ZONING LAW AND TRIAL OF A ZONING CASE
Presented by
LINDA I. DUNLAVY
DUNLAVY LAW GROUP, LLC.
1026 B Atlanta Avenue
Decatur, Georgia 30030
(404) 371-4101
www.dunlavylawgroup.com
ZONING LAW AND TRIAL OF A ZONING CASE
By: Linda I. Dunlavy1
And Brandon L. Bowen
TABLE OF CONTENTS
I.
Page
Introduction: The Power to Zone .......................................................................... 1
II.
Proceedings before the Local Governing Body ...................................................... 2
III.
IV.
A.
Drafting and Processing an Application……………………………………………….. 3
B.
Exhaust Administrative Remedies ................................................................ 4
C.
Raise Constitutional Objections .................................................................... 5
D.
Appeal Must be Timely .................................................................................. 8
E.
Zoning Procedures Law Requirements: Take Seriously ............................. 11
F.
Follow the Open Meetings Act ..................................................................... 13
G.
Comply with the Local Charter, Enabling Act, and Local Ordinances ........ 13
Proceedings in Superior Court .............................................................................. 15
A.
File in the Local Superior Court, and Get the Parties Right ........................ 15
B.
Prepare to Prove Standing............................................................................ 19
C.
Making the Right Claims ..............................................................................20
D.
Getting Damages and Fees ........................................................................... 27
Proceedings in Appellate Court ............................................................................. 29
A.
When in Doubt, File a Discretionary Appeal Application ........................... 29
B.
Determine the Proper Appellate Court ........................................................ 32
C.
When Filing an Application, be Persuasive & Follow the Court’s Rules ..... 33
1
Special thanks to Brandon L. Bowen of Jenkins and Olson PC, who contributed major portions
of this paper.
-i-
I.
INTRODUCTION
Georgia law regarding development and land use derives initially from the State
Constitution. Since 1983, the authority to enact development and land use regulations has been
given to local government, with the General Assembly reserving the right to enact certain
procedural requirements governing the exercise of that authority. The key state constitutional
provisions, Article IX, Section II, Paragraphs I and IV, Georgia Constitution, provide (in
pertinent part) as follows:
The governing authority of each county shall have legislative power to adopt clearly
reasonable ordinances, resolutions, or regulations relating to its property, affairs, and
local government for which no provision has been made by general law and which is not
inconsistent with this Constitution or any local law applicable thereto. Any such local
law shall remain in force and effect until amended or repealed as provided in
subparagraph (b). This, however, shall not restrict the authority of the General Assembly
by general law to further define this power or to broaden, limit, or otherwise regulate the
exercise thereof. (Paragraph 1, in part).
The governing authority of each county and of each municipality may adopt plans and
may exercise the power of zoning. This authorization shall not prohibit the General
Assembly from enacting general laws establishing procedures for the exercise of such
power. (Paragraph 4).
“Zoning” is the regulation by a county or a municipality of the use of land within the
community and of the buildings and structures thereon. “Zoning” generally involves the
specification of uses that are permitted and the standards by which the uses must comply, i.e. set
backs, lot coverage, building height, etc. The Georgia Zoning Procedures Law (discussed at
more length below) states that “zoning” means:
[T]he power of local governments to provide within their respective territorial
boundaries for the zoning or districting of property for various uses and the prohibition
of other or different uses within such zones or districts and for the regulation of
1
development and the improvements of real estate within such zones or districts in
accordance with the uses of property for which such zones or districts were established.
O.C.G.A. § 33-66-3(3).
As alternatively stated by the Supreme Court of Georgia, “zoning” involves “dividing a
governmental unit into zones or districts and applying different standards to such zones or
districts in regard to property therein.” Greater Atlanta Home Builders Association v. DeKalb
County, 277 Ga. 295 (2003); City of Decatur v. DeKalb County, 256 Ga. App. 46 (2002).
