Opposition Brief — Irvin v. Rabun County

pupreme LOUMT, U.o.

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OCT 9 1986

JOSEPH F. SPANIOL, JR.

») OLERK

No. 86-371 .

IN THE SUPREME COURT OF THE UNITED STATES

Term, 1986

JOHNNY M. IRVIN AND DAVID L. IRVIN

Petitioners,

VS.

RABUN COUNTY, GEORGIA, ET AL,

Respondents.

ON WRIT OF CERTIORARI

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

FRANK W. ARMSTRONG

STEWART, MELVIN & HOUSE

P. O. Box 430

200 Main Street, 6th Floor

Gainesville, Georgia 30503

(404) 536-0101

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QUESTIONS PRESENTED

Respondents fundamentally disagree

with the petitioners' statement of ques-_

tions presented. The only decision by

the courts below was that the plaintiffs'

taking claim was not ripe for resolution

in light of Williamson County Regional

Planning Commission v. Hamilton Bank of

Johnson City, 473 U.S. _, 105 S.Ct.

3108, 87 L.Ed.2d 126 (1985). Therefore,

questions 1, 2, 4 and 5 presented by

petitioners are not subject to review

by this court.

Respondents contend that the only

question presented is:

l. Have Petitioners availed them-

selves of alternate procedures for

variances and planned development

zoning such that the matter has been

conclusively determined by the county

(i)

commission?”

Should the court decide that the

lower court misapplied Williamson, the

only question remaining is:

2. Whether the trial court erred

in refusing to grant petitioners a

summary judgment.

(ii)

PARTIES TO THE PROCEEDING, OPINIONS,

JURISDICTION, AND CONSTITUTIONAL

PROVISIONS AND STATUTES

Respondents accept the parties to

the proceeding, the citations to the

opinions and judgments delivered in the

courts below, the statement of grounds

on which the jurisdiction of this Court

is invoked, and the constitutional

provisions and statutes cited, all of

which are provided in the Petition for

Certiorari.

In addition, respondents furnish a

more comprehensive excerpt of the

planned development provisions of the

zoning ordinance as Appendix "A",

(iii)

TABLE OF CONTENTS

QUESTIONS PRESENTED ..cccccccecceceeeld

PARTIES TO THE PROCEEDING...-+eeeeeiil

STATEMENT OF THE CASE..cceccevevcccvel

SUMMARY OF ARGUMENT. .ceeccceceeceseeed

REASONS REVIEW SHOULD NOT BE

| i a ere ae eee ee

1. The Courts Below Have

Correctly Ruled That The Taking

Issue Is Not Ripe For

Determination. cecccccccccccsecssccsed

2. Even If The Trial Court Erred

In Dismissing The Case For Lack Of

Jurisdiction, It Did Not Err In

Refusing To Grant Petitioners’

Summary Judgment. .cccesereseeseeeeed

3. Conclusion. cc ccccccccccccsscseeed

APPENDICES

(iv)

TABLE OF AUTHORITIES

Cases Pages

Agins v. Tiburon, 447 U.S. 255,

65 L.Ed.2d 106, 100 S.Ct. 2138

oy | LPP eerrerTPCre rr Tee rT Te Te ee

Armstrong v. U.S., 364 U.S.

40, 80 S.Ct. 1563, L.Ed.2d

1554 Oi: gp Prerrer rr Ce Tere eee

Barrett v. Hamby, 235 Ga. 262,

219 S.E.2d 399 Gi >. | eee

Bi-metallic Investment Co. v.

State Board of Equalization

of Colorado, 239 U.S. 441,

36 S.Ct. 141, 60 L.Ed 372

CEGRST 6 0 008s 60860 Cbs tee ennereneel

Goldblat v. Town of Hemstead,

369 U.S. 590, 82 S.Ct. 987,

8 L.Ed.2d 130 eo) SPP eeReReET eT. Ct

Hadacheck v. Sebastian, 239 U.S.

