The Rev. Joseph Howard is appealing a decision by a federal court judge in Albany to dismiss his lawsuit against the city of Albany and the Country Club Estates Homeowners Association, to the 11th Circuit Court of Appeals.
ALBANY, Ga. — A lawsuit that involves a controversial zoning move, a local minister and a homeowners group, thought settled with a federal judge’s dismissal this month, will continue after parties in the case moved to appeal the decision Friday.
The Rev. Joseph Howard is suing the city of Albany and the Country Club Estates Homeowners Association contending he lost more than $100,000 spent on a planned development when city officials chose to rezone the property, effectively preventing him from moving forward.
In Joseph Howard, et al. v. Country Club Estates Homeowners Assoc. Inc., et al, Howard is suing the city of Albany in federal court, contending his Fifth and 14th Amendment rights had been violated by the Albany City Commission when, in 2009, the board voted to rezone a piece of property the plaintiff was planning to develop after the board had approved the development.
According to court documents, Howard paid an architect and engineer $105,000 to draw up the plans for what he had anticipated would be a $2 million multifamily residential development consisting of duplexes and townhouses. After he paid that fee, the city rezoned the property from multiple-family residential district to single-family residential, in effect rendering the property “useless” for further development, Howard’s suit states.
Court documents also show that Howard had been working with an Atlanta-area financial consultant, who, in turn, sought additional financing from an unidentified Korean investor.
After two years of federal court proceedings, U.S. District Court Judge Louis Sands granted the city’s motion for a summary judgment against Howard, the property’s owner, on Oct. 5, based both on technical, procedural and substantive grounds, saying that Howard didn’t follow the prescribed method of challenging a zoning issue through state court before bringing the case into the federal realm and that he failed to show that the city’s decision had rendered the property useless.
“It is well-established that a plaintiff may only establish a Takings Clause claim if the challenged regulation or state action ‘destroys the value of the land entirely, even if temporarily, without compensating the property owner’,” Sands wrote in his opinion. “... It is undisputed that under the rezoning, plaintiffs may still develop the property as (42) single-family homes. Therefore, any assertion that the decrease in value of the subject property as a result of the rezoning rendering the subject property as ‘worthless’ is an exaggeration. While the rezoning does create a diminution in value to plaintiffs’ investment, there is no evidence that plaintiffs’ property is now useless as defined by applicable law.”
The case will now head to the 11th Circuit Court of Appeals in Atlanta.