---
title: Ga. Const. Art. IX, Sec. II, Para. IV. Planning and zoning.
collection: code
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cite_as: Ga. Const. Art. IX, Sec. II, Para. IV
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# Ga. Const. Art. IX, Sec. II, Para. IV. Planning and zoning.

A constitution provision shown as in force is in force as printed in the volume. A court decision can make a printed provision unenforceable without changing the volume, and the volume does not record that.

The governing authority of each county and of each municipality may adopt plans and may exercise the power of zoning. This authorization shall not prohibit the General Assembly from enacting general laws establishing procedures for the exercise of such power.

## Cross References

Minimum procedures for exercise of zoning power, T. 36, Chs. 66, 67.

## Law Reviews

For article, ‘‘Hazardous Waste Issues in Real Estate Transactions,’’ see 38 Mercer L. Rev. 581 (1987). For article, ‘‘Judicial Review of Georgia Zoning: Cyclones and Doldrums in the Windmills of the Mind,’’ see 2 Ga. St. U.L. Rev. 97 (1986). For article, ‘‘Financing Affordable Housing in Georgia: The Possibility of a Dedicated Revenue Source,’’ see 13 Ga. St. U.L. Rev. 363 (1996).

For note, ‘‘Constitutional Barriers to Statewide Land Use Regulation in Georgia: Do They Still Exist?,’’ see 3 Ga. St. U.L. Rev. 249 (1987). For note on using inclusionary zoning techniques to promote affordable housing, see 44 Emory L.J. 359 (1995).

For comment, ‘‘Judicial Review of Zoning Ordinances in Georgia: The Court’s Role in Land Use Planning,’’ see 41 Mercer L. Rev. 1469 (1990). For comment, ‘‘Hamlets: Expanding the Fair Share Doctrine Under Strict Home Rule Constitutions,’’ see 49 Emory L.J. 255 (2000).

## 1976 Constitution.

Art. IX, Sec. IV, Para. II.

## Zoning Act of 1927.

Power to zone, rezone, and make changes for use was clearly conferred upon cities by §§ 4 and 5 of the Zoning Act of 1927, Ga. L. 1927, p. 929, and such power is unquestionably in harmony with this paragraph. Brown v. City of Brunswick, 210 Ga. 738, 83 S.E.2d 12 (1954) (see Ga. Const. 1983, Art. IX, Sec. II, Para. IV).

## Zoning Procedures Law.

The Zoning Procedures Law, O.C.G.A. § 36-66-1 et seq., preempted the provisions in a city charter for the purposes of the adoption and amendment of zoning ordinances. Little v. City of Lawrenceville, 272 Ga. 340, 528 S.E.2d 515 (2000).

## Power to Zone Unquestionable.

The power and necessity for state legislatures and municipal governments to impose restrictions through zoning laws and ordinances is no longer subject to question. 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389 (M.D. Ga. 1972), aff’d, 482 F.2d 280 (5th Cir. 1973), cert. denied, 422 U.S. 1044, 95 S. Ct. 2660, 45 L. Ed. 2d 696 (1975).

Authority to create and restrict use

## Of Geographical Zones.

A county governing authority can create geographical areas within the boundaries of a county which are called zones; the governing authority can declare that the land in a zone can be used only for specified purposes or uses and that all other specified purposes or uses of the land in that zone are prohibited. Matthews v. Fayette County, 233 Ga. 220, 210 S.E.2d 758 (1974).

Extent of authority to zone or dis-

## Trict.

The authority to zone or district as conferred under this paragraph is limited to creation or establishment of zones or districts in the first instance, and contains no authority either express or implied to thereafter make any exception with respect to the status of the particular district as already zoned, by amending or repealing in whole or in part the zoning ordinance enacted in accordance with the authority delegated by statute. The statutory authority given to a particular class of counties as differs from that granted various other counties and that given municipalities where the statute specifically authorized the governing body either through the creation of a board of zoning appeals, or other similar body, to make changes and exceptions, or to amend or modify the classifications of areas already zoned; and in so doing a well defined procedure is established to effect such ends. Barton v. Hardin, 204 Ga. 108, 48 S.E.2d 882 (1948) (see Ga. Const. 1983, Art. IX, Sec. II, Para. IV). ticular use not authorized by this

