A Big Win For Tiny Homes In Georgia

Tired of talking about the affordable housing crisis, a group of concerned residents in Calhoun, Georgia, resolved to do something about it. 

Through their nonprofit, Tiny House Hand Up, they decided to build charming small cottages on nearly eight acres of land that had been donated for that purpose. Because smaller homes cost less to build and maintain, they would naturally be affordable for more people in the community, like workers with modest incomes, first-time homebuyers, and retirees. 

True to its name, Tiny House Hand Up would offer a “hand up” on the ladder of homeownership.

Rather than applaud those efforts, the city of Calhoun stood in the way. Its zoning code banned new single-family homes smaller than 1,150 square feet from being built within city limits. And when Tiny House Hand Up applied for a variance from that requirement, the City Council denied that, too. 

But it shouldn’t be illegal to build a small house. So Tiny House Hand Up teamed up with IJ to challenge Calhoun’s ban on smaller homes under the Georgia Constitution.

And we won! A state trial court judge ruled that the city cannot ban smaller homes on Tiny House Hand Up’s land.

The ruling rests on a procedural gambit by the city that backfired spectacularly. Under Georgia’s Due Process Clause (and thanks in large part to a previous IJ victory, as described on page 10), zoning restrictions must bear a “substantial relation” to public health, safety, or general welfare. We presented evidence conclusively establishing that banning smaller homes is completely unrelated to any legitimate interest—as even the city’s attorney was forced to acknowledge at a hearing. 

Normally, that would be the whole ballgame. In a last-ditch effort, though, the city tried to argue that Tiny House Hand Up had simply applied for the wrong zoning classification for its land. The city conveniently claimed that a different classification would have allowed smaller homes. Yet the city told Tiny House Hand Up in writing years ago that the other classification also forbade smaller homes. The city then amended the code while this case was pending to make that prohibition even more adamant. 

The trial judge was not amused by that last-minute about-face. The city’s apparent lies about its zoning code, he observed, separately violated due process. Based on that, he ruled that the city is barred from applying the ban on smaller homes against Tiny House Hand Up. Thoroughly beaten, the city did not appeal.

That is a total victory for Tiny House Hand Up. It’s also a big deal for property owners who are misled by government officials. Courts sometimes hesitate to hold local governments to their word, especially on zoning matters, so the decision here helps establish a crucial safeguard against duplicitous officials. 

But there is still more work to do. Bans on smaller homes are still on the books around the country. As part of our Zoning Justice Project, IJ remains committed to fighting those bans, as well as other restrictions on property rights that needlessly drive up housing costs.

Joe Gay is an IJ attorney.