However, not every land use regulation is “zoning”. Generally, it does not include a tree
ordinance (Greater Atlanta Home Builders Association v. DeKalb County, supra.); licensing
regulations (Fairfax M.K., citing Mayor and City Council of Baltimore v. Dembo, 123 Md. App.
527 (1988); historic preservation regulations (Cf. Buckler v. DeKalb County; 299 Ga. App. 465
(2009)); or other regulations not keying particular regulations by zoning district.
“Zoning” does not include the granting of variances by a quasi judicial body such as a
Zoning Board of Appeals or a Board of Zoning Adjustments. Bentley v. Chastain, 242 Ga. 348
(1978). These are quasi-judicial administrative decisions, the legal court challenge of which is
procedurally and substantively distinct from a straight zoning court challenge.
II.
PROCEEDINGS BEFORE THE LOCAL BODY
The first stage of any zoning case or administrative zoning matter (i.e. variance or
special exception request) will be the proceedings before the local body, whether of a
city or a county2. The following are issues that should be covered at this initial stage.
2
Presenting and trying special land use permits will not be included in this paper as it is the
2
A.
Drafting and Processing the Application
Whether it be a rezoning, a variance, or an application for a special exception the
approach taken in preparation of applications may be the difference between getting favorable
results and being denied. It is extremely important to file a complete and thorough application.
Be sure to thoroughly review, understand and discuss zoning maps, surrounding uses, and
zoning. Be precise, i.e. make sure your legal description closes and matches your survey. Since
requirements vary widely between jurisdictions, always check when in an unfamiliar jurisdiction
what is required. Utilize any checklists provided by zoning and planning authorities and follow
them. Use your statement of intent or impact statement not in a perfunctory manner, but as a
means to try and persuade the zoning staff who will be analyzing the application, the
neighboring property owners and the decision makers.
Subsequent to filing the application, or even before, contact adjoining property owners
and civic groups. Mail letters, set up meetings, call people - whatever it takes to get
meaningful public participation, then work on getting them to support your application prior to
the commencement of public hearings, if possible. Provide citizens and staff with well
organized, relevant information, i.e. traffic noise; environmental study where appropriate;
renderings of structures; landscape; elevations; sign and distances, photographs, etc., whatever
it takes to assist in visualizing and understanding the project. Allow your self plenty of time.
author’s understanding that this topic will be addressed by Kyle Williams in his paper.
3
The more time you spend front loading the process, the more you enhance your chances of
success.
Where permitted (i.e. quasi-legislative processes), get the decision makers in the loop,
meet with them (city councilman, commissioners, planning commissioners, NPU reps, etc.),
call them, provide supporting documents to them, ask them to neighborhood meetings and
ultimately persuade them. Make constitutional objections and file documents for the record
where needed. Hire a court reporter if one is not provided by the local jurisdiction. This is
particularly important for administrative zoning matters where the appeal is one “on the
record”. Better to spend a few bucks on a take down, than find yourself without a transcript of
the proceedings!
B.
Exhaust Administrative Remedies.
Under Georgia law, it is generally true that a party must first exhaust available
administrative remedies before taking its claim to Superior Court. DeKalb County v. Cooper
Homes, 283 Ga. 111 (2008); Little v. City of Lawrenceville, 272 Ga. 340 (2000). The purpose
of the exhaustion requirement is to allow the local authority an opportunity to decide the issue
and prevent unnecessary judicial intervention into local affairs. The rule also is intended to
promote judicial economy. See, e.g., Cooper v. Unified Government of Athens-Clarke County,
277 Ga. 360 (2003); Powell v. City of Snellville, 266 Ga. at 316 (1996) citing Village Centers v.
DeKalb County, 248 Ga. 177 (1981).
However, the mere existence of an unexhausted
administrative remedy does not always provide a defendant with an absolute defense to court
4
action. AT & T Wireless PCS, Inc. v. Leafmore Forest Condominium Association of Owners,
235Ga. App. 319 (1998).
