Greater Atlanta Homebuilders Ass'n v. DeKalb County

Fletcher, Chief Justice.

This case involves a constitutional challenge to DeKalb County’s Tree Ordinance. The trial court upheld the statute. Because the Tree Ordinance is not invalid as alleged by appellants, we affirm.

In February 1999, DeKalb County’s Board of Commissioners passed a comprehensive Tree Protection Ordinance. The ordinance recognizes “the many benefits that can be directly attributable to trees” and that regulation of tree preservation “is necessary for the preservation of the public health, safety, general welfare, environment and aesthetics.” The County concluded that new regulations were needed in order to “provide proper and sufficient regulation of the removal and/or replacement of trees as part of land development.” Three weeks later, Greater Atlanta Homebuilders Association, a nonprofit trade association whose members develop real property and engage primarily in the construction of single-family residences, and RLR Associates, a corporation that owns property in DeKalb County and is involved in the development of real property and residential construction, filed this action challenging the ordinance.

Zoning Procedures Law

1. Appellants contend that the Tree Ordinance and its four amendments are invalid because they were not enacted in accordance with the Zoning Procedures Law, OCGA § 36-66-1 et seq., which imposes minimum due process standards upon local governments when they adopt or amend zoning ordinances.1 A zoning ordinance is one that establishes “procedures and zones or districts . . . which regulate the uses and development standards of property within such zones or districts.”2 Whether a local regulation is a zoning ordinance subject to the ZPL is determined by evaluating the reg*296ulation “as a whole to determine whether or not it involves dividing a governmental unit into zones or districts and applying different standards to such zones or districts in regard to property therein.”3

In applying this standard, we conclude that the Tree Ordinance, viewed as a whole, does not regulate according to zones or districts. Instead the Tree Ordinance applies uniformly to all land in unincorporated DeKalb County by regulating the effect that development will have on tree coverage in the County. The Tree Ordinance applies to every building and development permit that allows land disturbance, regardless of the zoning district. The Tree Ordinance contains only three references to zones or districts.4 These limited references to districts do not turn the ordinance into a zoning ordinance in light of the fact that the majority of the ordinance’s requirements apply uniformly to all land and to all land disturbance activities regardless of the location of that land within the County.

Takings Claims

2. Appellants contend that the Tree Ordinance effects a regulatory taking of their property without just compensation in violation of the Georgia and federal constitutions.5 The County contends that this challenge to the Tree Ordinance is not ripe for review because appellants have not exhausted administrative remedies. In determining ripeness, it is important to distinguish between “as applied” and “facial” challenges. “Before litigants seek a declaration by a court of equity that a[n] . . . ordinance is unconstitutional as applied to their property, they must apply to the local authorities for relief.”6 Facial challenges, however, have no ripeness requirement.7 Appellants have not shown that the Tree Ordinance has been applied to them in any way, and therefore, raise a facial challenge rather than *297an “as-applied” challenge. Accordingly, appellants’ taking challenge is properly before the Court.

3. (a) In order to succeed in their facial challenge, appellants must show that the “ordinance does not substantially advance legitimate state interests ... or denies an owner economically viable use of his land.”8 The Supreme Court has noted the “uphill battle” faced by a party bringing such a challenge.9 Appellants do not contend that the Tree Ordinance fails to substantially advance a legitimate state interest. Therefore, we focus on the second test — whether the ordinance deprives appellants of any economically viable use of their land.

Courts generally conclude that so long as an ordinance allows some permissible use, a party will not be able to satisfy its burden of showing a complete lack of economically viable use.10 For example, in Pope v. City of Atlanta,11 this Court held that the landowner had not demonstrated the existence of a taking where she was prevented from building a tennis court within a stream corridor because the land use regulation did “not deprive her of all her rights in the property.” Similarly, the Tree Ordinance does not destroy appellants’ ability to develop its land; it only regulates the way in which new and existing trees must be managed during the development process. Appellants have failed to show that the Tree Ordinance destroys its ability to develop land, and the trial court’s finding that appellants have not been deprived of all economically viable use is not clearly erroneous.