394, 36 S.Ct. 143, 69 L.Ed

348 CAD) ooaes BSW 0040460 cee eek

Matthews v. Eldridge, 424 U.S.

319, 335; 96 S.Ct. 893, 903;

47 L.-Ed.2d 18 CRPe) steeecessuseel

Nectow v. Cambridge, 277 U.S.

183, 188, 72 L.Ed 842, 48 S.

Ct. 447 Bo 5 eee ee ee eee

Patsy v. Florida Board of Regents,

457 U.S. 496, 73 L.ED.2d 172,

102 S.Ct. 2557 CiSEZccovceoesesen

(v)

Penn Central Transportation

Company v. New York City, 438

U.S. 104, 123-24, 98 S.Ct.

2646, 2659, 57 L.Ed.2d 631

(1978) cccccccccccccvcccvececccce 596

South Gwinnett Venture v. Pruitt,

491 F.2d 5 (Sth Cir.)

(En Blanc) cert. denied,

419 U.S. 837, 95 S.Ct. 66,

42 L-Ed.2d 64 (1924) cccccccceeeed

Village of Euclid V.

Ambler Realty Company, 272 U.S.

365, 47 S.Ct. 114, 71 L.Ed

303 (1926) .cccccccccccccssscccceOg/

Bi-metallic Investment Co. v.

State Board of Equalization

of Colorado, 239 U.S. 441,

36 S.Ct. 141, 60 L.Ed 372

C1IDLS) cccccccsesscescvessecosseed

Williamson County Regional

Planning Commission v.

Hamilton Bank of Johnson City,

473 U.S. , 105 S.Ct. 3108,

87 LeEd.2d 126 (1985) .cccccveveeis3e4e5

ORDINANCES

Rabun County Zoning Ordinance

Section 65. Planned Unit

Development...sesesesceveeseeelB

(vi)

SUPREME COURT OF THE UNITED STATES

is Term, 1986

No. 86-371

JOHNNY M. IRVIN AND DAVID L. IRVIN

Petitioners,

vs.

RABUN COUNTY, GEORGIA, ET AL,

Respondents.

ON WRIT OF CERTIORARI

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

To the Honorable, the Chief Justice

and Associate Justices of the Supreme

Court of the United States:

STATEMENT OF THE CASE

Petitioners’ statement of the case |

is misleading and incomplete. |

Petitioners failed to disclose that

under the existing zoning they are not

restricted to agricultural use, that |

they may develop their property to

include up to 60 residential units and

that evidence was presented to the

county commission that petitioners'

property had considerable value if

developed under the existing zoning.

Petitioners failed to disclose that

although they had specific plans for

development, they failed to avail

themselves of an application for planned

development, and that they failed to

request a variance under the existing

zoning which would permit the density

of development which they had in mind.

Petitioners also failed to disclose

that at both the hearing before the

ale

county commission and in the record

before the trial court there is

substantial evidence that the proposed

zoning is detrimental to the health,

Satety and welfare of the county,

and that the existing zoning applies to

a wide class of properties. (Appendices

B, C, D)

SUMMARY OF ARGUMENT

Petitioners constitutional claims

are not ripe for determination. If

they were, petitioners would not be

entitled to summary judgment.

alleles ees i

REASONS REVIEW SHOULD NOT BE GRANTED

1. THE COURTS BELOW HAVE CORRECTLY

RULED THAT THE TAKING ISSUE IS NOT RIPE

FOR DETERMINATION.

As did the zoning applicants in

Williamson, petitioners strenuously

argue that they should not have to

exhaust every conceivable avenue of

zoning prior to seeking, relief from the

Federal Courts. In Williamson, however,

the court in distinguishing Patsy v.

Florida Board of Regents, 457 U.S. 496,

73 L.BD.24 172, 102 S.Ct. 2557 (1982),

discussed in great detail the difference

in exhausting remedial procedures as

opposed to exhausting procedures to

determine whether the decision-maker

has arrived at a definitive position.

