Posted by: Patricia Salkin | September 17, 2016

GA Appeals Court Holds Failure of Owner to Perfect Service of Process on ZBA in Connection with Petition for Certiorari in Trial Court Did Not Render Petition Void

This case arose from a discretionary appeal application by the City of Dunwoody from a judgment of the DeKalb County Superior Court, which reversed the decision of the City of Dunwoody Zoning Board of Appeals.  The decision pertained to a dispute regarding whether the proposed use of property controlled by Discovery Practice Management, Inc., d/b/a Center For Discovery and DV Dunwoody, fit within the existing zoning classification of the district where the property is located. The ZBA determined that the City’s earlier classification of Discovery’s proposed use of the property as a family personal care home was erroneous. The Superior Court reversed the ZBA’s determination, and thereby reinstated the classification. On appeal from the Superior Court order, the City argued that the Superior Court erred by: denying its motion to dismiss a renewed petition for certiorari Discovery had filed pursuant to OCGA §§ 5–4–3 and 9–2–61 (a); and reversing the ZBA’s decision.

Discovery filed its first petition for writ of certiorari in the Superior Court within the 30–day limitation period of OCGA § 5–4–6 (a). Pursuant to OCGA § 5–4–6 (b), the petition and writ were required to be personally served upon the ZBA, as respondent-in-certiorari. The parties did not dispute that service of the petition and writ were perfected on the City; however, the City disputed service on the ZBA, and Discovery voluntarily dismissed the action. At the time of dismissal, no judicial determination had been entered on the petition. Soon thereafter, Discovery re-filed the petition for writ of certiorari, citing OCGA §§ 5–4–32 and 9–2–61 (a). The City filed a motion to dismiss the re-filed petition on the basis that it was void ab initio because the original petition and writ were never properly served on ZBA pursuant to OCGA § 5–4–6 (b) before the action was dismissed and, therefore, the dismissed action was void and not subject to renewal under OCGA § 9–2–61 (a). The court determined that although the requisite personal service pursuant to OCGA § 5–4–6 was not perfected upon the ZBA, the lack of personal service as to ZBA did not render the petition void and, thus, a bar to renewal as it could be renewed pursuant to OCGA § 9–2–61.

The court next addressed the City’s argument for reversing the ZBA’s decision by ruling that neighbors were not entitled to notice of the city planner’s classification decision. However, the ordinance explicitly provided that use of property as a family personal care home was permitted as of right in the residential zoning district where the property was located. Furthermore, it was undisputed that the plain language of the ordinance did not require that neighboring property owners be given notice of a city official’s decision that a homeowner’s stated proposed use for his/her property was permitted under the existing zoning classification as a matter of right. Accordingly, the court held that the ZBA erroneously construed the ordinance despite its plain language.

City of Dunwoody v. Discovery Practice Management, Inc., 2016 WL 3865868 (GA App. 7/14/2016)

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