NEW LAND USE AND ZONING LITIGATION REQUIREMENTS

Posted by Hecht Walker, P.C.
Posted on November 6, 2018


By Greg Hecht and Jon Jordan for Hecht Walker PC

Land Use/Zoning Litigators, like our firm, are having to implement new tactics in zoning litigation due to stalled legislation to override recent decisions by the Georgia Supreme Court extending State and local sovereign immunity to actions for injunctive relief and declaratory judgments. A primary rational for the doctrine of sovereign immunity is to protect taxpayer dollars.  However, the recent Georgia Supreme Court decisions held that sovereign immunity goes further to also prohibit non-monetary lawsuits in Georgia courts against State and county governments, or their department or agencies by citizens simply seeking judicial review of unconstitutional governmental action. The result is that property owners have extraordinarily limited review rights and property utilization rights.

In addition, it leaves individual local government officials such as County Commissioners, Mayors and City Councilpersons as the required subject of lawsuits in their individual capacities. In Ga. Dept. of Natural Resources v. Center for Sustainable Coast, 294 Ga. 593 (2014), the Georgia Supreme Court held that sovereign immunity barred lawsuits against the State, and its departments and agencies, including County governments, seeking injunctive relief against unconstitutional actions.  Two years later, the Georgia Supreme Court held that sovereign immunity even prohibited Georgia courts from deciding the constitutionality of State laws through a declaratory judgment action filed by an aggrieved citizen.  Olvera v. Univ. System of Ga. Bd. of Regents, 298 Ga. 425 (2016).  The harsh expanse of governmental sovereign immunity has left citizens wishing to protect their constitutional rights against State and local government action with virtually no other meaningful option but to file suit against lawmakers and public officials in their individual capacities.  For example, rather than file suit against a County entity to declare a county ordinance unconstitutional, such suit must now be brought against each commissioner in his/her individual capacity.

In both Sustainable Coast and Olvera, the Georgia Supreme Court explained that,

“Our decision today does not mean that citizens aggrieved by the unlawful conduct of public officers are without recourse.  It means only that they must seek relief against such officers in their individual capacities.” Olvera, 298, Ga. 425, 427 (2016).

Movement in the General Assembly to remedy this effect by drafting legislation to waive sovereign immunity for suits seeking only prospective non-monetary relief (i.e. declaratory judgments, injunctions) stalled in the 2017 session.  Such a waiver would permit an aggrieved citizen to seek judicial review of State and local governmental actions by seeking injunctions or declaratory relief against the governmental body itself or government officials in their official as opposed to individual capacities.  The most recent bill (HB 791) however was amended to protect only State governmental officials, leaving county officials exposed to continued civil lawsuits in their individual capacities, and even this bill failed to make it to a floor vote.

The Association of County Commissioners of Georgia and the Georgia Municipal Association need to work with the Georgia Legislature as well as builders, developers and commercial property owners to solve this problem.  Otherwise, property owners, developers, and builders seeking declaratory or injunctive relief from local land use and zoning ordinances and decisions will have no choice but to sue local government officials individually as a part of their litigation.  The present state of the law requires such tactics, which are unfortunate and could be solved with legislation allowing for meaningful judicial review of State and local government decisions and ordinances by waiving sovereign immunity for suits seeking non-monetary prospective relief.

The ability of courts to issue declaratory and/or injunctive relief against State and local government actions is particularly essential to protecting against unreasonable land use and zoning decisions.   For example, we had a potential client who wanted to build a senior living center which was desperately needed, and the County Commission admitted it was desperately needed, and otherwise consistent with the surrounding land uses.  The Conditional Use Permit required for operating the senior living center was denied simply because the district Commissioner wanted the center built in another Commissioner’s district and not in his own backyard.  Meaningful judicial review is also important to protect against overreaching land use and zoning ordinances which are becoming more and more restrictive and confiscatory, taking away owners’ property rights and stifling development in the community as a whole.  We have had many clients engage our services in need of gaining relief from overreaching overlay zoning ordinances imposing development standards that prevented otherwise permitted uses by making building and development on the properties too expensive and unfeasible.  Previously, Georgia courts could consider the constitutionality of abusive land use and zoning decisions and ordinances through Declaratory Judgment actions against the County or local entity itself.  Now, as a result of the recent case law interpretations of Georgia Sovereign Immunity protection, such declaratory judgment actions must be brought against local officials in their individual capacities.