In holding that the latter is required,

the court observed:

",..resort to the procedure

for obtaining variances would

-3-

result in a conclusive

determination by the Commission

whether it would allow

respondent to develop the

subdivision in the manner

respondent proposed."

(Emphasis supplied)

No, the petitioners are not required

to pursue every conceivable permissible

use under the zoning ordinance, but they

are required to exhaust all procedures

which allow them to develop the land in

the manner proposed. This they have

not done. Rather, they have chosen to

apply for an R-III zoning classification

which provides for a density of

development far in excess of what

petitioners have planned.

Petitioners urge that their "offer

of compromise" two days before the

hearing is all that is required by

Williamson. Petitioners' "offer of

compromise", however, makes no attempt

to follow the procedure required to

obtain either a Planned Development or

adn

a variance. (Petitioners' Appendix B,

Respondents' Appendix A)

2. EVEN IF THE TRIAL COURT ERRED IN

DISMISSING THE CASE FOR LACK OF

JURISDICTION, IT DID NOT ERR IN

REFUSING TO GRANT PETITIONERS'

SUMMARY JUDGMENT.

Assuming, arguendo, that’ the trial

court misapplied Williamson, the question

remains as to whether the petitioners

are entitiled to a summary judgment on

the theory that (1) a taking has

occurred; and (2) the petitioners have

been denied due process or equal

protection.

This court has established two

primary criteria for determining whether

a taking has occurred. First, if the

ordinance in question applies generally

to a broad class of properties, it is

generally held no-confiscatory. Penn

pI .

Central Transportation Company v. New

York City, 438 U.S. 104, 123-24, 98

S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978);

Goldblat v. Town of Hemstead, 369 U.S.

590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962).

Second, the dimunition of value resulting

from the ordinance must be of such

magnitude to deprive the owner of the

economic benefit of his land, Penn

Central, supra; Village of Euclid Vv.

Ambier Realty Company, 272 U.S. 365, 47

S.Ct. 114, 71 L.Ed 303 (1926);

Hadacheck v. Sebastian, 239 U.S. 394,

36 S.Ct. 143, 69 L.Ed 348 (1915).

Cf: Armstrong v. U.S., 364 U.S. 40, 80

S.Ct. 1563, L.Ed.2d 1554 (1968).

The evidence is clear that all

Similarly situated land around Lake

Rabun is zoned as is the petitioners

and that a rezoning to R-III would

disrupt the established pattern of

development. (Appendix "B" and

Appendix "C") Although petitioners

speculate that that their proposed

project will be extremely profitable,

the evidence is that under the existing

zoning the land can be developed and

sold for $540,000.00 or a 222% return

on their investment in less than a

year. (Appendix "D")

Simply stated, substantive due

process and equal protection in zoning

matters depends on whether the legislative

body has based the zoning on classification

and standards reasonably related to the

public health, safety, morals and

general welfare. Agins v. Tiburon, 447

U.S. 255% 65 L.Ed.2d 106, 100 S.Ct.

2138 (1980); Nectow v. Cambridge, 277

U.S. 183, 188, 72 L.Ed 842, 48 S.Ct.

447 (1928), Village of Euclid

v. Ambler Realty Co., 272 U.S. 365,

47 S.Ct. 114, 71 L.Ed 303 (1926);

Goldblatt v. Town of Hempstead, 369

U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130

(1962); Barrett v. Hamby, 235 Ga. 262,

219 S.E.2d 399 (1975).

The record in the trial court is

replete with evidence of the adverse

impact of petitioners’ proposed zoning

On population density, automobile and

boat congestion, pollution of Lake

Rabun and depreciation of surrounding

property values. (Eg. Appendices

B, C, D, E)

Since zoning is a legislative

process, it is not subject to procedural

due process review if it applies to a

wide class of properties. South Gwinnett

Venture v. Pruitt, 491 F.2d 5 (5th Cir.)