## Authority to Control Building’s Parparagraph.

Georgia Laws 1939, p. 245 which, under authority of the amendment to the Constitution of 1877 proposed by Ga. L. 1937, p. 1135, ratified by the people on June 8, 1937, and applicable to Richmond County, and substantially similar to this paragraph, authorizes the county authorities to adopt zoning ordinances for stated purposes, does not grant authority to control the use to which a particular building may be devoted, and an ordinance which sought to prohibit the operation of a grocery store in zoned territory was in that respect ultra vires and invalid when tested by the Act of 1939. Lanier v. Richmond County, 203 Ga. 39, 45 S.E.2d 415 (1947) (see Ga. Const. 1983, Art. IX, Sec. II, Para. IV).

Rule governing county response to

## Court Declaration of Unconstitutionality of Zoning Regulations.

Once the zoning regulations applicable to a particular tract of land have been declared unconstitutional and void by the judiciary, before the judiciary can require further mandatory action, the governing authority must be given a reasonable time for the rezoning of the tract to a use classification that is constitutional. But if the governing authority does not accomplish this purpose within a reasonable time after the current zoning has been declared unconstitutional and void, then the judiciary, as a last resort toward obtaining compliance with its judgment, may declare such tract unzoned and free from all municipal or county zoning restrictions. City of Atlanta v. McLennan, 237 Ga. 25, 226 S.E.2d 732 (1976).

Trial court’s declaration that property was ‘‘unzoned and free from all Cobb County Zoning restrictions’’was a perilous condition to inflict upon adjoining landowners, since it might cause them severe inconvenience or irreparable harm. A safer alternative would be the trial court’s General Consideration (Cont’d) use of its power to order the local zoning authority to rezone the property to a classification that is constitutional. Cobb County v. Wilson, 259 Ga. 685, 386 S.E.2d 128 (1989).

## Moratorium on Zoning Permits Impermissible.

That a county may have been given increased authority to zone under the 1983 Constitution does not enable it to defeat property owners by a moratorium placed on permits, after the property owners applied for a permit, made substantial expenditures, and received assurances from zoning officials. Cannon v. Clayton County, 255 Ga. 63, 335 S.E.2d 294 (1985).

Rezoning may not infringe on

## Vested Property Rights.

Even if a county’s zoning power has been broadened by the enactment of Ga. Const. 1983, Art. IX, Sec.II, Para. IV, the county may not use its zoning power to defeat the vested property interest of a property owner to use the owner’s land as zoned. Cannon v. Clayton County, 255 Ga. 63, 335 S.E.2d 294 (1985). mune from local zoning regulations even if the corporation is performing services which are governmental in nature, at least in the absence of clear legislative intent that such immunity be extended. Macon Ass’n for Retarded Citizens v. Macon-Bibb County Planning & Zoning Comm’n, 252 Ga. 484, 314 S.E.2d 218, appeal dismissed, 469 U.S. 802, 105 S. Ct. 57, 83 L. Ed. 2d 8 (1984).

Former ‘‘Steinberg Act,’’ former O.C.G.A. § 36-67-1 et seq., providing for zoning proposal review procedures in urbanized counties, did not unconstitutionally bind the local government in any way nor infringe on the local government’s ability to exercise the power of zoning. Northridge Community Ass’n v. Fulton County, 257 Ga. 722, 363 S.E.2d 251 (1988).

Cited in Chambers v. City of Atlanta Bd. of Zoning Adjustment, 255 Ga. 538, 340 S.E.2d 922 (1986); Cobb County Bd. of Comm’rs v. Poss, 257 Ga. 393, 359 S.E.2d 900 (1987); Kingsley v. Fla. Rock Indus., Inc., 259 Ga. App. 207, 575 S.E.2d 921 (2002).

By Municipalities and Counties

General Assembly has power to grant to municipalities and counties ning laws. Birdsey v. Wesleyan College, 211 Ga. 583, 87 S.E.2d 378 (1955).

