March 21, 2012
By HunterMaclean Attorneys, published on March 21, 2012, in Business in Savannah.
The City of Savannah recently felt how deeply and personally a land use and real estate development dispute can impact the community.
When citizens objected to the construction of a new mausoleum on privately-owned Forest Lawn Cemetery — a neighbor of historic, city-owned Bonaventure Cemetery — the City of Savannah confronted a complex issue. Local citizens criticized the proposed removal of century-old trees that add to the ambiance at the Bonaventure Cemetery entrance and called for a stop to the planned development of the new mausoleum.
The strong public response highlights the importance of proper zoning and land development legislation. Consistently ranked as one of the top civil disputes, land use and real estate development conflicts arise with regular frequency across the nation and generally include multiple parties, properties, and interests. The varied personalities and interests involved often further exacerbate an already emotionally charged and potentially costly conflict. Many such disputes are the result of legislative policy decisions about development proposals for residential, commercial, or industrial properties; the adoption or amendment of comprehensive plans, zoning, or critical areas of regulation; annexation; and public infrastructure projects.
To control the vast scope of land use and the development of real estate, local governments issue zoning regulations. These regulations allow local cities and counties to set up their own systems of governing land use.
Established in the early 20th century, zoning is a mechanism to protect, improve, and regulate all aspects of site development, in addition to preserving historic neighborhoods, structures, and natural resources. While local governments create zoning ordinances, which include specific land-use standards for each district, the state and the federal governments can impose procedures that govern the exercise of zoning power.
Zoning divides a municipality into residential, commercial, and industrial districts or zones. Within these districts, each has its own restrictions and land-use and development regulations, including specifications such as the types of buildings allowed, location of utility lines, restrictions on accessory buildings, building setbacks from the streets, and additional boundaries that include size, height, number of rooms, floor space, or minimum cost of buildings. Regulations may also restrict areas to single-family homes or multi-family homes or townhomes.
In historic districts or areas of cultural significance, zoning regulations are generally exact in the details and require that original features be preserved, in addition to special permitting. In theory, zoning ordinances are meant to work in accordance with a comprehensive plan and support the good of the community as a whole. However, not all zoning regulations are deemed reasonable. Since zoning regulations restrict the rights of property owners, they are often challenged in court.
As a rule, courts have upheld zoning regulations if they can be defined as reasonable and bear a substantial relation to the health, safety, morality, and general welfare of the general public. However, these factors are subjective, which leaves room for controversy and can lead to subsequent litigation.
If a landowner finds a zoning ordinance inappropriate, he or she has the right to file an appeal. In this case, the presumption that the governmental zoning decision is valid can be overcome only if the plaintiff can show clear and convincing evidence that the zoning classification is a significant detriment and is insubstantially related to the health, safety, morality and welfare of the general public. Only after both of these showings are made is a governing authority required to come forward with evidence to the contrary that would justify the zoning ordinance as reasonably related to the public interest.
A popular method of resolving land-use disputes outside of litigation is through mediation with an agreed-upon neutral third party to negotiate the terms of a mutually beneficial resolution. The use of a mediator increases both the efficiency of the settlement negotiation process, improves the chances of achieving settlement success, and is less costly to the parties involved. This is especially true when attorneys representing the parties involved can consolidate settlement discussions into a few concentrated sessions, versus litigation that could take months or even years.
However, while there are many benefits to using mediation in lieu of litigation, the procedural requirements of land-use law can potentially act as a barrier to meditation. In many instances, state statutes require open public processes in land use permitting and appeals, which counteract the expectation that discussion between parties during mediation will be confidential. In addition, state statutes also impose specific time frames for decision making that may also inhibit mediation discussions.
Regardless of the method used to negotiate a land use dispute, a qualified attorney familiar with the complexity of zoning and land law is a must. Furthermore, citizens should voice their opinions on zoning issues before a crisis arises, or risk having no say at all.