(En Blanc) cert. denied, 419 U.S. 837,

95 S.Ct. 66, 42 L.Ed.2d 64 (1924);

Bi-metallic Investment Co. v. State

Board of Equalization of Colorado, 239

U.S. 441, 36 S.Ct. 141, 60 L.Ed 372

(1915). Moreover, petitioners had the

benefit of a public hearing, were

represented by counsel and presented

evidence. Under the tests of Matthews

v. Eldridge, 424 U.S. 319, 335; 96

S.Ct. 893, 903; 47 L.-Ed.2d 18 (1976),

the petitioners allegations of lack of

procedural due process is without

substance.

CONCLUSION

It is respectfully submitted that

review by this court is inappropriate.

Respectfully submitted,

STEWART, MELVIN & HOUSE

By:_ fame (A).

Frank W. Armstrong

Ga. Bar No. 022100

ic. 20, toahot

py: Lben WS (Sa boh sy

William H. Blalock, Jr.

Ga. Bar No. 061900

I

' Bruce Russell

Ga. Bar No. 620925

-10-

APPENDIX

APPENDIX "A"

Rabun County Official Zoning

Ordinance and Subdivision Regulations

April 1974

Section 65. Planned Unit Development

65.1 General Character:

Purpose: It is the intent of

this Section 65 to:

1. Encourage the development of

large tracts of land as planned

neighborhoods or communities;

2. encourage flexible and creative

concepts in site planning;

3. preserve the natural amenities

of the land by encouraging scenic and

functional open areas within residential

areas;

4. accomplish a more desirable

environment than would be possible

through strict application of minimum

requirements of the Ordinance;

5. provide for an efficient use

of land resulting in smaller networks

of utilities and streets and thereby

lower development and housing costs;

6. provide an environment of

stable character compatible with

surrounding residential areas.

Within the planned area, a variety

of land uses may be permitted in an

-l1A-

orderly relation to one another and to

existing land uses, as well as with

due regard to comprehensive planning in

Rabun County,

65.2 Requirements and Standards

for Approval:

1. An application for development

as a Planned Unit Development must

contain a minimum area of twenty (20)

contiguous acres.

2. The Rabun County Planning

Commission and the Rabun County Board

of Commissioners in their review of the

proposed development plan shall consider:

a) The proper relation between the

proposed development and surrounding

uses, and the effect of the plan upon

comprehensive planning for Rabun County;

b) the adequacy of existing and

proposed streets, water, sewer,

electrical and gas service, and

other public services to serve the

development;

c) the character, design, and

appropriateness of the proposed land

uses and their adequacy to encourage

desirable living conditions, to provide

separation and screening between uses

where desirable to preserve the natural

amenities of streams, wooded areas and

similar natural features;

d) the adequacy of open and play

areas and the recreation facilities

provided for the needs of the

development.

7

3. Approval and recommendation of

the Planning Commission shall be

accompanied by a report stating the

reasons for approval of the application

and specific evidence and facts showing

that the proposed Pianned Unit Development

will not adversely affect the property

adjacent to the area included in the

plan.

4. Final approval of a Planned

Unit Developmetn shall not be granted

until the owner of the property gives

written notice of his consent to the

proposed development.

65.3 Review and Approval Procedures:

1. Pre-Application Conference

Prior to filing a formal

application as Planned Unit Development,

the applicant is encouraged to confer

with the staff of the Planning Commission

in order to review the general character

of the plan (on the basis of a tentative

land use sketch if available), and to

obtain information on projected programs

and other matters.

2. Development Plan

a) an applicant shall file a

petition with the Administrative Officer

for approval as a Planned Unit Development.

