11th Circuit Implies Five Minute Time Limitation Inadequate Due Process

The 11th Circuit Court of U.S. Appeals recently reversed a grant of a motion to dismiss and remanded Kupke v. Orange County, Florida, Case No. 08-10814 finding that the complaint adequately alleged a deprivation of property resulting from state action and that further proceedings were necessary to determine whether post-deprivation due process was meaningful and adequate to allow the property owners an opportunity to recover the property taken without due process due to a 5 minute limitation to present their case at the hearing pre-deprivation.

Keep reading for GZB’s summary of Kupke v. Orange County, Florida, Case No. 08-10814, decided September 8, 2008.

Sandy Springs Sued Over Holy Spirit Preparatory School Land Use Permit

The Long Island Neighborhoods Coalition, Gwinnett Real Estate Trust Ventures and Fred Filsoff have sued Sandy Springs challenging the Sandy Springs City Council’s decision to approve a Holy Spirit Preparatory School’s petition for a land-use permit.

According to the lawsuit, the coalition believes Mayor Eva Galambos and the City Council stepped out of their discretion when they granted Holy Spirit’s petition without rezoning the property from its current CUP conditional designation.

Holy Spirit Preparatory School President Gareth Genner said the lawsuit is “without merit” and a predictable attempt to delay construction.

“There is no substance to this claim,” said Genner. “It’s just simply an unvarnished attempt to delay the project or renegotiate the terms of the permit that’s been granted.”

The City Council approved the permit in a 4-2 vote at an Aug. 19 meeting. The permit granted Holy Spirit permission to transform the 7.98-acre parcel of land into a multi-use sports complex. The proposed complex will include an artificial turf football/soccer field, two tennis courts, a four-lane swimming pool and a field house, which also will house the chaplain’s office and meeting and retreat space.

Here is a pdf of the complaint filed by the coalition with the Fulton County Superior Court.

Snellville Considers Regulating Air Pollution . . . Continuing The Crematory Fight

After losing the first and second rounds in the fight against the crematory, Snellville City Council member Kelly Kautz has introduced a proposed ordinance to prevent businesses such as hospitals and crematories —- one crematory in particular —- from polluting the air.  The ordinance would place specific limits on mercury and dioxin/furan emissions for any incinerator of bodies, body parts or infectious wastes.

The proposed ordinance was modeled after a Pennsylvania ordinance, which was modeled after the Clean Air Act.

While the proposed ordinance excludes pre-existing facilities, but would prevent any air-polluting facilities within 300 yards of residential properties in Snellville and require businesses to self-monitor their emissions and report them to the city.

The proposal already faces opposition from within the City Council with Mayor Jerry Oberholtzer objecting to its introduction and first reading: 

“The basis of the whole ordinance scares me because the person who wrote it has no experience in environmental law. She’s a trial lawyer,” Oberholtzer said.  “What I understand is that she cut and pasted different ordinances together,” he added.

The proposal will be voted on at the October 13 meeting of the City Council at 7:30 p.m. in the City Council Room of Snellville City Hall.

DeKalb County May Pay $66,000 An Acre For Greenspace

DeKalb County Board of Commissioners is considering paying $66,000 per acre to perserve  as greenspace a 92-acre stretch along the South River in Southeast DeKalb near Stonecrest Mall.  The proposed $6 million deal has been criticized because the developer-owner of the property only paid $22,000 per acre only two years ago.  The money to purchase the property would come from the proceeds of bonds that were sold to buy and improve green space. Voters in DeKalb approved the bond programs in 2001 and 2006.

UPDATE:  The Commissioners delayed a vote on the greenspace acquisition until mid-October.

11th Circuit Affirms Bikini Bar Ordinance

In what reads as a harsh criticism of the limited appellate challenge mounted, the 11th Circuit Court of U.S. Court of Appeals affirmed an ordinance of Hillsborough County, Florida regulating bikini bars as having the purpose and effect of suppressing secondary effects.

The only evidence asserted by the challenger that the local ordinance did not have the purpose or effect of suppressing secondary effects was an expert witness’s assertion that calls for police help from the challenger’s adult business compared favorably to non-adult business.  The 11th Circuit rejected and discounted the value of such police calls as indicative of the kind of secondary effects which were the focus of the local ordinance.

5634 East Hillsborough Avenue, Inc. v. Hillsborough County, Florida, U.S. District Court of Appeals, 11th Circuit, Case No. 07-14955, decided September 18, 2008.

