Posted by: Patricia Salkin | November 21, 2007

Failure to Have All Seven Appointed Members Active and Present Does Not Void Historic Preservation Commission Vote in Georgia

The Georgia Court of Appeals held that the failure to have present and active all required seven members of the county historic preservation commission does not void the vote of the four members present, and further, the authorizing ordinance and by-laws provide that members shall serve until their successors are appointed and qualified.  

By a vote of three to one, the Historic Preservation Commission denied a certificate of appropriateness to subdivide three lots into five, concluding that the plans as submitted would have a substantial adverse effect on the aesthetic, historic or cultural significance and value of the historic district.  The applicants challenged the action of the Commission, in part, on the grounds that the Commission did not have the required seven members (as set forth in the county ordinance) when it rendered its decision.   

The Court of Appeals held that in Georgia, “[a] substantial compliance with any statutory requirement, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want on such compliance, unless expressly so provided by law.”  See, OCGA §1-3-1(c) Here, because the ordinance establishing the commission provides that members are to serve until their successors are appointed and qualified, and the bylaws provide that, “[d]ecisions of the preservation commission shall be by a majority of those members present and voting, a quorum being present,” and a quorum consists of a majority of the members, the Court found substantial compliance.  Although it may have been a number of years since the three other members of the Commission actively participated, the Court said that “Whoever the missing members are, the ordinance and bylaws provide that they continue to serve.” Further, the Court noted that neither the State Historic Preservation Act nor the County ordinance provide that failure to have seven active members on the Commission invalidates a decision of the Commission.    

Dekalb County v. Buckler, 2007 WL 3307235 (Ga. App. 11/9/2007).

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