This application shall be supported by

a development plan and a written

Summary of intent, and shall show the

relation between the proposed development

and the surrounding area, both existing

and proposed.

b) The following information shall

be presented:

1. A general location map,

2. Existing topographic conditions,

including coutour intervals of no more

than five feet based on field surveys

or photogrammetric methods,

3. The existing and proposed land

uses and the approximate location of

all buildings and structures,

4. The approximate location of

existing and proposed streets and

major thoroughfares,

5. The approximate location of

all existing and proposed utilities,

including a preliminary utility and

drainage plan,

6. The present zoning pattern in

the area,

7. A legal description of the

subject property,

8. The location and use of existing

and proposed public, semi-public, or

community facilities such as schools,

parks, and open area. This will include

areas proposed to be dedicated or

reserved for community or public use.

9. Perspective drawings of

representative building types except

for detached single-family dwellings

and their accessory buildings.

10. If a proposed development

creates special problems or involves

-4A-

nn ee

unusual circumstances, additional

information may be required in order to

properly evaluate the proposal as

follows:

a) An off-street parking and

loading plan.

b) An economic feasibility report

or market analysis.

c) A traffic study of the area,

and a circulation plan within the

development and to and from existing

Streets and thoroughfares.

c) The written statement submitted

with the development plan shall include

the following information:

l. A statement of the present

ownership of all land within the

proposed development.

2. An explanation of the character

of the proposed development, including

a summary of acres, dwelling units and

gross density by type of land use. The

statement shall include minimum standards

for floor area, lot size, yard and

spacing requirements.

3. A general statement of the

proposed development schedule and

progression of unit division of staging.

4. Agreements, provisions, and

covenants which govern the use,

maintenance, and protection of the

development and any common or open

areas.

5. All road rights of way shall

-5A-

be a minimum of sixty (60) feet and shall

be constructed according to the typical

sections approved by the Rabun County

Board of Commissioners. (see exhibit A

and exhibit B - Typical Section)

d) Approval

l. An application for approval of

a Planned Unit Development will be

considered administratively as a petition

for rezoning, and will be subject to

the procedures established in the Zoning

Ordinance including the requirement of

a public hearing.

2. After review and public hearing,

the Board of Commissioners may disapprove,

approve, or approve with modifications

the plan after receiving the recommendations

of the Rabun County Planning Commission.

3. If the development plan is

approved as submitted, the administrative

Officer will cause the official Zoning

Map to be changed to indicate the

Planned Unit Development. If the plan

is approved with modifications, the

applicant shall file written notice of

consent to the modifications and a

properly revised site plan with the

Administrative Officer prior to changing

the Zoning Map. The site plan and

Supporting information of any approved

plan shall be properly identified and

permanently filed with the Administrative

Officer. No building permits shall be

issued until the development plan has

been approved by the Board of

Commissioners.

-6A-

4. Revisions of Development Plan

Any major or substantial change in

the approved development plan which

affects the intent and character of the

development, the density of land use

pattern, the location or dimensions of

streets, or similar substantial changes

will be reviewed and approved by the

Board of Commissioners subsequent to

receipt of the recommendation of the

Planning Commission. A request for a

revision of the development plan shall

be supported by a written statement of

why the revisions are necessary or

desirable.

65.4 Use, Density and Other

Regulations:

1. Permitted Uses —

The uses permitted within the

Planned Unit Development shall be

primarily residential in character, and

may include the following uses:

a) Single-family detached dwellings,

b) Single-family attached dwellings,

townhouses, duplexes, or similar types,

c) Multi-family dwellings,

d) Churches, schools, community

or club facilities, and similar public

or semi-public facilities, including

recreational facilities,

e) Commercial or retail uses,

including offices and clinics provided

=} on

‘ee eta ie i ti tii b

that they meet the following criteria:

l. The location is appropriate in

relation to other land uses.

2. The proposed use is designed

so that it will primarily serve the

planned development.

f) Accessory uses to those listed

above.

g) Mobile homes and modular homes

are specifically prohibited in Planned

Unit Developments.

