonconforming uses run with the land and
benefit subsequent purchasers (See Henry v. Cherokee County, 290 Ga.App 355 (2008)) but also recognizes the right of local governments to require cessation of legal, nonconforming uses over a reasonable period of time, said practice being referred to as “amortization”. (See B.B.C. Land & Dev., Inc. v. Butts County, 281 Ga. 472 (2007); Flippen Alliance for Community Empowerment v. Brannan, 267 Ga.App. (2004)),” the legislation states.

APN has reviewed B.B.C. Land & Dev., Inc. v. Butts County (2007) and Flippen Alliance for Community Empowerment v. Brannan (2004). Both cases appear to be inapposite to the present zoning proposal, and neither directly establish the practice of amortization, as referenced in the legislation.

B.B.C. Land & Dev., Inc. v. Butts County (2007) does state a “governing authority can require a nonconforming use to be terminated in a reasonable time,” but cites Flippen Alliance for Community Empowerment v. Brannan (2004) as the authority for the assertion.

Flippen Alliance for Community Empowerment v. Brannan (2004), in turn, cites Gifford-Hill & Co. v. Harrison (1972) as authority.

When one finally gets to Gifford-Hill & Co. v. Harrison (1972), the following language appears: “The owner of land, or one in contractual relationship with the owner, has a right to be issued authorization to use the land for the purpose for which it is zoned at the time he makes his application for such authorization; the governing authority can thereafter rezone the land to prohibit a use previously permitted, and by such rezoning the previous use thereby becomes a nonconforming use which under the rezoning can be required to terminate within a reasonable time.” (emphasis added)

“It suggests such a thing may be lawful under certain circumstances. Under certain circumstances, Georgia talks about at least in theory the possibility that that could occur,” Alan Begner, of Begner & Begner, an attorney for numerous adult entertainment establishments impacted by the rezoning proposal, told APN.

“Of course, the State of Georgia has long established zoning laws to protect property owners’ use of their land, which creates a notion that lawful nonconforming uses are intended to last forever, and run with the land, unless abandoned for twelve months. This is long-time Georgia law,” Begner said.

“I have been aware of the moratorium concept for some years, because it’s been talked about in connection with adult uses for years, but never triggered,” Begner said.

“The notion that a lawful nonconforming use can have its permanent status taken away, has never been used in Georgia at all,” Begner said.

Another case referenced in Flippen Alliance for Community Empowerment v. Brannan (2004) is Purple Onion v. Jackson (1981).

Interestingly, Purple Onion was one of several strip clubs or adult cabarets that sued then-Mayor Maynard Jackson of the City of Atlanta, over an effort to get rid of adult entertainment establishments in the City of Atlanta some thirty-two years ago.

According to the ruling in Purple Onion, the City enacted legislation in 1976 entitled the Adult Entertainment Zoning Ordinance, which established an amortization period for certain adult entertainment businesses.

The federal district court in Purple Onion reviewed ZRB meeting minutes from 1976, noting, “Of further interest are the statements of an associate city attorney, who attended the meeting to represent the position of the Atlanta Law Department. He indicated that the use of the adult zoning ordinance was the ‘strongest vehicle towards elimination’ of adult businesses, and that the City was ‘hoping for complete eradication’ of adult businesses.”

The Court ruled against the ordinance, however, noting that the vagueness of certain definitions in the ordinance meant the prohibition on adult entertainment establishments amounted to a violation against free speech.

“The effect of the ordinance on public access to sexually-oriented entertainment and material would be (1) to immediately, and drastically, reduce public access in Atlanta to the sort of live, sexually-oriented entertainment presented by three of the plaintiffs; and (2) to gradually reduce the availability to the public in Atlanta of movies, books and paraphernalia characterized by emphasis on sex,” the Court ruled.

“Atlanta’s adult business licensing ordinance, which was passed about the same time as the instant adult business zoning ordinance, was challenged in a series of cases before the Honorable William C. O’Kelley of this Court. In an order dated April 29, 1980, Judge O’Kelley struck down most of the adult business licensing provisions on First Amendment grounds,” the Court wrote.

The 1976 ordinance was ruled unconstitutional even though the City had identified certain areas of the City where adult entertainment businesses would be allowed.

The current proposal “has the slightest of chances of being upheld by Supreme Court of Georgia,” Begner told APN.
“The only people who benefit from this are developers, and owners of small homes who hope to sell them for big profits,” Begner said.

Begner tells APN he is representing Southern Nights video store, Galaxy, and Starship in this matter, and that he also represents the landowner for the Onyx nightclub.

“If I was any developer or landowner or business owner anywhere in this city, I would go for the City’s throat about this idea. If you can do it on Cheshire Bridge, you can do it anywhere. If you can single out places you don’t like and ruin ‘em without paying them, you could ruin anyone for political, religious, or racial reasons,” Begner said.

“It is a bold and chilling idea – it’s never been done and I don’t think it can be done,” Begner said. “I am geared up for a battle.”

Another attorney, Alex Rowland of Rowland Legal, blasted the City’s proposal on his website and in an interview with APN. Rowland describes on his website why the cases cited by the City of Atlanta in support of their legal argument are, in fact, irrelevant to the facts at hand.

“I think they’re being intellectually dishonest,” Rowland told APN.

Rowland argues the City of Atlanta will eventually have to pay tens of millions of dollars to compensate the strip clubs after forcing them to relocate.

However, the businesses could potentially seek injunctive relief before being forced to move.
“I think they know they’re gonna have to pay, but either they cut a deal or they don’t care – it’s worth that amount of money to move those strip clubs out of town,” Rowland said.

Meanwhile, numerous efforts are mobilizing in opposition to Wan’s proposal.

A new grassroots group, Queer UP Atlanta, is calling for activists to attend the May 09 ZRB meeting in opposition to the ordinance.

Local business owner, Sung Kong, of Kong’s Auto Repair and Auto Glo Hand Car Wash, created an online petition on Change.org, that currently has 549 supporters.

Another local business owner, Patrick O’Leary of Auto Repairs by Patrick & Co., has been promoting the petition as well in his shop.

Kong told APN in an interview last week that he attended the NPU F meeting where the recent amendments to the zoning proposal were approved, and that an NPU leader stated that the only reason the automobile-related business were included was so that it would not look like they were singling out adult entertainment businesses.

(END/2013)

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