Supreme Court of Georgia Decision: Public Property is NOT Immune From Zoning Laws and Regulations When a Proprietary Function is being Performed

MACON-BIBB COUNTY PLANNING and ZONING COMMISSION et al. v. BIBB COUNTY SCHOOL DISTRICT.

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DECIDED JUNE 25, 1996 -- RECONSIDERATION DENIED JULY 9, 1996 AND RECONSIDERATION DISMISSED JULY 12, 1996 -- CERT. APPLIED FOR.

In Macon Assn., supra at 488 (3), the Court recognized that in this country, the general rule granting immunity from local zoning ordinances to governmental entities is supported by essentially four traditional tests: the Superior Sovereign Test, the Governmental Propriety Test, the Power of Eminent Domain Test, and the Statutory Guidance Test.

1. The Superior Sovereign Test holds that since the state and its units and agencies occupy a superior position to municipalities in the governmental hierarchy, their exemption from municipal zoning regulation is a matter of preemption.
2. The Governmental-Propriety Test holds that property of a state governmental unit is exempt from local zoning when a governmental function is being performed but not when a proprietary* function is being performed.
3.  Cases applying the Power of Eminent Domain Test take the position that when a political unit is authorized to condemn, it is automatically immune from local zoning regulation when it acts in furtherance of its designated public function.
4. Under the Statutory Guidance Test, the courts simply look to the legislative statutes in order to glean some expression of legislative intent on the immunity question.

*  pluralpro·pri·e·tar·ies




Definition of PROPRIETARY

1  : one that possesses, owns, or holds exclusive right to something; specifically: proprietor 1

2  : something that is used, produced, or marketed under exclusive legal right of the inventor or maker; specifically: a drug (as a patent medicine) that is protected by secrecy, patent, or copyright against free competition as to name, product, composition, or process of manufacture

3  : a business secretly owned by and run as a cover for an intelligence organization