Posted by: Patricia Salkin | May 21, 2021

GA Appeals Court Concluded the Setback Requirements Did Not Constitute a Regulatory Taking by the City

This post was authored by Olena Botshteyn, Esq.

In 2017, Rose purchased a 1.17-acre parcel of land in Atlanta (“City”). The zoning regulations require a 60-foot front setback on the property. There is also a 100-year floodplain and several sewer easements and sewer lines, which make building on the large part of the land impossible. Rose applied for a variance from the setback requirement, but the City denied the application. Rose then commenced a legal action, asserting a claim for inverse condemnation and stating that the City’s setback requirements have deprived it of all economic use of the property. The City moved for summary judgment, which the trial court granted, having concluded that the setback regulations themselves did not provide Rose a basis for a claim, rather the land was undevelopable because of the natural flood. Rose then filed an appeal with this court.

On appeal, the court affirmed the decision of the trial court. Rose asserted that the 60-foot setback makes it impossible for him to build on his property and that the City deliberately imposed such setback requirements to keep the property undeveloped for a public purpose. The court concluded that both these claims fail. When analyzing whether a regulatory taking claim occurred, the court looks at a parcel as a whole. The setback restriction only prevented Rose from building on a portion of the property that is within the 60-foot setback. It is not the setback that prevents him from building on the remaining part of the property, but the 100-year floodplain and sewer easements. The setback requirement is therefore not, by itself, the reason why the property cannot be used to its economic benefit. The court further stated that the claim that the City denied Rose a variance so that it could use the property for a public purpose does not survive summary judgment, as the trial court upheld the denial of Rose’s variance request. The court thus affirmed.

D. Rose, Inc. v City of Atlanta, 2021 WL 2010139 (GA App. 5/20/2021)


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