Posted by: Patricia Salkin | July 1, 2021

GA Appeals Court Finds Appellant’s Lawsuit Over Variance and Rezoning Denials was Improperly Characterized as an Improper “Mandamus Action” 

This post was authored by Matthew Loescher, Esq.


Following the DeKalb County Board of Commissioners’ denial of Appellant Nancy Gastel’s request for a variance and then to rezone her DeKalb County property, Gastel sued both the Board and the County. Gastel sought declaratory and injunctive relief, and asserted various constitutional claims: including a purported takings claim and a Section 1983 claim. The trial court granted Appellees’ motion to dismiss, characterizing Appellant’s lawsuit as an improper “mandamus action.”

Here, the record reflected that neither Appellant’s complaint nor her amended complaint made any mention of mandamus relief; while the record did not include a transcript of the hearing on Appellees’ motion to dismiss, there was no indication in the record or in the trial court’s order – and there was no argument by Appellees – that Appellant amended or recast her complaint during that hearing. The court found that any decision on Appellees’ motion to dismiss should have been resolved on the content and sufficiency of the pleadings, and was not here. Moreover, as the trial court’s ruling was based solely on the mischaracterization of Appellant’s claims, the court declined to consider the claims actually raised in Appellant’s complaint.

Accordingly, the judgment of the trial court was reversed, and the case was remanded for proceedings consistent with this opinion.


Gastel v DeKalb County, 861 S.E. 2d 434 (7/1/2021)


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