Constitución del Estado de Georgia

Artículo IX. COUNTIES AND MUNICIPAL CORPORATIONS · Artículo IX. COUNTIES AND MUNICIPAL CORPORATIONS · Sección II. HOME RULE FOR COUNTIES AND MUNICIPALITIES

Art. IX, Sec. II, Para. IV. Planning and zoning.

Vigente

Actualizado hasta: Including Acts of the 2025 Regular Session of the General Assembly.

Una disposición constitucional que se muestra como vigente está vigente tal como está impresa en el volumen. Una decisión judicial puede hacer inaplicable una disposición impresa sin cambiar el volumen, y el volumen no registra eso.

El texto siguiente es la ley tal como la imprime el estado, en inglés.

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.

Las notas siguientes se imprimen con la sección, pero no son ley promulgada (O.C.G.A. § 1-1-1(c)). Se muestran aparte del texto.

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).

Otras notas (48 entradas, tal como están impresas)

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).
Due process not violated.: The state Constitution contains both a due process clause and a zoning provision. They must be construed together. Accordingly, it can no longer be held that a zoning statute, which authorizes a city embraced within it to pass a zoning and planning ordinance, is per se unconstitutional and void because it deprives the owner of real estate and property without due process of law since this paragraph supersedes the decisions of the Supreme Court which declared zoning statutes unconstitutional and void because they denied due process of law to the owners of real estate embraced in zoning districts. Schofield v. Bishop, 192 Ga. 732, 16 S.E.2d 714 (1941) (see Ga. Const. 1983, Art. IX, Sec. II, Para. IV). A zoning statute is not per se unconstitutional and void because it deprives the owner of the owner’s property without due process of law. Matthews v. Fayette County, 233 Ga. 220, 210 S.E.2d 758 (1974). Zoning ordinance must not infringe necessarily or unreasonably; and if the application of a zoning ordinance has the effect of completely depriving an owner of the beneficial use of the owner’s property by precluding all uses, or the only use to which it is reasonably adapted, an attack upon the validity of the regulation, as applied to the particular property involved, will be sustained. Humthlett v. Reeves, 212 Ga. 8, 90 S.E.2d 14 (1955). A zoning statute or ordinance tional unless its provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. The exercise of police power in this regard must be upheld if any state of facts either known or which could be reasonably assumed affords support for it. 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).
constitutional guaranties by invading personal or property rights unshould not be declared unconstitu-Civil rights do not authorize operating business in violation of ordinance.: Civil rights do not authorize operation of a business within a municipality in violation of an ordinance enacted By Municipalities and Counties (Cont’d) under police power and for welfare of the community. 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). Motion picture theaters, like filling stations and whiskey stores, are not immune from regulation under the police power. 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). Where restraint is relatively minor and the public interest to be protected is substantial, the regulation will be upheld. 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 969 (1975).
Right to disseminate motion pictures is not absolute.: It does not mean that any motion picture can be distributed at any time, at any place, and under any circumstances. 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).
Regulation affecting only one business party valid.: Fact that only one party operating a business is affected by a regulation designed to localize operation of such business in a certain district does not show arbitrary and unreasonable or unjust discrimination in violation of organic rights. 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). Circumstances under which zoning ordinances have been held invalid, as applied to certain specific property, fall into three general classes: (1) where a small parcel of property is zoned for residential purposes, when it is entirely surrounded by commercial or business enterprises; (2) where property zoned for residential use is entirely unsuited for residential purposes; or (3) where the purpose of the ordinance is not to protect the public health, safety, morals, or general welfare. Humthlett v. Reeves, 212 Ga. 8, 90 S.E.2d 14 (1955).
