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A Blog about Real Estate, How it Can Be Damaged, and Disputes Over its Transfer

This blog is a personal blog written to discuss legal issues affecting Georgia property, and how it is damaged, transferred, and fought over. I write this partly to keep abreast of the law, and partly to offer a forum for my writing. In order to find content, I often analyze Georgia Supreme Court decisions. I try to update this blog as I can, but writing is a time consuming process.

Tuesday, February 12, 2013

Constitutional Challenges to Zoning Decisions

In Association of Guineans in Atlanta, Inc. v. Dekalb County, Georgia, the Supreme Court of Georgia reaffirmed the rule that a constitutional challenge to a zoning decision must be made before the zoning body.  Appeal Case No. S12A1603 (Ga., Feb. 4, 2013).  The court held that the plaintiff, who challenged a denial of its petition for a special use permit for a religious facility, had failed to raise its constitutional challenges to the denial of the application before the board of commissioners.  Therefore, the plaintiff was not able to challenge the zoning decision before the superior court.

The court went on, however, to reverse the superior court's dismissal of the plaintiff's claims under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. Section 2000cc.  In the second holding, the court reversed the Dekalb County Superior Court because the judge had failed to apply the correct standard for consideration of a motion to dismiss.

The case stands for the proposition that a motion to dismiss does not involve consideration of evidence.  Such a motion requires an assumption by the court that all of the plaintiff's allegations are true.  In other words, courts are not supposed to consider the weight of the evidence at the motion to dismiss stage. This rule is learned in the first year of law school.

In addition, the case is important in that applicants for a rezoning must raise constitutional issues before the zoning boards and cannot wait until superior court to raise constitutional claims for the first time.  The practical effect of this rule is that it requires land owners who are applying for a special use permit or rezoning to hire a lawyer before the zoning hearings.  Lay persons are likely to miss this rule, which bars them from proceeding to court.

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