While the Tree Ordinance may impose some additional costs and thus diminish the ultimate value of appellants’ land, “[m]any regulations restrict the use of property, diminish its value or cut off certain property rights, but no compensation for the property owner is required.”12 Furthermore, the Tree Ordinance provides for special *298exceptions and administrative appeals, which several courts have noted is sufficient to defeat a facial taking claim.13

(b) Appellants’ reliance upon Dolan v. City of Tigard14 is misplaced. In Dolan, the United States Supreme Court placed the burden of justifying a land-use determination on the local government and required a showing of “rough proportionality” between the taking and the legitimate state interests. Dolan, however, is inapposite because it was an as-applied challenge to a City’s requirement that an owner deed portions of her land to the city.15 In contrast, this case involves a facial challenge to a generally applicable land-use regulation. Additionally, in Parking Assn. v. City of Atlanta, we rejected applying Dolan in the context of an adjudicative decision rather than a legislative determination.16 Accordingly, we do not undertake Dolan’s analysis.

(c) We need not dwell long on appellants’ contention that a different analysis applies because each tree is a deedable piece of real property The United States Supreme Court has characterized the approach appellants urge as “quite simply untenable”17 because “ ‘Making’jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated.”18 Thus, in Keystone Bituminous, the Supreme Court rejected the argument that the takings analysis was altered by the fact that, under Pennsylvania law, the “support estate” is a separate interest in land that can be conveyed apart from any other interest.19 Similarly, the takings analysis is not altered in this case by the fact that each tree may be considered a separate property interest.

*299(d) Finally, appellants argue that the Tree Ordinance constitutes a taking because it renders commercial timber harvest impractical. Appellants, however, have presented no evidence that any land has been “taken” by the Ordinance’s effect on the commercial timber harvest.20 Furthermore, there is no evidence that the Ordinance has “taken” the livelihood of anyone who engages in commercial timbering.

Accordingly, we affirm the trial court’s grant of summary judgment against appellants’ takings claim.

Due Process Claim

4. Appellants also contend that the Tree Ordinance violates due process by failing to provide ascertainable standards to guide the discretion granted to the County arborist in the tree protection plan approval process. This claim, however, is not ripe for review. Except in the context of protected First Amendment activity, a person seeking a permit will not be heard to complain that the regulation is vague until he has actually sought and been denied the permit.21 This Court has similarly held that a party lacks standing unless he can show “that the allegedly unconstitutional feature of the statute . . . has infringed his rights.”22 In light of these bedrock principles, our consistent practice has been to address the sufficiency of standards to guide administrative discretion only in appeals stemming from the denial of a permit or license.23 Because appellants cannot show any injury stemming from the allegedly vague provisions of the Tree Ordinance, these claims are premature.

Preemption Claim

5. Appellants also assert that the Tree Ordinance as a whole is preempted by OCGA § 12-6-24, which relates to commercial timber harvesting. Pretermitting whether appellants, who do not engage in commercial timber harvesting, have standing to assert this challenge,24 we conclude that the state law does not preempt the Tree *300Ordinance. The legislature amended OCGA § 12-6-24, effective June 3, 2003, to demonstrate its clear intent that it “shall not preclude counties . . . from enacting and enforcing tree ordinances.”25 The statute applies only to “timber harvesting operations which qualify as forestry land management practices or agricultural operations . . . not incidental to development, on tracts which are zoned for or used for forestry, silvicultural, or agricultural purposes.”26 Because the only regulations in the Tree Ordinance that relate to timber harvesting are incidental to development, there is no preemption.

Criminal Liability

6. Finally, appellants contend that the Tree Ordinance is invalid because it imposes strict criminal liability. As recognized by the trial court, however, any party cited for a violation of the Tree Ordinance will have the opportunity in Recorder’s Court to show why he has not violated its provisions. Therefore, no strict liability exists.

Judgment affirmed.

All the Justices concur, except Sears, P. J., and Carley, J., who dissent.

Appellants’ argument treats the ordinance and its four amendments as if they had been enacted at one time, rather than treating the amendments as separate legislative actions. Compare OCGA § 36-66-3 (4) (B) and (C) (requirements of ZPL apply to adoption of individual amendments).

OCGA § 36-66-3 (5).

City of Walnut Grove v. Questco, Ltd., 275 Ga. 266, 267 (564 SE2d 445) (2002).

In four specified zoning districts, stream buffers and 100-year floodplains may be included in certain mathematical calculations; in some residential districts front yard trees are required with new construction; and landscaping density requirements differ depending on whether the property is residential or nonresidential/multifamily.

Ga. Const, art. I, § III, para. I (a); U. S. Const, amend. 5.

