Posted by: Patricia Salkin | July 9, 2016

GA Appeals Court Holds City Property Owners’ Appeal From Superior Court’s Review of Adoption of New Zoning Ordinance that Rezoned Their Property Required Appeal By Discretionary Action

In February 2014, after conducting two public meetings, the Council of the City of Roswell (the “City Council”) approved a new zoning ordinance called the Unified Development Code (“UDC”) and a new zoning map. The UDC substantially replaced the City’s existing zoning ordinance and rezoned the plaintiffs’ properties. Plaintiffs Eric Schumacher and Mike Nyden, residents and residential property owners in the City of Roswell, brought this action for declaratory and injunctive relief in the Superior Court of Fulton County to challenge the City’s approval of a new zoning ordinance and map that rezoned their respective properties. After the Superior Court granted the City’s motion for judgment on the pleadings and denied the plaintiffs’ request for an interlocutory injunction as moot, the plaintiffs filed this direct appeal.

The applicable statute, OCGA § 5–6–35 (a) (1), provides that “appeals from decisions of the superior courts reviewing decisions of … state and local administrative agencies” must be brought by application for discretionary appeal. The Georgia Supreme Court has clarified that OCGA § 5–6–35 (a) (1) applies not only to cases where a party appeals directly to the superior court from the local government’s zoning decision, but also in cases where a party collaterally attacks the local government’s zoning decision by filing an action in superior court for mandamus, declaratory judgment, or injunctive relief. Here, the plaintiffs’ amended complaint sought declaratory and injunctive relief challenged the City Council’s zoning decision to approve the UDC and new zoning map on constitutional due process and other grounds, and to have the UDC and map declared null and void and prevent its enforcement. Furthermore, none of the plaintiffs’ requests for relief were independent of the City Council’s decision to approve the UDC and map, and none of the requests for relief could be granted or denied by the superior court without affirming or reversing the City Council’s decision.

The plaintiffs next argued that they were not required to file a discretionary application because the City Council’s decision to approve the UDC and map was a “legislative” rather than an “administrative” zoning decision. The court found that a county commission’s vote on a rezoning proposal as a local administrative agency decision for purposes of determining the method of appeal, despite the fact that in other contexts, the court had held that “commissioners in voting on either a zoning or rezoning proposal are functioning in a legislative capacity.” Thus, a zoning decision that could be characterized as “legislative” in other contexts still could fall within the ambit of OCGA § 5–6–35 (a) (1).

Lastly, the court noted that there is an exception to the discretionary application requirement under OCGA § 5–6–35 (a) (1) in cases where the plaintiff who challenged the zoning decision in superior court was not a party, and could not have been a party, in the local government’s zoning proceeding. Here, while there were no specific “parties” to the two public meetings conducted by the City Council in which the UDC and map were discussed, the certified minutes of those meetings reflected that members of the public were allowed to participate and make comments before the final vote was taken. The court therefore determined that this was not a case where only certain individuals were permitted to participate in the administrative zoning proceedings, and the exception to the discretionary application requirement did not apply. Because the plaintiffs failed to comply with the discretionary appeal procedure, the court granted the City’s motion to dismiss the appeal for lack of jurisdiction.

Schumacher v City of Roswell, 2016 WL 3086089 (GA App 6/1/2016)

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