Zoning laws sustainable.: Unless regulations enacted by a local governing body are so unreasonable and extravagant that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law, they do not exceed the limits of the police power of the governing body to enact the regulations. Kirkpatrick v. Candler, 205 Ga. 449, 53 S.E.2d 889 (1949). There is no violation of due process by a zoning ordinance that eliminates use of the property in any of the permissible ways. Riddle v. Waller, 127 Ga. App. 399, 193 S.E.2d 895 (1972). Validity of a city zoning ordinance depends upon facts existing at time validity is questioned, and confiscatory character of the ordinance can be proven by conditions then existing. Humthlett v. Reeves, 212 Ga. 8, 90 S.E.2d 14 (1955).
Valid ordinance may result in confiscation of particular properties.: Because a zoning ordinance may in general be valid, and yet, as to a particular state of facts involving a particular parcel of real estate, be so arbitrary and unreasonable as to result in confiscation, thereby justifying the interposition of a court of equity to restrain its enforcement. Humthlett v. Reeves, 212 Ga. 8, 90 S.E.2d 14 (1955). Requirements for enforcement of
zoning ordinances.: Zoning ordinances must not only be nondiscriminatory and reasonable but also must be applied in a nondiscriminatory and reasonable manner in order to be enforceable. Whether an ordinance is uniformly enforced by the authorities is a question of fact. Matthews v. Fayette County, 233 Ga. 220, 210 S.E.2d 758 (1974). Effect of changed conditions and
uses of adjacent property since passage of zoning ordinance.: Evidence as to change of condition and circumstances since passage of ordinance zoning defendants’ property for residential and agricultural purposes because of uses of property adjacent to or near defendants’ property, was sufficient to warrant conclusion that to apply the provisions of the ordinance to the property of the defendants would render such ordinance arbitrary and unreasonable. Humthlett v. Reeves, 212 Ga. 8, 90 S.E.2d 14 (1955). Owner bears burden of proof of arbitrariness and unreasonableness of
ordinance.: Where it is claimed that a zoning ordinance is unreasonable as to a particular tract of property, or that a change of conditions has rendered the ordinance unreasonable when applied to the particular property, the burden is on the owner of such property to produce sufficient evidence from which the court can make findings of fact and law such as would justify a holding as a matter of law that the ordinance is arbitrary and unreasonable; there must be a showing of an abuse of discretion on the part of the zoning authority, and that there has been an unreasonable and unwarranted exercise of the police power. Humthlett v. Reeves, 212 Ga. 8, 90 S.E.2d 14 (1955). idates subsequent enactments by
Ultra vires act by legislature invalcommission.: In 1943 and 1949 the governing authority of a county was the commissioner of roads and revenues (now county commissioners); the legislature exceeded its authority under this paragraph when it created a planning commission with authority to enact zoning laws and regulations for a county, and therefore the commission was wholly without any power to promulgate an ordinance zoning the defendants’ property for any purpose. Humthlett v. Reeves, 212 Ga. 8, 90 S.E.2d 14 (1955) (see Ga. Const. 1983, Art. IX, § II, Para. IV).
Burden is on applicant.: The burden is on the applicant to show that practical difficulties or undue hardship to the owner requires the allowance of the variance. International Funeral Servs., Inc. v. DeKalb County, 244 Ga. 707, 261 S.E.2d 625 (1979). Delegation of discretion in zoning
matters is unconstitutional.: The ‘‘governing authority,’’ under this provision, strictly refers to such city or county board as has the authority to exercise general and not limited powers. Delegation of legislative discretion in zoning matters would thus prove to be an unconstitutional act. Button Gwinnett Landfill, Inc. v. Gwinnett County, 256 Ga. 818, 353 S.E.2d 328 (1987).
Authority to grant special exceptions is constitutional.: A county commission delegates no legislative power to the zoning board of appeals where the zoning board of appeals simply determines whether an applicant’s property strictly complies with the conditions that the governing authority has specified and if the property complies, the special exception is granted, but if the property does not, the exception is denied. Button Gwinnett Landfill, Inc. v. Gwinnett County, 256 Ga. 818, 353 S.E.2d 328 (1987). A board of zoning adjustment’s power to decide special exceptions was not in contravention of Ga. Const. 1983, Art. IX, Sec. II, Para. IV. The board’s discretion was tightly controlled by an ordinance, which dictated whether or not the board could grant the special exception. If the property complied with the conditions set out by the governing authority, the special exception was to be granted, but if it did not comply, the special exception was not to be granted. LaFave v. City of Atlanta, 258 Ga. 631, 373 S.E.2d 212 (1988).