Georgia Supreme Court Affirms Counties’ Right to Object to Annexation of Unincorporated Areas

The Georgia Supreme Court has again affirmed that a county has standing to sue one of its cities to prevent annexation of unincorporated properties within the county.  However, the Supreme Court held that where the annexing city and property owners of annexed property had no present intention to rezone the annexed properties a county can not present sufficient evidence of a threat of harm to obtain interloctutory injunction relief.

Keep read for GZB’s summary of Cherokee County v. City of Holly Springs, Georgia Supreme Court, Case No. S08A0759, decided on September 22, 2008.

DOT Lets Acquired Rights of Way Languish

An audit of the Georgia Department of Transportation has not only revealed a deficit of $456 million, but that its right-of-way office, which acquires land for road development, has forced people to sell their land and then let it languish.  DOT doesn’t even know how much land it owns.

In one case, for a project on Ga. 316 and Ga. 81 in 1999, DOT told a man it needed land that he had bought less than six months before, intending to build a gas station.

It usually takes years for a project to arrive at the construction stage, and the man asked DOT if it would let him build his station and make what profit he could until the agency was ready to build its ramps.

DOT refused, saying the project was “imminent,” and condemned his land.

“Eight years later, GDOT continues to have no formal construction plans for the project and the project is not on GDOT’s Long Range Program,” according to the audit.

The audit also revealed that 52% of the people that fought the DOT appraisal of their property that was being taken ultimately received higher compensation calling in to question the qualifications of DOT appraisers.

DOT’s press release concerning the audit can be found here.

Dunwoody Picks Mayor & 5 Council Members

DeKalb County’s newest city in 70 years went to the polls Tuesday and elected its first mayor and five city council. 

Ken Wright was unopposed as mayor and will now serve a three-year term.  The remaining election results can be found here.

1832 Shiloh United Methodist Church Rezoned, but Cannot Become a Gas Station

In spite of neighborhood opposition, Kennesaw unanimously approved the rezoning of the Shiloh United Methodist Church on Cherokee Street near the intersection of Jiles Road from residential to commercial, but with the condition that the 5.5 acres  will not be developed as a gas station or convenience store.  The church had decided to pack up and sell the property to developer Brandon Ashkouti because it faced losing a portion of the property to the Cobb County Department of Transportation. 

Shiloh UMC was founded in 1832, making it one of the oldest churches in the county. The original church was a log cabin that Union Gen. William T. Sherman used as a hospital during the Civil War.   The current church was built in the 1930s. 

With the successful rezoning, Shiloh UMC can sell the property to the developer for $3 million and  build a new church about five miles north on Woodstock Road.

Cherokee County Considers Subdivision Regulations and Other Changes to Zoning Ordinance

Tonight -  September 16 – the Cherokee County Board of Commissioners will consider adding Subdivision Regulations and a few revisions to its current Zoning Ordinance.   

Cherokee County currently has no subdivision ordinance.  The proposed Subdivision Regulations sets forth new procedures every residential property owner or developer will have to follow to subdivide their property.  The proposed regulations attempts to discourage subdivided land from being further subdivided for a period of three (3) years, regardless of ownership.

The proposed Subdivision Regulations also set forth new requirements for construction, expansion, and maintenance of private roads, including requirements for additional disclosures in sales transactions.

The proposed amendments to the existing Zoning Ordinance limit the time period a manufactured home or building may be used because of a temporary hardship, place additional aesthetic-based regulations upon home offices, limit a non-conforming use to the portion of the property actually being used, prohibit the Zoning Board of Appeals from making decisions as to permissive uses within zoning districts, and make clear that no action by the Board of Commissioners upon a rezoning application within 90 days is deemed a denial without prejudice.

You can find the proposed Subdivision Ordinance and amendments here. 

You can find the current Cherokee County Zoning Ordinance here. 

The public meeting will be tonight, September 16 beginning at 6 p.m. in the Jury Assembly Room on the ground floor of the Justice Center located at 90 N. Street in Canton.

UPDATE:  NO DECISION WAS MADE AT THE SEPTEMBER 16 MEETING.

UPDATE:  THE PROPOSED ORDINANCE WILL BE CONSIDERED AT THE COMMISSIONERS MEETING ON OCTOBER 7, SAME TIME, SAME PLACE AS THE SEPTEMBER 6 MEETING.