2. Density Controls

The maximum number of dwelling

units per acre in residential areas of

the Planned Unit Development shall not

exceed 5.5 dwelling units per acre. For

purposes of this section, density

shall be interpreted as the number of

dwelling units per gross acre devoted

to residential development. Gross

acreage shall include, in addition to

land area and parcels used primarily

for residential purposes, all open

spaces including private lakes reserved

for common usage within the Planned

Unit Development and held under private

or condominium ownership. Gross acreage

for residential development shall

exclude areas reserved or dedicated for

street right-of-ways.

Variance to Required Densities

The Board of Commissioners may allow

a higher overall density, or a higner

density of a particular residential

use provided that the applicant can

-8A-

show that such higher density will not

be detrimental to the surrounding

neighborhood. The Board of Commissioners

shall consider a variance to the

required density only on a favorable

recommendation for a specific density

by the Rabun County Planning Commission.

Land area proposed for common open

Space may be allocated to a single-

family detached, single-family

attached, and multi-family use areas

in proportion to the ratio of the

area of each use to the total area of

residential use provided that open

Space acreage allocated to a use must

be reasonably accessible to that use.

-9A~-

APPENDIX "B"

EXCERPT FROM DEPOSITION OF JACK PYBURN,

A PROFESSIONAL LAND PLANNER, TAKEN ON

FEBRUARY 8, i985

9. Now in making this investigation

have you received information ordinarily

relied upon by experts in your field in

planning and making the determination

that you made?

A. To my kncwledge I've reviewed

and assessed all the available information

that is available to me from the typical

sources in the county and related to

this project.

Q. After making your

investigation what opinion have you

formed as to the propriety -- (of the

current zoning)?

A. Well, based on my analysis my

opinion is that the current zoning is a

reasonable zoning for the subject piece

of property. It's consistent with the

topographic characteristics of the

area. The tactics that are typical in

dealing with the development of an area

-- would be such as access, the kind of

public roads, and so forth that are

required.

Q. Based on the information

received in your investigation, what

opinion have you formed as to the

=18-

propriety of the proposed zoning of the

Subject property?

A. I think the proposed zoning is

inappropriate for the site.

Q- Does the existing zoning bear

a reasonable relation to public health,

safety, and welfare?

A. I think it is a reasonable

approach in relation to public health,

safety, and welfare. I think given the

long established development pattern in

the community that current zoning allows

-- it exceeds any development pattern

that is already developed in. the

community and represents in fact'a

substantial increase over the present

level of density that's been experienced

in the area so there's a substantial

amount of capacity in the site in

addition to the established development

pattern.

I think it also has to be as

compatible as possible with the services

and responsibilities of the county and

their capatibility to provide those, to

provide services to a development as is

being proposed and I might add that --

Well, I'm sorry. Let me back up. I

think the current zoning is the most

compatible that's allowed in the current

zoning district, the most appropriate.

Q.- Will the proposed zoning have

an adverse effect on the public?

A. I think it is unreasonable and

an inappropriate zoning classification

and I think to say that not dealing

-2B-

———

specifically with what I understand the

propose development plan to be of 126

units but more what the zoning will

allow and that's more like 254 units.

That's about 405 percent increase over

the current zoning density that's

allowed.

From my observations and analysis

I found no apparent rationale for

this density or this scale of development

in this particular location over any

other similar piece of property around

the lake and for a development of this

type there aren't the typical type of

characteristics that you normally use

in making decisions like this. One is

the commercial ability of the services

for higher density such as commercial

activities.

-30-

APPENDIX "¢"

EXCERPT FROM DEPOSITION OF HARRY HAYES,

A PROFESSIONAL LAND PLANNER, PLANNING

DIRECTOR, CITY OF GAINESVILLE, TAKEN

ON FEBRUARY 8, 1985

QO. Has your investigation produced

information ordinarily relied upon by

zoners and planners in general in your

profession so as to assess the advisability

of the rezoning applied for?

A. Yes, Sir. In reviewing their

regulations in fact it seemed to be a

very typical set of zoning regulations

that's found in communities such as

this; looked in fact very similar to

the format that is normally recommended

by the Georgia mountains for communities

within their district.