Property owners, local officials and State legislators need to work together to resolve these problems to protect individual property owners’ rights without turning constitutional review of zoning decisions into much more personal individualized lawsuits.  The Georgia Municipal Association (“GMA”) and the Association of County Commissioners of Georgia (“ACCG”) could also play a critical role in promoting and accomplishing a positive and piece of legislation protecting both land owners and local officials alike.  Until then, our firm will have no choice but to seek relief for our clients from unconstitutional land use and zoning actions through lawsuits against the public officials individually instead of against the entity they serve.  Should you have a legal matter that relates to land use, zoning, variances, permitting or takings, we would be glad to look at these matters for you and examine your potential options.

Hecht Walker P.C. Invites You to the Children’s Rights Luncheon

Posted by Hecht Walker, P.C.
Posted on


Hecht Walker PC invites you to attend the Children’s Rights Benefit Luncheon November 16, 2018 Cherokee Town Club. Reception 11:30 am and Lunch Noon

For over 22 years, Children’s Rights, Inc. a non-profit national organization, has helped to protect hundreds of thousands of children in foster care or state supervision from abuse and neglect across the country. The organization has helped these children received medical and mental healthcare and decreased DFCS and Child Welfare Attorney caseloads in order to guarantee these children receive real oversight and protection. More information about the Children’s Rights Event may be found: https://childrensrights.org/atlanta

Hecht Walker, PC invites you to attend the luncheon on November 16, 2018, at the Cherokee Town Club. Tickets and donations for the event may be purchased here: https://www.eventbee.com/v/9176538542/event?eid=187860342#/tickets.

Additionally, Greg and Cheri Hecht along with Hecht Walker PC will match all contributions for this event, up to $10,000. Thank you! Please come out to support this worthy cause.

Photo of an invitation to a luncheonDate:

Friday, November 16, 2018

Time:

Reception 11:30am – NOON
Luncheon  NOON – 1:30 PM

Location:

Cherokee Town Club
155 West Paces Ferry Road NW
Atlanta, GA 30305

Ways to Register:

  1. Purchase Tickets Online
  2. Request and complete the RSVP Form from [email protected]

About Children’s Rights:

Protecting Kids. Providing Hope. Every day, children are harmed by America’s broken child welfare, juvenile justice, education, and healthcare systems. Through relentless strategic advocacy and legal action, we hold governments accountable for keeping kids safe and healthy. Children’s Rights has made a lasting impact, protecting hundreds of thousands of vulnerable children and – with your support – we are poised to help millions more.

 

Is that Business Opportunity Real or Just a Lie?

Posted by Hecht Walker, P.C.
Posted on August 14, 2018


In the world of business, there can be many opportunities waiting to be discovered. However, there can be just as many scams and schemes out there from people trying to take your money. Telling the difference between these opportunities and schemes can be pretty hard, but there are signs that you can look out for.

Is that Business Opportunity too Good to Be True?

Many business opportunities can seem like the road to easy money, but reality doesn’t always match up to appearances. Whether it is a large business venture related to a skyscraper or new technology or a smaller deal related to flipping houses or other real estate projects. These types of opportunities may seem fairly easy with good profit margins and lots of potential, but it’s never that easy. These projects can often be a temperamental business, fluctuating with real estate markets, builder costs and underlying market pressures. This is why it is important to do a lot of research before diving into any business endeavor.

