Posted by: Patricia Salkin | March 22, 2017

GA Supreme Court Holds Upholds Plaintiffs Seeking Review of the BZA’s Quasi-Judicial Decision Granting a Zoning Variance by Petition for Certiorari in the Superior Court

Kerley Family Homes, LLC was granted a variance by the City of Cumming’s Board of Zoning Appeals, and neighboring homeowners aggrieved by the variance sought to appeal the BZA’s decision by filing a complaint seeking a writ of mandamus and an injunction in the superior court. The defendants argued that they were entitled to summary judgment against the homeowners because the zoning variance decision was a quasi-judicial decision that could be challenged in the superior court only by a petition for certiorari under OCGA §5-4-1. The superior court denied summary judgment and granted both sets of defendants’ requests for certificates of immediate review. The City defendants and Kerley defendants the filed applications for interlocutory appeal in the Court of Appeals, which was transferred to the Supreme Court of Georgia.

At the outset, the court noted that the inconsistency between the local-ordinance requirement and general principles of appellate procedure law created “a trap for unwary litigants, lawyers, and judges trying to determine if appeals of zoning decisions to the superior court properly proceed by certiorari or mandamus”. The court found that the determination of whether a decision is quasi-judicial must be made under the local-ordinance requirement, because a decision that is not quasi-judicial cannot be appealed by certiorari under OCGA § 5-4-1 even if the local ordinance explicitly provides for certiorari. Moreover, the stare decisis factors weighed heavily in favor of disapproving other cases that had expressed the local-ordinance requirement in the context of zoning variances or conditional or special use permits, to the extent that these cases held that a quasi-judicial decision of a local zoning board could be appealed to the superior court by mandamus rather than certiorari based on what the local ordinance said about such appeals.
Setting aside the local-ordinance requirement, the court found that OCGA § 5-4-1 applied in this case and that the Homeowners were entitled to seek review of the BZA’s quasi-judicial decision granting a zoning variance to Kerley by petition for certiorari in the superior court, as certiorari was available and mandamus was not. As such, the court found the trial court erred in denying the City and Kerley defendants’ motion for summary judgment and allowing the Homeowners’ petition for mandamus to proceed. The court also reversed the trial court’s ruling denying summary judgment and allowing the Homeowners’ claim for an injunction to proceed, since a petition for certiorari provided an adequate legal remedy.

City of Cumming v. Flowers, 2017 WL 875041 (GA 3/6/2017)


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