No zoning power over property outside town’s territorial limits.: With regard to the landowners’ declaratory judgment, mandamus, and injunctive relief suit seeking damages against a town and its officials alleging the unconstitutionality and invalidity of an overlay zoning district, the trial court erred by denying the landowners’ motion for partial summary judgment with regard to the landowners’ claim that the town did not have any legal authority to impose the requirements of the overlay zoning ordinance for right-of-way improvements on the state route abutting the property since the property at issue was outside the territorial boundaries of the town, therefore, the requirements of the overlay zoning ordinance were invalid as to the property since the town had no zoning authority over the same. Century Ctr. at Braselton, LLC v. Town of Braselton, 285 Ga. 380, 677 S.E.2d 106 (2009). By Municipalities and Counties (Cont’d)
City’s authority to regulate county’s building projects within city limits.: A county government is exempt from all municipal regulation of construction projects undertaken by the county with respect to county-owned property located within the city and used for governmental purposes, but that they are subject to other municipal regulations as indicated by the Georgia legislature such as fire safety standards, O.C.G.A. § 25-2-12, or compliance with the Erosion and Sedi-mentation Act, O.C.G.A. § 12-7-1 et seq. City of Decatur v. DeKalb County, 256 Ga. App. 46, 567 S.E.2d 376 (2002). Owner had to be in compliance
with then existing sign ordinance.: Property owner did not have a vested right to erect a sign because it had not been erected in accordance with zoning regulations in force when the owner applied for the permit; accordingly, the owner’s failure to comply with the permit rendered the owner outside of the scope of protection afforded by Ga. Const. 1983, Art. IX, Sec. II, Para. IV. Although the Outdoor Advertising Control Act, O.C.G.A. § 32-6-70, also afforded protections, such protection was again not applicable to the property owner because the owner had not erected the owner’s sign in compliance with the legal requirements of the existing ordinances; accordingly, the owner had no property rights in the sign. DeKalb County v. DRS Invs., Inc., 260 Ga. App. 225, 581 S.E.2d 573 (2003).
Permitting for signs.: Void county sign ordinance could not be used as the basis for the denial of sign companies’ applications for permits to construct billboards, and the invalidity of the ordinance resulted in there being no valid restriction on the construction of billboards in the county. Accordingly, the sign companies obtained vested rights in the issuance of the permits which the companies sought and the constitutional authority of cities that were subsequently formed to plan and zone within the cities’ jurisdictions was not violated. Fulton County v. Action Outdoor Adver., JV, LLC, 289 Ga. 347, 711 S.E.2d 682 (2011). Judiciary’s Role Passage of an ordinance is a legislative act, and no change can be made in such an ordinance except by passage of another, qualifying, repealing, or modifying its terms. Alewine v. City Council, 505 F. Supp. 880 (S.D. Ga. 1981), aff’d in part and reversed in part, 699 F.2d 1060 (11th Cir. 1983), cert. denied, 470 U.S. 1027, 105 S. Ct. 1391, 84 L. Ed. 2d 781 (1985). Claim alleging violation of a right ble as a cause of action under state law. Alewine v. City Council, 505 F. Supp. 880 (S.D. Ga. 1981), aff’d in part and reversed in part, 699 F.2d 1060 (11th Cir. 1983), cert. denied, 470 U.S. 1027, 105 S. Ct. 1391, 84 L. Ed. 2d 781 (1985).
created by city ordinance is cogniza-Judicial restraint required.: Because judicial restraint in the zoning area is implicitly required by this paragraph, the judiciary, only as a last resort, should declare a tract of land free from zoning regulations that are imposed and that may be only imposed by local governing authorities. City of Atlanta v. McLennan, 237 Ga. 25, 226 S.E.2d 732 (1976) (see Ga. Const. 1983, Art. IX, Sec. II, Para. IV). Municipal ordinance based on a general power in a charter of a city must be reasonable. Schofield v. Bishop, 192 Ga. 732, 16 S.E.2d 714 (1941). Ordinance may be unreasonable or arbitrary, and if it is unreasonable or arbitrary, it will be declared void and unenforceable. Schofield v. Bishop, 192 Ga. 732, 16 S.E.2d 714 (1941). ness of a city zoning and planning ordinance is a question of law for the court to decide, unless it depends on the existence of particular facts which are disputed, when it may become in part a question for a jury. Schofield v. Bishop, 192 Ga. 732, 16 S.E.2d 714 (1941). Local government in best position
Reasonableness or unreasonableto decide needs of own community.: A county or municipality or any combination thereof ordinarily should be in a better position to understand the needs of their own communities; and where once these public bodies are given power to put restraint on the use of property in populous areas, courts will not interfere with the exercise of it unless it appears that the rights of a citizen have been violated. It is not the business of the courts to regulate these governing bodies as to matters within their discretion. Schofield v. Bishop, 192 Ga. 732, 16 S.E.2d 714 (1941). Legislature and city council best