Sometimes opportunities will come with the research already built in. This happens when an acquaintance or expert approaches you with an opportunity and has all the data you need to know about it. This kind of opportunity can be troublesome because you don’t know where these facts are coming from. The person presenting this research to you could be paid to feed you misleading or false information. Always check to see if the information you are being given is on the level.

Another way schemers try to rope people into bad business opportunities is through conferences. This can be tricky because these conferences can often be genuine. However, charismatic presenters armed with success stories and testimonials can sometimes make appearances that lead people astray. Beware of promises of easy money, beware of promises of a “sure thing”, and try not to be swept up by the excitement. A room full of people enthusiastic about making a lot of money can easily affect anyone.

Being aware of the tactics, allure and excitement employed by schemers can help you avoid bad business investments. If you believe you have a claim against a dishonest partner, a person committing fraud, or think you are being taken advantage of in your business dealings, don’t be afraid to reach out Hecht Walker PC to pursue a remedy.

Hecht Lends a Hand to a Children’s Rights Watchdog!

Posted by Hecht Walker, P.C.
Posted on July 21, 2018


Over two decades ago, the New York Civil Liberties Union started a new project. This organization would go on to help file class actions in the interests of children who were mistreated in foster care. Now, that organization—Children’s Rights—is coming to Atlanta with the help of Greg Hecht.

Helping Children’s Rights Expand Across the South

At the end of May, around 25 attorneys from the Hall Booth Smith gathered for a breakfast meeting. At that meeting they were shown a presentation by Children’s Rights senior staff attorney Christina Remlin, and our very own Greg Hecht.

This presentation outlined the efforts of Children’s Rights to make life better for children living in foster care. This cause is close to Hecht’s heart, considering he and his wife adopted twin girls almost ten years ago. Their daughters had gone through seven foster placements before finding their forever family. Now, Greg works to help child welfare in whatever way he can.

This has led Hecht to spearheading fundraising and awareness for Children’s Rights as the organization tries to expand beyond its New York origins. This led to Hecht connecting the organization with his friend John Hall—one of the partners at Hall Booth Smith.

After the presentation, the local defense firm not only made office space available to Children’s Rights, it also offered pro bono help. The Atlanta branch of the nonprofit will now call the headquarters for Hall Booth Smith its home.

This update was brought to you by the hard-working attorneys at Hecht Walker, P.C.—helping the business and the people of Georgia flourish.

Why Is My Fulton County Property Assessment So High?

Posted by Hecht Walker, P.C.
Posted on July 7, 2018


Has there been new construction in your neighborhood? Though that new house, condo or business is a sign of your neighborhood’s good health, it could cause you tax problems. As Fulton County sends out this year’s property tax assessments, some homeowners are getting a big surprise. However, you still have options when it comes to handling your property taxes.

How High Will My Fulton County Property Assessment Get?

Property assessments for 2018 are coming in, and many homeowners in Fulton County are in for a real shock. That’s because their property taxes are likely going up thanks to increased home values and a delay in tax increases.

Last year, county commissioners decided to freeze property taxes for Fulton County homes. This has caused a leap in assessment values as the system shifts from 2016 values to 2018 values. This has many homeowners seeing an average property value increase of around 26 percent. Such an increase in values has left many residents paying hundreds, even thousands, of dollars in extra taxes this year.

How Can You Fight These Increases?

Luckily, there are still options for people who find their property taxes suddenly shooting up. Georgia law says that homes must be appraised at their market value. This means that getting an independent appraisal and appealing your property assessment could help.

Learn even more about property tax issues by following the real estate attorneys at Hecht Walker, P.C. Helping individuals and businesses navigate the complex laws of Georgia.

Hecht Walker, P.C. Helps Win Lawsuit Over Clayton County and Unpaid Wages for Police

Posted by Hecht Walker, P.C.
Posted on June 21, 2018


Attorney Greg Hecht from Hecht Walker, P.C. assisted Clayton County law enforcement to win a $1.5 million settlement. Georgia County law enforcement settled the lawsuit that was targeted at their police officers and sheriff’s deputies, who claimed they were suffering from unpaid wages.