(Emphasis supplied.) Village Centers, Inc. v. DeKalb County, 248 Ga. 177,178 (281 SE2d 522) (1981). See also Palazzolo v. Rhode Island, 533 U. S. 606, 620-621 (121 SC 2448, 150 LE2d 592) (2001) (as-applied challenge is not ripe for review until property owner has “followed reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property”).

See Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 385 (47 SC 114, 71 LE 303) (1926); O.S. Advertising Co. of Ga. v. Rubin, 263 Ga. 761 (438 SE2d 907) (1994), overruled on other grounds, Ashkouti v. City of Suwanee, 271 Ga. 154 (516 SE2d 785) (1999).

Agins v. City of Tiburon, 447 U. S. 255, 260 (100 SC 2138, 65 LE2d 106) (1980). See also Pope v. City of Atlanta, 242 Ga. 331, 334 (249 SE2d 16) (1978) (exercise of police power in land nse regulations justified only if it is substantially related to public health, safety or general welfare).

Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 495 (107 SC 1232, 94 LE2d 472) (1987).

See Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U. S. 264, 296 (101 SC 2352, 69 LE2d 1) (1981); Agins, 447 U. S. at 262. See also Rolleston v. State of Ga., 245 Ga. 576, 579-580 (266 SE2d 189) (1980) (land use regulation does not amount to a taking where owner “is not entirely deprived of the value and practical use of his property”). Compare Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (112 SC 2886, 120 LE2d 798) (1992) (statute prevented any construction by requiring that owner’s beachfront land be left in its natural state).

242 Ga. at 337 (considering as-applied challenge).

Pope, 242 Ga. at 334. See also Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 413 (43 SC 158, 67 LE 322) (1922) (“Government could hardly go on if to some extent values incident to property could not be diminished without paying for every *298such change in the general law.”).

See Lake Nacimiento Ranch Co. v. County of San Luis Obispo, 841 F2d 872, 877 (9th Cir. 1987) (where party can apply for variance, ordinance is not overly restrictive on its face); Home Builders Assn. v. City of Napa, 108 Cal. Rptr. 2d 60, 64 (Cal. App. 2001) (where city has ability to waive ordinance requirements, no facial exists)

512 U. S. 374 (114 SC 2309, 129 LE2d 304) (1994).

Id. at 385 (distinguishing cases where regulation placed limitation on land use); Garneau v. City of Seattle, 147 F3d 802, 811 (9th Cir. 1998) (Dolan inapplicable to facial challenges).

264 Ga. 764, 766 n. 3 (450 SE2d 200) (1994) (Dolan inapplicable to legislative determinations); Dolan, 512 U. S. at 391 n. 8 (burden of proof different in cases involving adjudicative determinations).

Penn Central Transp. Co. v. New York City, 438 U. S. 104,130 (98 SC 2646, 57 LE2d 631) (1978).

Id. See also Andrus v. Allard, 444 U. S. 51, 65-66 (100 SC 318, 62 LE2d 210) (1979) (“where an owner possesses a full ‘bundle’ of property rights, the destruction of one ‘strand’ of the bundle is not a taking”).

480 U. S. at 500. See also Dept. of Transp. v. Willis, 165 Ga. App. 271 (299 SE2d 82) (1983) (in condemnation action, value of trees not considered separately from fair market value of land).

See Hodel, 452 U. S. at 295 (takings claim fails where property owners have not identified any property in which they have an interest that has been taken by law’s enactment); Keystone, 480 U. S. at 496 (rejecting facial claim where no evidence that appellants’ mining operations have been unprofitable).

Bo Fancy Productions v. Rabun County Bd. of Comm’rs, 267 Ga. 341, 344-345 (478 SE2d 373) (1996). See also Adams v. Ga. Dept. of Corrections, 274 Ga. 461, 462 (553 SE2d 798) (2001).

Love v. Whirlpool Corp., 264 Ga. 701, 705 (449 SE2d 602) (1994).

See, e.g., Suddeth v. Forsyth County, 258 Ga. 773 (373 SE2d 746) (1988).

City of Atlanta v. S.W.A.N. Consulting & Security Svcs., 274 Ga. 277, 278 (553 SE2d 594) (2001) (company licensed under state law had standing to raise as-*300applied preemption challenge to municipal ordinance that impacted license).

OCGA § 12-6-24 (e) (3); Ga. Laws 2003, p. 578.

OCGA § 12-6-24 (e) (4) (A); Ga. Laws 2003, p. 578.