Q. You can continue to describe

your investigation.

A. se e

So that based upon what I was told

and from what I saw on the zoning maps

it appeared that the predominant zoning

on the lake frontage is vacation cottage

zoning and then back behind that is an

area zoned agricultural that is not

just on the subject property but around

the lake itself.

-1t-

And so based upon the observations

that I made in field and the review of

the zoning regulations it appeared to

me that the existing zoning viewed in

the context of the existing development

that we would have there both were

compatible and that the appropriate

zoning -- given the choices that they

have that they made the appropriate

choice.

e * °

Q. What was your conclusion as to

the propriety of the R3 zoning?

A. I felt like there was not a

justified need for a change in zoning

to the R3 classification on this

particular piece of property, that it

did not have any particular characteristics

that made it different from any other

land in the area.

The fact that there was construction

continuing in the area in accordance

with the existing zoning I think

demonstrated the existing zoning is

appropriate for the area, therefore

the present zoning for the property

would be still appropriate.

Q. In your opinion, Mr. Hayes,

does the existing zoning bear a reasonable

relationship to the public health,

safety and welfare?

A. I believe that it does, yes.

Q. Would the proposed zoning to

R3 have an adverse effect to the public

-- (health, safety and welfare)?

-26-

Ae. Yes, Sir, I believe that the

proposed zoning would have several

areas of adverse effect that would be

detrimental not only to the immediate

area in terms of surrounding property

but also to the community as a whole.

—

ill

APPENDIX "D"

AFFIDAVIT

STATE OF GEORGIA

COUNTY OF RABUN

Before me this day personally

appeared Mason Whitney, who, first duly

sworn, deposes and says:

That I am a resident of Rabun

County, Georgia, am a licensed real

estate broker in the State of Georgia

(license #B-5903), have been a licensed

broker since 1968 and have been engaged

in construction and land development

since 1948.

I have examined the property

located in Land Lot 65 of the 5th Land

District of Rabun County, Georgia that

was purchased May 15, 1984, from William

B. Trautwein by Johnny Irvin, David

Irvin and Sherrel Jackson. The property

consists of two parcels, the first

being approximately 2.03 acres zoned V-C

and fronting on the shore of Lake

Rabun, the second being approximately

24.30 acres adjacent to the first parcel

and zoned Agricultural. The plat of

survey prepared by Lamar Edwards &

Associates, surveyors, is recorded in

Plat Book 18, page 292 in the office of

the Clerk of the Court, Rabun County,

Georgia.

Under the present zoning, the

owner/developer could subdivide the

730.3 feet of lake frontage into 9

=i.

vacant lots of 80 feet frontage each

and retain a 10.3 foot access strip for

the remaining back land to get to the

lake. If the owner/developer so chose,

the fair market value of the nine lots

would be aproximately $60,000.00 each

for a total of $540,000.00 without

selling any of the back land. This

would result in a gross profit for the

owner/developer of $372,500.00 over the

price they paid of $167.500.00 last May.

This would reflect in a 222% return on

their investment in a little over six months.

The back 24.30 acres could be held

for future development or best utilized

as presently zoned agricultural land

with a present fair market value of

approximately $1,500.00 per acre.

If this 24.33 acre tract is rezoned

to R-III (multi-family) the values of

existing land zoned V-C on Lake Rabun

will decrease in value due to the threat

of over crowding the entire area. In

my opinion, the existing values will be

decreased between 10% and 25% due to

rezoning for high density development.

MASON WHITNEY

Sworn to and subscribed

before me this 12th day of

December, A. D. 198

CYNTHIA WHITNEY

Notary Public

State of Georgia

My commission expires 3-4-87

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APPENDIX "E"

AFFIDAVIT OF JUD LAWS

STATE OF GEORGIA

COUNTY OF RABUN

Personally appeared before the

undersigned attesting officer duly

authorized by law to administer oaths,

JUD LAWS, who, after being duly sworn,

on oath, states as follows:

Ls

My name is JUD LAWS and I give

this Affidavit voluntarily and state

that I am competent to give this

Affidavit and that it is based upon my

own personal knowledge.

