Atlanta Councilman Alex Wan would like to force adult businesses out of the Cheshire Bridge Road corridor by 2015. In 2005 the city adopted new zoning restrictions that banned all adult-related businesses from operating in the corridor, but allowed existing adult-related businesses to remain in operation. Allowing existing businesses that no longer conform to the zoning code to be grandfathered-in avoids a due process claim by the land owner. However, this is not the only option available to the city if it is adamant about changing the current use of land. Councilman Wan would like to create an amortization period in which the existing non-conforming uses could remain in business until 2015. These businesses would also have the opportunity to apply for extensions to increase the amortization period. This is perfectly legal way of changing the nature of an area to fit with the changing desire of residents.
The idea of the amortization period is to give owners time to recoup business investments and to make all necessary changes needed to conform with the new zoning requirements. This is purely out of fairness; changing restrictions on current use of land is not a taking because the city has not completely divested the property owner of achieving any rate of return – the land can still be used in a conforming way. If the new ordinance restricted a landowner from all uses, then the possibility of a taking exists. The idea of zoning is to allow cities to enforce the police powers of the state – to uphold the health, safety, and welfare of the community. Courts presume an amortization period to be valid unless the cost to the landowner is so substantial that it outweighs the benefits to the community. Assuming the ordinance goes into effect immediately, is three years (plus possible extensions) enough for business-owners to recoup investment and make necessary changes to survive? The answer is probably yes. Most of the adult-themed businesses on Cheshire Bridge have been there for many years – the longer a business has been in operation the more likely it is to have recouped the initial investment. Three years is also probably long enough to make necessary changes to either 1.) open a business that conforms with the new zoning or 2.) move your existing business elsewhere. This burden may be quite high for a heavy industrial user who needs to clean-up hazardous material or a large company with many debts and contracts that need to be satisfied. But for a simple retail venture such as an adult video store or an exotic dance club, the burden probably isn’t too high.
City planners and residents should have the ability to gradually change the look and feel of a neighborhood. The idea of grandfathering-in an existing non-conforming use is that eventually the use will no longer be sustainable and will cease to be in existence. In reality, the opposite is likely to happen: the non-conforming uses thrive because they essentially have a monopoly on the local market. Sure planners and residents want to be fair, but they changed the zoning code for a reason. The continued presence of a non-conforming use impedes a neighborhood’s ability to change and thus amortization periods are popular. Adult-themed businesses and other “noxious” uses are traditionally seen as coming under the police powers and are huge impediments to increasing land value and the desirability of a neighborhood. People simply do not want to live/open businesses next to copper mines, factories, strip clubs, etc. and the community should have some power in regulating how land is used, but it must be done fairly. This of course opens up an additional, future argument about rising land use values and displacement of current residents, but I don’t think a reasonable solution to this is problem is to maintain existing noxious uses. Forcing complete conformity to the zoning code adopted in 2005 may be what Atlanta needs to revitalize the Cheshire Bridge Road corridor and I think the proposed ordinance is a fair way for the community to accomplish this goal.