Direct authority has been granted to the counties to enact planning and eas. Johnston v. Hicks, 225 Ga. 576, 170 S.E.2d 410 (1969).

Legislature no longer has authority ning and zoning for unincorporated areas. Johnston v. Hicks, 225 Ga. 576, 170 S.E.2d 410 (1969).

## Nonprofit Corporation Is Not Imauthority to Pass Zoning and Planzoning Laws for Unincorporated Arto Enact Local Laws Concerning plan-County Authorities Control Zoning.

— Authority to amend or repeal existing planning and zoning laws or to enact new planning and zoning laws with respect to unincorporated areas has been granted to the county authorities. Johnston v. Hicks, 225 Ga. 576, 170 S.E.2d 410 (1969). thority to grant a county the authority to enact zoning and planning laws

## The General Assembly Has No Auexcept by Constitutional Provision.

Johnston v. Hicks, 225 Ga. 576, 170 S.E.2d 410 (1969).

Legislature not empowered to zone

## Property.

Georgia Laws 1953, p. 2788, eliminating from jurisdiction of a county planning board certain property and providing that this property be zoned for cemetery purposes, was unconstitutional under provision declaring that the legislature has authority to delegate to counties and municipalities the right to zone property. Neither under this provision of the Constitution, nor under any other provision of the Constitution or laws, has the legislature itself the right to zone property. Herrod v. O’Beirne, 210 Ga. 476, 80 S.E.2d 684 (1954).

The legislature has power to pass

## Outdoor Advertising Zoning Laws.

The 1983 Constitution carried forward power held exclusively in the counties and municipalities from Paragraph II of Section VIII of Article IV of the Georgia Constitution of 1976, (see Ga. Const. 1983, Art. X, Sec. 11, Paras. VI, IV, VI, and VII); the Outdoor Advertising Act does not conflict with Ga. Const. 1983, Art. IX, Sec. II, Para. IV. Patrick v. Head, 262 Ga. 654, 424 S.E.2d 615 (1993).

Zoning regulations enacted by a tional and legislative authority are valid and cannot be held unconstitutional on contention that constitutional authority to zone conflicts with other provisions of the Constitution, or upon the contention that rights guaranteed by the Constitution are denied as a result of the zoning regulations. Palmer v. Tomlinson, 217 Ga. 399, 122 S.E.2d 578 (1961).

Under the Constitution of this state, a city has broad authority as to zoning. Galfas v. Ailor, 81 Ga. App. 13, 57 S.E.2d 834 (1950).

This paragraph is a broad grant of direct constitutional authority to

## Municipality Pursuant to Constitucounties to Enact Zoning Ordinances.

Matthews v. Fayette County, 233 Ga. 220, 210 S.E.2d 758 (1974) (see Ga. Const. 1983, Art. IX, Sec. II, Para. IV).

Only authorities empowered by the Constitution to zone can zone, and vide otherwise. Hunt v. McCollum, 214 Ga. 809, 108 S.E.2d 275 (1959).

Legislature was authorized to grant to the governing authorities of ing and planning laws whereby such cities may be zoned or districted for various uses and other or different uses prohibited therein, and regulating the use for which said zones or districts may be set apart, and regulating the plans for development and improvement of real estate therein.’’ Brown v. City of Brunswick, 210 Ga. 738, 83 S.E.2d 12 (1954).

## The Legislature Is Powerless to Pronamed Cities ‘‘authority to Pass zon-Restriction on State Power.

Ga. L. 1957, p. 420, § 10, as amended, requiring submission of zoning ordinance amendments to a municipal planning commission, was inconsistent with the provisions of Ga. Const. 1976, Art. IX, Sec. IV, Para. II (see Ga. Const. 1983, Art. IX, Sec. II, Paras. III, IV, VI, and VII), prohibiting the General Assembly from restricting the power of a municipality to plan and zone; and that statutory provision was properly omitted from the O.C.G.A. by the codifiers. Warshaw v. City of Atlanta, 250 Ga. 535, 299 S.E.2d 552 (1983).


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