qualified to determine need for regulation.: State legislatures and city councils, who deal with the situation from a practical standpoint, are better qualified than courts to determine the necessity, character, and degree of regulation required; and their conclusions should not be disturbed by the courts, unless clearly arbitrary and unreasonable. Schofield v. Bishop, 192 Ga. 732, 16 S.E.2d 714 (1941). Once the decision is made that the governing body possesses the power to zone and restrict use of property, then the acts of such body in exercise of such power will not be disturbed by the courts unless they are clearly arbitrary and unreasonable. Schofield v. Bishop, 192 Ga. 732, 16 S.E.2d 714 (1941); Matthews v. Fayette County, 233 Ga. 220, 210 S.E.2d 758 (1974). Limitations of power of city council are not to be measured by the more ture. Schofield v. Bishop, 192 Ga. 732, 16 S.E.2d 714 (1941). Trial court is authorized to review a variance decision to determine whether a board or county exceeded its authority, abused its discretion, or acted arbitrarily or capriciously with regard to an applicant’s constitutional rights. International Funeral Servs., Inc. v. DeKalb County, 244 Ga. 707, 261 S.E.2d 625 (1979). Due Process and Equal Protection Party must have due and legal notice of the hearing on the matter of rezoning before the county governing authority, the body which can rezone land and thereby deprive a party of property rights. F.P. Plaza, Inc. v. Waite, 230 Ga. 161, 196 S.E.2d 141, cert. denied, 414 U.S. 825, 94 S. Ct. 129, 38 L. Ed. 2d 59 (1973). Lack of notice did not violate con-
extensive powers of the state legislastitutional rights.: Defective notice or lack of notice of preliminary hearing before the planning commission was not violative of procedural due process or equal protection. F.P. Plaza, Inc. v. Waite, 230 Ga. 161, 196 S.E.2d 141, cert. denied, 414 U.S. 825, 94 S. Ct. 129, 38 L. Ed. 2d 59 (1973). Notice by publication of a rezoning hearing is proper and adequate insofar as the requirements of procedural due process and equal protection are concerned. F.P. Plaza, Inc. v. Waite, 230 Ga. 161, 196 S.E.2d 141, cert. denied, 414 U.S. 825, 94 S. Ct. 129, 38 L. Ed. 2d 59 (1973). Rezoning
Authority to rezone necessary implication authority to zone.: The authority of the General Assembly to grant to the governing authorities of any county authority to pass zoning and planning laws whereby such counties may be zoned or districted for various uses, and other or different uses prohibited therein, and to regulate the use for which said zones or districts may be set apart and to regulate the plans for development and improvement of real estate therein, necessarily includes the authority of the General Assembly to grant to the county authorities the right to rezone property which had already been zoned. Kirkpatrick v. Candler, 205 Ga. 449, 53 S.E.2d 889 (1949). Power to zone contained in the Constitution of 1945, and authority granted to specific cities by the amendment of 1948, fully authorize rezoning of property, and such rezoning does not violate the due process clause of the Constitution. Birdsey v. Wesleyan College, 211 Ga. 583, 87 S.E.2d 378 (1955). Rezoning legislation presumed
valid.: Where the governing authority rezones property, the authority need not enter findings and conclusions justifying the rezoning decision because it is acting in a legislative capacity. Like other legislative action, rezoning legislation, when duly adopted, is presumed to be valid until the contestant shows otherwise. Hall Paving Co. v. Hall County, 237 Ga. 14, 226 S.E.2d 728 (1976).
and Chapter 69-12.: The provision of this paragraph prohibiting the legislature’s enactment of any further legislation concerning planning and zoning apparently invalidates former Code 1933, Chapter 69-8 and Chapter 69-12 since they clearly regulate the zoning and planning power of cities and counties by establishing uniform procedural mechanisms for implementation of that power. However, the invalidation of these chapters does not rescind all those city and county ordinances that have been enacted pursuant to these chapters; they will remain effective until the city or county expressly changes them. 1977 Op. Att’y Gen. No. 77-5. (see Ga. Const. 1983, Art. IX, Sec. II, Para. IV). City or county can now adopt whatever system it desires for planning and zoning, so long as that system is not arbitrary — i.e., so long as it meets minimal due process standards. 1977 Op. Att’y Gen. No. 77-5.
Necessity for enabling Act.: This provision authorizing zoning and planning laws for municipalities is not self-executing and the General Assembly must pass an enabling Act authorizing officials of the municipality to pass zoning and planning laws. 1945-47 Op. Att’y Gen. p. 416.
