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Judge declares zoning board unconstitutional

By Jarred Schenke
The Macon Telegraph

The Macon-Bibb County Planning and Zoning Commission is unconstitutional, a Bibb County Superior Court judge has ruled.

In a 50-page ruling issued Tuesday in a 2-year-old lawsuit, Judge Phillip Brown wrote that the current method of requiring at least three of the zoning commission's five members to live inside the Macon city limits short-changes county residents by not providing equal protection in zoning decisions.


'It appears that the constitutional guarantee of equal protection to residents of the unincorporated area of the county is violated.'
- Phillip Brown, Bibb County Superior Court Judge

'It may be that this could become an elected office.'
Joni Woolf, zoning commissioner

'In so many cases around the country when you have (elected) planning and zoning (commissions), you have corruption.'
Larry Justice, Bibb County Commission chairman

'If they're not making decisions on behalf of the people, there should be some recourse. And that recourse is at the ballot box.'
Mayor Jack Ellis

'I feel our present system will stand on appeal.'
David Mann, zoning commissioner

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He also criticized the way zoning commission members are selected and appointed.

"The extent of the impact of this decision is left primarily for future determination," Brown stated in the ruling. "However, this still leaves open the possibility of important civic zoning needs being unmet if the problem with the makeup of the commission persists."

Connie Cater, zoning commission chairman, said, "I'm not surprised with the ruling (Brown) made. We sort of expected that."

P&Z attorney Hale Almand said Brown's decision likely would be appealed.

While precedent setting, the ruling falls short of requiring the zoning board to disband altogether and convene an entirely different body to decide on future land uses. However, the judge did list several options that political leaders need to consider to form what Brown sees as a commission that complies with the state and U.S. constitutions.

Brown's ruling came in a case filed by attorney Robert Lovett that challenged a rezoning decision made by the commission in 1998. The rezoning would have allowed a combined nursing home and Alzheimer's/dementia care facility at 210 Bass Road, near the intersection with Zebulon Road.

Brown's ruling overturned that decision, leaving the property zoned residential. He said a "constitutional zoning commission" may revisit the issue at a later time.

But the bulk of his ruling dealt with the constitutionality of the zoning commission itself.

According to Brown, the commission makeup violates the "one-man, one-vote principle" through an inequality in representation. He argued that since the zoning board is a legislative body - creating laws through its land-use decisions - it must represent both county and city residents equally. He said the city residency requirement for three of the commission's five members gives greater potential political pull to city residents then county.

"City residents have twice the voting impact of county-only residents into appointment of zoning commissioners. This is what one would expect since city residents vote for two appointing bodies (the City Council and County Commission), whereas county-only residents only vote for county commissioners," Brown stated. "It appears that the constitutional guarantee of equal protection to residents of the unincorporated area of the county is violated."

Brown listed several options for revamping the zoning commission and re-forming it in a constitutional manner, including:

• Implementing a system where the city and the county have their own zoning boards, sharing staff and offices.

• Creating a county-only zoning board, appointed only by the county, with jurisdiction over the entire county. Members would be appointed from districts.

• Forming a combined board where city appointees vote on city property, county appointees on unincorporated property, and the combined panel on property covering both territories.

In any system, Brown highlighted aspects that would need to be corrected to pass constitutional muster in the future, including:

• The appointment procedure should allow citizens to nominate a candidate, and allow for "some political input into the selection of commissioners from among the candidates."

• The city should not appoint a controlling number of commissioners to zone property outside the city limits.


Most P&Z officials remained noncommittal about Tuesday's ruling. But those interviewed said they were not surprised by the development.

"It's the kind of thing that's been talked about a long time, and we could see it coming," said zoning Commissioner Joni Woolf. "It may be that this could become an elected office."

Almand said he intends to advise the zoning board to continue voting on land-use issues at future meetings.

"My recommendation to the commission is that it is business as usual until this matter is resolved through appropriate proceedings," Almand said.

Brown pointed out in his ruling that only the Bass Road zoning decision was being voided. He was not "voiding any previous zoning decisions or zoning districts," nor was he voiding "all future acts" of the commission.

"The present zoning board may continue and its actions may be unchallenged or inadequately challenged," he wrote.

Zoning commissioner David Mann said it would be a mistake to revamp the current system.

"I assume, have an election, but it'll change the matrix of this entire thing. And politics will really enter in this thing, and that will be a shame," Mann said.

And he added, "I feel our present system will stand on appeal."

Bibb County Commission chairman Larry Justice said the current system is successful at preventing politics from slipping into zoning and land-use decisions.

"To me, that makes a lot of sense," Justice said. "A lot of people over the years have said everything should be elected, but I don't concur with that. In so many cases around the country when you have (elected) planning and zoning (commissions), you have corruption."

Macon Mayor Jack Ellis called Brown's ruling "good news," saying he would rather see land-use votes for city property handled by the City Council.

"The people on (the zoning commission) are good people. However, I feel that elected officials should be held accountable," Ellis said. "If they're not making decisions on behalf of the people, there should be some recourse. And that recourse is at the ballot box."

And Ellis said he doesn't agree that the current system entirely removes politics from the decision-making process.

"You did not remove politics from it even though you removed the (election process)," he said.

Lovett was pleased that his case was successful, he said.

"I think it's high time that the planning and zoning commission is responsive to all the people of Bibb County and not just a select few," Lovett said.

To contact Jarred Schenke, call 744-4347 or e-mail





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