There are long recognized exceptions to the exhaustion of remedies rule. For example, a
litigant is not required to exhaust administrative remedies when: 1) the litigant challenges the
power of the agency to issue an order; (in Leafmore exhaustion not required because litigant
challenged authority of Public Works to issue building permit contrary to conditions of zoning);
in DBL, Inc. v. Carson, 284 Ga.APP. 898 (2007) (exhaustion not required because litigant
challenged power of Coastal Marshlands Protection Committee to issue a water bottom lease); 2)
a litigant seeks to enforce a right established by the adoption of a zoning ordinance (Martin v.
Hatfield, 251 Ga. 638 (1983)); 3) the administrative remedy provided is optional (Hunnicut v.
Georgia Power Company, 168 Ga. App. 525 (1983)); or 4) to require exhaustion would be to
require a futile act (City of Albany v. Oxford Solid Waste Landfill, Inc., 267 Ga. 283 (1996);
Powell v. City of Snellville, 266 Ga. 315 (1996); Glynn County Board of Education v. Lane, 261
Ga. 544 (1991); WMM Properties, Inc. v. Cobb County, 255 Ga. 436 (1986)).
However, it is better practice to exhaust your remedies by first filing an application or an
appeal of an adverse administrative zoning decision rather than attempting to hang your hat on
these narrowly circumscribed exceptions to the doctrine.
C.
Raise Constitutional Objections.
Probably the most important thing a lawyer needs to do in the “straight zoning case” prior
to a decision thereon by the local governing body is make constitutional objections. Failure to
5
raise constitutional challenges prior to the rendering of an adverse decision will result in the
property owner being barred from challenging the zoning classification, unless the owner is
making a facial challenge. The Supreme Court has repeatedly stated that constitutional
challenges to a zoning classification cannot be brought in superior court for the first time; they
must be raised first with the local governing body. Chambers of Georgia, Inc. v. Department of
Natural Resources, 232 Ga.App. 632, 502 S.E.2d 553 (1998); Cobb County Bd. of Com'rs v.
Poss, 257 Ga. 393, 359 S.E.2d 900 (1987).
To avoid the harsh consequences of failing to raise these constitutional challenges it is
recommended that constitutional challenges become a standard part of your written zoning
application. Most jurisdictions require a statement of intent in support of your zoning request.
Include, as a matter of routine, constitutional objections (whether or not you anticipate a negative
decision) should be drafted as part of the statement of intent. For example, you need merely have
a standard “constitutional objections” section which states something similar to as follows:
The existing inconsistent zoning classifications constitute, and all zoning and plan
classifications intervening between the existing inconsistent zoning classification and that
required to develop this project would constitute a taking of the owner’s private property
without just compensation and without due process in violation of the Fifth Amendment
and Fourteenth Amendment of the Constitution of the United States, and Article I, Section
I, Paragraph I and Article I, Section III, Paragraph I of the Constitution of the State of
Georgia and the Due Process Clause of the Fourteenth Amendment of the United States
Constitution and the Equal Protection Clause of the Fourteenth Amendment to the
Constitution of the United States.
The Applicant further respectfully submits that the Board of Commissioners cannot
lawfully impose more restrictive standards upon the development of the property than
presently exists as to do so not only would constitute a taking of the property as set forth
above, but also would amount to an unlawful delegation of their authority, in response to
neighborhood opposition, in violation of Article IX, Section IV, Paragraph II of the
6
Georgia Constitution. Moreover, in the event of opposition to the proposed rezoning, the
Applicant submits that opponents do not have standing to assert opposition and can
prove no special damages as per the specially aggrieved citizen test.”
Constitutional challenges need not be made with such specificity. Under Ashkouti v.
City of Suwanee, 271 Ga. 154, 516 S.E.2d 785 (1999), the court lightened the long standing
requirements more specific requirements for the making of a legally sufficient constitutional
challenge. Applicants are not required to cite a specific provision of the constitution that is
violated and state the manner of the violation. A simple assertion that the denial of the rezoning
would violate the applicant’s constitutional rights to equal protection and due process is
sufficient. However, failure to satisfy these minimal requirements will bar the suit. Id.