Zoning powers are vested.: Zoning powers of county government are constitutionally vested and cannot be limited, restricted or interfered with by any legislative enactment, general or local, of the General Assembly; however, insofar as municipal government is concerned the zoning powers which they have been authorized by the General Assembly to exercise can be withdrawn by the General Assembly, although in such event these zoning powers are not capable of being placed elsewhere by the General Assembly, and can be subjected to such limitations and procedural requisites as the General Assembly may reasonably think proper. 1974 Op. Att’y Gen. No. U74-9.
‘‘Local’’ constitutional amendments.: A ‘‘local’’ constitutional amendment may repeal or change, or authorize the General Assembly by local Act to repeal or change, a planning or zoning ordinance adopted by local governmental authority. 1974 Op. Att’y Gen. No. U74-9 (decided under former § 2-1923). General Assembly cannot require a tivities if it does not want to; however, the General Assembly does have power to prescribe the procedure a municipality must follow if the municipality chooses to exercise its zoning powers. 1974 Op. Att’y Gen. No. U74-9. Governmental body authorized to
municipality to engage in zoning acexercise zoning powers.: The only governmental bodies which may be authorized to exercise zoning powers are governing authorities of the municipalities and counties of this state. 1974 Op. Att’y Gen. No. U74-9. Extent of governing authorities
powers.: The governing authorities of each municipality and each county in the state may adopt by ordinance or resolution the general law zoning and planning statutes and form separate or joint city-county zoning and planning commissions without the necessity of the General Assembly enacting additional local legislation. 1957 Op. Att’y Gen. p. 342.
Procedure constituting area planning commissions.: If the county governing authorities and the governing authorities of the county seat of each of the counties involved adopted resolutions and ordinances to effectuate the same, the resulting area planning commission would be legally constituted. 1963-65 Op. Att’y Gen. p. 670 (decided under former Code 1933, § 2-1923). tra vires insofar as it affects the state because a municipality is a creature of the state and possesses only such power as the state may delegate to it; the presumption would be that the state in authorizing a municipality to enforce zoning and inspection ordinances did not intend to include state property in such inspections. 1958-59 Op. Att’y Gen. p. 219.
Municipal building ordinance is ul-Forms.: 25C Am. Jur. Pleading and Practice Forms, Zoning and Planning, § 2.
ALR.: Validity of regulations as to plumbers and plumbing, 36 ALR 1342; 22 ALR2d 816. Rights in respect of street number or street name, 57 ALR 461; 98 ALR 1213. To what uses may park property be devoted, 63 ALR 484; 144 ALR 486. Validity of safety zone ordinance, 79 ALR 1328. Zoning: creation by statute or ordinance of restricted residence districts from which business buildings or multiple residences are excluded, 117 ALR 1117. Power of municipalities or other political subdivisions to engage in a joint project or enterprise, 123 ALR 997. Validity, construction, and application of statutes, and regulations adopted thereunder, regarding county planning or zoning, or planning or zoning in territory outside municipal limits, 131 ALR 1055. Construction or improvement of sewers as a local or district improvement within provisions authorizing or requiring special assessments or other specified means of defraying expense, 134 ALR 895. Rezoning or amendment of zoning regulations as affecting persons who have purchased or improved property in reliance upon original regulations, 138 ALR 500. Building restrictions, by covenant or condition in deed or by zoning regulation, as applied to religious groups, 148 ALR 367. Validity of zoning law as affected by limitation of area zoned (partial or ‘‘piecemeal’’ zoning), 165 ALR 823. Restrictions on location of undertaking establishment, 165 ALR 1112. Establishment or extension of sewer as a public use or purpose for which power of eminent domain may be exercised, 169 ALR 576. Permissible activities under zoning laws permitting greenhouses and nurseries, 40 ALR2d 1459. Spot zoning, 51 ALR2d 263. Attack on validity of zoning statute, ordinance, or regulation on ground of improper delegation of authority to board or officer, 58 ALR2d 1083. Zoning regulations as affecting churches, 74 ALR2d 377; 62 ALR3d 197. Validity and construction of zoning regulations requiring garage or parking space, 74 ALR2d 418. Exclusiveness of method prescribed by statute or ordinance for enforcement of special assessment for public improvement or service, 88 ALR2d 1250. Validity of front setback provisions in zoning ordinance or regulation, 93 ALR2d 