Clayton County will pay the $1.5 million to about 345 current and former police and law enforcement officials for attending mandatory and unpaid roll calls. Greg Hecht reported that the roll calls would last about 15 minutes. Roll calls are important tasks for police officers, and they include look out alerts, training, information about crime trends, etc.  This settlement covers three years of roll calls, even though the practice dates back decades. Hecht explained that the settlement partially consisted lost wages as well as damages. The County Board of Commissioners Chairman Jeffrey E. Turner and the rest of the commission approved the settlement with no dispute, stating that they wanted to ensure all workers were paid equally and fairly.

Greg Hecht and our other attorneys at Hecht Walker, P.C. have represented several clients in employment disputes, including unpaid wage issues. Contact us today if you would like more information on employment law or if your business is interested in filing an employment lawsuit.

What Are Some Different Types of Dispute Resolution for My Business?

Posted by Hecht Walker, P.C.
Posted on June 7, 2018


A business may face some sort of legal dispute during its operation. These kinds of disputes might catch business owners off guard, and they might realize they need some legal assistance to solve these complicated problems. Fortunately, there are a few dispute resolution options for businesses to choose from, and whatever they choose will depend heavily on their circumstances.

What Are the Three Kinds of Dispute Resolution for Businesses?

  • Mediation: This type of resolution involves a neutral third-party, also known as a mediator. The mediator will work with both parties to reach some sort of mutually agreeable solution to the problem. This option is great for businesses that want a cheaper and faster resolution. However, it’s important to know that mediation doesn’t create a binding agreement, and either party could back out of the agreement at any time.
  • Arbitration: This type of dispute resolution is sometimes seen in business contracts as the preferred resolution. Arbitration involves each party presenting proof and data to a neutral third party, which in this case is called an arbitrator. The arbitrator will then study this evidence and decide on the correct resolution for both parties. Arbitration can be binding, which means there is no appeal permitted for either side. Whatever the arbitrator chooses is the final decision.
  • Litigation: Litigation can be considered as the most lengthy and complicated dispute resolution process, but it does have advantages over mediation and arbitration. Litigation will allow either party to summon witnesses, gather legal evidence, and cross-examine the other party. This is a great option if the business wants to seek monetary damages and believes the dispute needs to be put to an immediate stop in order to prevent any further harm. This resolution option should only be picked if one or both parties is completely unwilling to negotiate. Litigation can be expensive and take weeks, months or even longer to resolve.

The attorneys at Hecht Walker, P.C. can handle any sort of business litigation or other business disputes in the Atlanta area. Contact us today for a free consultation.

Why Have Property Tax Assessments Dramatically Increased for Fulton County?

Posted by Hecht Walker, P.C.
Posted on June 4, 2018


Fulton County commercial property owners in Atlanta are afraid that their new assessments are going to skyrocket. New tax assessments for Fulton County are expected to increase by 20% to 35% on certain properties if not more.  The city’s development pattern and certain 2017 local government actions have resulted in assessors believing that values are lagging.

The issue began a year ago when county commissioners froze residential property taxes at 2016 values. The county is now being sued for this decision, and the law currently requires all property to be appraised at “fair market value” and with “uniformity.”

The Assessors will likely argue that all property values are rising, and that demand is increasing for commercial and residential property. Commercial and residential development around and near the Beltline and other greenway projects are being used by the assessors to boost valuations. However, Hecht notes that much of the development may not result in the widespread valuation raises that the assessors are determining on a mass appraisal method. Many of the properties have individual characteristics and unique property traits that will not allow such development to raise their values in as a significant manner as the assessors proclaim. Hecht tells commercial and residential property owners to stick to their guns and to appeal their property tax values based on their unique characteristics.