It should also be noted that the courts have on occasion applied this rule to bar claims that
do not present issues of constitutional law. For example, in Trend Development Corp. v Douglas
County, 259 Ga. 425, 383 S.E.2d 123 (1989), the Supreme Court held that pleas in bar must also
be raised before the local government. In that case, the plea was res judicata based on a prior
zoning decision. Because the County did not raise the res judicata claim while the matter was
pending before its governing body, the Supreme Court held that it was waived. Similarly, in
RCG Properties, LLC v. City of Atlanta Bd. of Zoning Adjustment, 260 Ga.App. 355, 579
S.E.2d 782 (2003), in the context of an administrative appeal, the Court of Appeals held that the
local government's challenge to the standing of the challenger could not be raised for the first
time in court, and was waived because standing was not raised when the case was before the
local Zoning Board of Adjustment. The best practical advice one can take away from these
rulings is, in the utmost of caution and when in doubt file a written objection prior to any
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decision, be it a “straight zoning” or an “administrative zoning appeal”, be it a constitutional or
other objection.
D.
Appeal must be timely.
Challenges to zoning decisions must be brought within 30 days. Village Centers, Inc. v.
DeKalb County, 248 Ga. 177, 281 S.E.2d 522 (1981). This requirement can catch property
owners unawares when the rezoning at issue is one instituted by the local governing body, such
as the adoption of a new zoning ordinance and map. The new ordinance cannot be challenged
years later, without first applying for a rezoning. Wilson v. City of Snellville, 256 Ga. 734, 352
S.E.2d 759 (1987). This time limit cannot be extended by the superior courts.
The 30-day rule has been held to flow from the 30-day appeal time for appeals to the
superior court. Under that case law, the 30 days run from the decision being reduced to writing.
In some jurisdictions, that may only happen when the minutes of the meeting are adopted, which,
under the Open Meetings Act, may be weeks later at the next regular council meeting. See
Chadwick v. Gwinnett County, 257 Ga. 59, 354 S.E. 2d 420 (1987). Quite frankly, in my
practice I file any appeal within 30 days of the hearing at which the decision was made---it just
seems like the cautious and least fraught with peril way to proceed.
The 30-day requirement does not apply outside of the “straight zoning” case. If the
property owner is seeking the issuance of a building permit under the existing zoning
classification, the proper action is to file a petition for a writ of mandamus or, if specified under
the local jurisdiction’s ordinance, a certiorari petition within the time specified in the local
8
ordinance. See Martin v. Hatfield, 251 Ga. 638, 308 S.E.2d 833 (1983). This type of case is not
a constitutional challenge to a zoning ordinance, but rather the attempt to force a public officer to
do his duty. The courts view this as attempting to enforce a right established by the current
zoning, rather than a challenge to the current zoning. However, that being said, most
practitioners will bring a suit even vaguely resembling a zoning suit within 30 days to prevent a
challenge to its timeliness, and to preserve the opportunity to bring constitutional challenges.
Arguably, the 30-day time bar only applies to the denial or approval of rezoning
applications for specific property by a governing authority. See, e.g., Wilson v. City of
Snellville, 256 Ga. 734 (1987)(challenge to City’s pre-ZPL adoption of new zoning ordinance
and map brought by effected property owner 3 years after action found to be time barred because
the published newspaper notice of the proposed zoning action was adequate); Village Centers,
Inc. v. DeKalb County, 248 Ga. 177 (1981)(Zoning applicants’ complaint in equity challenging
zoning on property almost 1-1/2 years after same applicant’s rezoning request denied was time
barred under 30 day limitation); Hollberg v. Spalding County, 281 Ga. App. 768 (2008)
(adjoining land owner challenging decision to rezone a tract of land more than 30 days after the
decision was time barred even though he coupled the challenge with an alleged ZPL violation). It
does not apply where a denial of procedural due process is the crux of your case. In such
instances, Georgia courts have recognized the viability of a challenge long after the expiration of
the 30 day limit. The reasoning is that without due process, the rezoning is void and can be
challenged at any time, as it was void. Golden v. White, 253 Ga. 111, 316 S.E.2d 460 (1984).
