Zoning is constitutional police power
Village of Euclid v. Ambler Realty Co. (1926) upheld comprehensive zoning as a valid exercise of the police power, invalid only if clearly arbitrary and unreasonable and without substantial relation to public health, safety, morals or general welfare.
Shelley v. Kraemer is a private-controls case on racially restrictive covenants; it did not strike down zoning. Kelo is eminent domain. Lucas finds a per se taking only where all economically viable use is lost.
Variance or conditional use permit
Swapping these is the most common error here.
- A variance is an authorized deviation from a dimensional rule — setback, height, lot width — where strict application creates an unnecessary hardship unique to the parcel and the neighborhood's character is not substantially altered. A narrow lot that cannot meet its setback needs one.
- A conditional (special) use permit allows a listed use compatible with the district but needing approval, such as a day-care center in a residential district.
A use question is not a dimensional hardship, neither owner needs the district rezoned, and a variance is never granted for a self-created or financial hardship.
Nonconforming uses run with the land
A nonconforming use was lawfully established before the zoning changed, and it runs with the land. The protection attaches to the land, not the person, so it survives a sale and the buyer needs no variance. Ordinances commonly bar expanding it, and may terminate it on abandonment, destruction or an amortization period. It was lawful when established, which separates it from an illegal use.
Georgia's notice rules
Georgia rule: under the Zoning Procedures Law, notice must be published in a newspaper of general circulation not less than 15 nor more than 45 days before the hearing, stating time, place and purpose; for a rezoning initiated by someone other than the government, a sign must be posted on the property not less than 15 days before. For an October 30 hearing, publication runs September 15 to October 15, and the sign goes up by October 15. "30 days" is the common wrong figure; courts void zoning actions for procedural defects.