If you are a Fulton County commercial property owner of properties including but not limited to warehouses, apartment complexes, lots, hotels, shopping centers, distribution centers, retail stores, service industries or other commercial enterprise who has received an unfair property tax assessment, then you are eligible to file a tax appeal within 45 days of receiving your assessment notice. Contact Hecht Walker, PC at 404-348-4881 today to discuss your potential options for starting a tax appeal.

How Can I Lower My Commercial Property Taxes?

Posted by Hecht Walker, P.C.
Posted on May 21, 2018


There are many difficult struggles involved in owning a business, and one of these is the problem of constantly making sure your business is staying profitable. If your company is in a state with a high property tax, it’s helpful to know how you can reduce your property tax burden. The last thing any business owner wants to do is to sell or close the business because of uncertainty related to managing property taxes. There are a few things you should know that may help lower your commercial property taxes as a business owner.

How Can I Keep My Commercial Property Taxes Low?

  • Understand that property tax is not a fixed cost: A big mistake that business owners might make is to treat their commercial property taxes just like their income taxes. Income tax is a fixed cost, but property tax is a variable amount. Oftentimes, a company will attempt to focus their property tax filing on making sure their taxes are being paid on time without really examining whether they’re paying a fair amount. It will be up to you, as the business owner, to decide if local taxing jurisdictions have overstated your property’s tax value.
  • Ensure your property is in the right jurisdiction and maintain correct asset records: Sometimes, certain personal property will be put under your personal name instead of your business name. If you move your property across state lines, or if certain machinery is moved or discarded, records need to be properly kept in order to avoid paying unnecessary personal property taxes.
  • Know how to classify your assets properly: There’s a big difference between taxable and non-taxable real estate and personal property. Make sure that you’re classifying each piece of personal property correctly when you report it to your tax jurisdiction.
  • Shop around in neighboring jurisdictions: If you’re building a new business, you should always keep your eye on neighboring states and different jurisdictions within a state, so you can find the best tax rate for your company.

Knowing how to keep your commercial property taxes reduced is crucial if you want to maximize your business’s potential. However, this can be a lot to handle if you’re a small business or if you’re just unfamiliar with commercial taxes. Contact the attorneys at Hecht Walker, P.C. for more information.

How Are Commercial Property Taxes Assessed?

Posted by Hecht Walker, P.C.
Posted on May 7, 2018


Depending on your location and other important factors, your property taxes will represent an important part of your overall tax payments. Property tax revenue is extremely important for a city like Atlanta’s resources and services, such as public utilities, roads, and law enforcement protection. Since property taxes are important for your city’s growth and maintenance, it’s important to know how Georgia’s local governments determine how your commercial property tax duty is assessed.

What Form of Assessment Is Used?

The most common approach for your local government to assess your commercial property taxes is to give you an income and expense form. This form will request commercial property owners to give more details on all of the income and expenses that they have acquired this past year. For your rental income, the form will ask you questions regarding your purchase of the property and if there have been any additional changes since the purchase, such as a structure improvement or structure demolition. This will help determine if there is additional property value that wasn’t accounted for in other assessments, which will then change your tax assessment. It’s also crucial that commercial property owners identify all expenses relating to their property in this form as well. Expenses can include management fees, other agency fees, any legal fees, advertising fees, payroll, insurance, utilities, supplies, repairs and maintenance, etc. Your safest bet as a business owner is to list all expenses, and then let the assessors figure out which costs are relevant or not.

Once the assessors receive your income and expense form, they use a relevant cap rate to determine what the initial value of your commercial property is. They will then take that value and calculate your expected local taxes for the upcoming year.

For commercial property owners, knowing how your local government calculates your property value will help you predict your property’s future financial worth. Knowing this process will also better prepare you for determining if you should appeal your commercial property taxes. For more information on your commercial property and taxes Contact Hecht Walker, P.C. .