Challenges to Decisions on Conditional Use Pemits Under Zoning Ordinances

In Georgia, a conditional use permit, also known as a special use permit or a use permit, is a type of zoning permit that a land owner must seek for certain, listed uses of property that are not generally allowed a a matter of right within a zoning district, but are allowed following an application and permit process designed to ensure that the listed use will not negatively impact neighbors.  Zoning ordinances create criteria or guidelines that the local government must consider on an application for such a permit.  Developers, land owners and neighbors are often faced with consequences related to the grant or denial of conditional use permits of land.   Challenges to decisions of boards of commissioners or city councils are difficult for the party that lost its position before a board or council.   The standard of review is the main obstacle to a court appeal.  See City of Atlanta v. Wansley Moving & Storage Co., 245 Ga. 794, 267 S.E.2d 234 (1980).

Smart city and county attorneys take advantage of a line of Georgia appellate decisions to frame zoning ordinances  in a way that takes advantage of the standard of review.  Under an ordinance in which the decision to grant or deny a conditional use permit is ultimately left to the discretion of the governing authority, the standard of review that a court applies on an appeal of such a decision requires the appellant to show that the decision of the legislative body was arbitrary and capricious, or constituted a gross abuse of discretion.  Any evidence supporting the decision of the body is sufficient to show that the decision was not arbitrary and capricious or a gross abuse of discretion.   The court looks at the sufficiency of the evidence before the legislative body in addressing this issue, and does not consider new evidence.

Examples of how the standard of review makes for a hard argument in front of a trial court on an appeal of a decision of a legislative body on an application for a conditional use permit can be imagined from either the viewpoint of the applicant for the conditional use permit, or from the viewpoint of the opponents, which are typically neighboring land owners.   For example, where a board or council denies such a permit under an ordinance that leaves the consideration of a conditional use permit to the discretion of the legislative body, the applicant developer seeking to appeal the decision to a court must show that there was no evidence that supported the decision, making it arbitrary and capricious, or a gross abuse of discretion.   Or, where a group of neighbors seeks to fight a grant of a conditional use permit by a board of commissioners or city council under an ordinance that leaves the matter to the discretion of the legislative body, the challengers must show that there was no evidence to support the grant of the application.   Either showing is tough on appeal to superior court.

Conditional use permits are often required under zoning ordinances for churches, schools, and other uses that are commonly institutional in nature, but are sited in or near residential use districts.  Residential uses are commonly thought of as incompatible with institutional uses due to traffic, noise, and congestion.    Of course, the residential neighborhoods themselves create the users and demand for churches and schools that service the residents of the neighborhoods.  Zoning ordinances use conditional use permits to balance the needs of the neighbors against the impacts from the uses.