1223. Construction of front setback provisions in zoning ordinance or regulation, 93 ALR2d 1244. Zoning as a factor in determination of damages in eminent domain, 9 ALR3d 291. Aesthetic objectives or considerations as affecting validity of zoning ordinance, 21 ALR3d 1222. Meaning of the term ‘‘hotel’’ as used in zoning ordinances, 28 ALR3d 1240. Validity and construction of ‘‘zoning with compensation’’ regulation, 41 ALR3d 636. Validity and application of zoning regulations relating to mobile home or trailer parks, 42 ALR3d 598. Exclusionary zoning, 48 ALR3d 1210. Buffer provision in zoning ordinance as applicable to abutting land in adjoining municipality, 48 ALR3d 1303. Retroactive effect of zoning regulation, in absence of saving clause, on pending application for building permit, 50 ALR3d 596. Validity, construction, and application of zoning ordinance relating to operation of junkyard or scrap metal processing plant, 50 ALR3d 837. Zoning: Right to resume nonconforming use of premises after involuntary break in the continuity of nonconforming use caused by difficulties unrelated to governmental activity, 56 ALR3d 14. Applicability of zoning regulations to waste disposal facilities of state or local governmental entities, 59 ALR3d 1244. What constitutes ‘‘church,’’ ‘‘religious use,’’ or the like within zoning ordinance, 62 ALR3d 197. Validity and construction of zoning ordinance requiring developer to devote specified part of development to low and moderate income housing, 62 ALR3d 880. Adoption of zoning ordinance or amendment thereto through initiative process, 72 ALR3d 991. Adoption of zoning ordinance or amendment thereto as subject of referendum, 72 ALR3d 1030. Zoning regulations as applied to private and parochial schools below the college level, 74 ALR3d 14. Zoning regulations as applied to public elementary and high schools, 74 ALR3d 136. Validity of zoning for senior citizen communities, 83 ALR3d 1084. Zoning regulations as applied to homes or housing for the elderly, 83 ALR3d 1103. Applicability of zoning regulation to nongovernmental lessee of government owned property, 84 ALR3d 1187. Construction and application of zoning regulations in connection with funeral homes, 92 ALR3d 328. Validity of zoning ordinances prohibiting or regulating outside storage of house trailers, motor homes, campers, vans, and the like, in residential neighborhoods, 95 ALR3d 378. Zoning regulations in relation to cemeteries, 96 ALR3d 921. Validity of statutory classifications based on population — zoning, building, and land use statutes, 98 ALR3d 679. Zoning regulations prohibiting or limiting fences, hedges, or walls, 1 ALR4th 373. Enforcement of zoning regulation as affected by other violations, 4 ALR4th 462. Validity of ordinances restricting location of ‘‘adult entertainment’’ or sex-oriented business, 10 ALR4th 524; 10 ALR5th 538. Validity of ordinance restricting number of unrelated persons who can live together in residential zone, 12 ALR4th 238. Validity of zoning or building regulations restricting mobile homes or trailers to established mobile home or trailer parks, 17 ALR4th 106. Zoning regulations limiting use of property near airport as taking of property, 18 ALR4th 542. Validity of local beachfront zoning regulations designed to exclude recreational uses by persons other than beachfront residents, 18 ALR4th 568. Local use zoning of wetlands or flood plain as taking without compensation, 19 ALR4th 756. Applicability and application of zoning regulations to single residences employed for group living of mentally retarded persons, 32 ALR4th 1018. Zoning: what constitutes ‘‘incidental’’ or ‘‘accessory’’ use of property zoned, and primarily used, for residential purposes, 54 ALR4th 1034. Zoning: what constitutes ‘‘incidental’’ or ‘‘accessory’’ use of property zoned, and primarily used, for business or commercial purposes, 60 ALR4th 907. Addition of another activity to existing nonconforming use as violation of zoning ordinance, 61 ALR4th 724. Change in volume, intensity, or means of performing nonconforming use as violation of zoning ordinance, 61 ALR4th 806. Change in type of activity of nonconforming use as violation of zoning ordinance, 61 ALR4th 902. Alteration, extension, reconstruction, or repair of nonconforming structure or structure devoted to nonconforming use as violation of zoning ordinance, 63 ALR4th 275. Zoning regulation of intoxicating liquor as pre-empted by state law, 65 ALR4th 555. Zoning: residential off-street parking requirements, 71 ALR4th 529. Validity and construction of zoning laws setting minimum requirements for floorspace or cubic footage inside residence, 87 ALR4th 294. Activities in preparation for building as establishing valid nonconforming use or vested right to engage in construction for intended use, 38 ALR5th 737. Applicability of zoning regulations to governmental projects or activities, 53 ALR5th 1.

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