2.

I own property on Lake Rabun and on

Lake Rabun Road and live here with my

wife and child as a full-time, year-

round resident. My property is located

approximately two (2) miles via Lake

Rabun Road from Mr. Irvin's property.

3.

I am familiar with the number of

boats on Lake Rabun as I go onto the

Lake nearly every day, year-round, with ;

my family. I have personally, on more

than one occasion within the last six

months, made an actual count of the

number of boats on Lake Rabun and that |

number is 553 power, 91 non-power.

-l1E-

4.

In addition, I am familiar with

the number of boats that are launched

at the public launch ramp and at the

launch ramp at Hall's Boat House by non-

residents of the Lake and that number

averages 10 on any given weekend between

April 1 and October 1.

5

The total number of boats which

may potentially be used on any given

weekend during the summer is 175.

6.

The total square acreage of watez

On Lake Rabun is _______ Square acres,

This means that, on a given weekend in

the summer, there are boats per

acre in use.

7%

If 126 condominium units are built

as proposed on Mr. Irvin's property,

and if it is assumed that each unit

Owner will have a boat (this does not

take into consideration time-sharing

and the fact that many families will

have two boats), there will an increase

of 25% percent of new boats introduced

to Lake Rabun.

8.

I am personally familiar with the

overcrowded condition of boat traffic

On the Lake. There are several accidents

-2E-

each summer because of the narrowness

of the Lake and the excess of boats.

In several instances, people have been

seriously hurt and skiers have nearly

been killed simply because there are

too many boats for this small lake.

9.

In addition, I am personally

familiar with the depth of water around

Mr. Irvin's property that it is in the

very shallow part of the Lake and of

the approximate ten acres in front of

the property, only one acre is navigable

for boat traffic. In addition,

approximately 100 yards away from Mr.

Irvin's property is the public beach

where swimmers are swimming very close

to this boat traffic.

FURTHER AFFIANT SAITH NOT

JUD LAWS

SWORN TO AND SUBSCRIBED

BEFORE ME THIS 10th DAY

DECEMBER, 1984.

Joan T. Bingham

NOTARY PUBLIC

My Commission Expires March 23, 1985

-3E-

2A SE IE AO ae st NS AED Biles 4 mera

ee ee

AFFIDAVIT OF MAILING UNDER RULE 28.2

AND CERTIFICATE OF SERVICE

STATE OF GEORGIA,

COUNTY OF HALL.

Before me, the undersigned authority

authorized to administer oaths, personally

appeared Frank W. Armstrong, a person

known to me, who, after being first

duly sworn, stated the following:

l.

I certify that I have applied

for membershp of the Bar of the Supreme

Court of the United States and have been

informed by the Clerk chat I will be

admitted October 14, 1986.

2.

I hereby certify that the original

and forty (40) copies of the Brief in

Opposition to Writ of Certiorari prepared

by me on behalf of Rabun County, Georgia,

Et Al, were delivered by hand, via Federal

Express, to the Clerk of the United

States Supreme Court, 1 First Street,

<> Dow

N. E., Washington, D. C. 20543, within

the time allowed for filing and

mailing took place before that time.

36

I further certify that one (1)

copy of the Brief in Opposition to Writ

of Certiorari was also served on counsel

for Petitioners by depositing a copy of

same in the United States Mail, with

proper postage prepared and affixed,

addressed as follows:

George P. Dillard

Dillard, Greer, Westmoreland

& Wilson, P.C.

Suite 375, 160 Clairmont Ave.

Decatur, Georgia 30030

This 8th day of October, 1986.

rank W. Armstrong

Sworn and subscribed

before me this 8th

day of October, 1986.

: f 4 f

c Kile ALE 4 ‘. leah

Notary Public

Georgia, Hall County

My Commission Expires: 2/15/87

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