Tilley Properties v. Bartow County, 261 Ga. 153 (1991) was decided in 1991 long after
9
establishment of the 30 day rule in Village Centers. The property owners in Tilley argued that
the entire Bartow County Zoning Ordinance was null and void because it had not been adopted
pursuant to the ZPL: 1) there was no public notice in a newspaper regarding adoption of policies
and procedures; 2) there was no public hearing on the policies and procedures; and 3) there was
no mention of the policies and procedures in the ordinance. The Plaintiff did not challenge the
defective adoption until over four years after the Zoning Ordinance was adopted. Nonetheless,
the Georgia Supreme Court held the Bartow County zoning ordinance void for failure to comply
with the challenged notice and hearing requirements of the ZPL. Tilley is still good law and
there is no reason to believe that the appellate courts of today would apply the 30-day time bar in
a similar case today. However, clarification on this issue may come from a case currently
seeking discretionary review in the Georgia Supreme Court, 400 North Landfill v. Lumpkin
County, Docket #S11D0091.
When the question is not whether the decision was valid, but what is the effect of the
decision, then the courts have also not applied the 30-day rule on the grounds that this calls for a
declaratory judgment, rather than an appeal. In Head v. DeKalb Co., 246 Ga.App. 756, 542
S.E.2d 176 (2000), there was confusion as to whether the vote actually approved or denied the
rezoning, because of particular procedural rules of DeKalb County. The county attorney offered
an opinion that the rezoning failed, and the neighbors went home happy. The developer’s
attorney convinced the county attorney that the rezoning actually did satisfy the procedural
technicalities, and so the map was changed and permits issued. It was several months before the
neighbors learned of this, when dirt started to be moved. They brought suit several months after
10
the rezoning, and were not barred by the 30-day limitation.
E.
ZONING PROCEDURES LAW REQUIREMENTS:
TAKE SERIOUSLY
In enacting the Zoning Procedures Law, O.C.G.A. Section 36-66-1 et. seq., in 1986, the
General Assembly established minimum procedures governing the exercise of zoning power by
local governments in order to assure that due process is afforded to those potentially affected by
the exercise. See, e.g., City of Roswell v. Outdoor Systems, Inc., 274 Ga. 130 (2001); McClure
v. Davidson, 258 Ga. 706, 710 (1988). These procedures provide for the advertising of the public
hearing on a requested rezoning, the installation of signs on the property and notice to
neighboring property owners within 15 to 45 days prior to the public hearing on the rezoning
request. The procedures set forth in the ZPL are mandatory; the state legislature did not “state
that the procedures were to be used as guidelines by local governments.” McClure, 258 Ga. at
710. So if a local government adopts a “zoning ordinance” or makes a “zoning decision” without
following the notice and hearing requirements of the ZPL, what are the consequences?
In McClure v. Davidson, 258 Ga. 706 (1988) for example, the rezoning of a 20-acre tract from
A-1 to B-1 was set aside due to failure to observe the advertising requirements of O.C.G.A. § 3666-4(c). The result most local governments fear came to pass in Tilley Properties, Inc. v. Bartow
County, 261 Ga. 153 (1991). There, after a rezoning application had been denied, the
unsuccessful applicant sued Bartow County on grounds that it was not required to secure
rezoning of the property because the ordinance had not been adopted in compliance with the
11
ZPL. The unsuccessful property owners urged that no valid ordinance even existed in Bartow
County since it had not, prior to adopting zoning policies and procedures, held the public hearing
required in O.C.G.A. § 36-66-5. The Supreme Court agreed, and invalidated the entire Bartow
County zoning ordinance. See, also, C & H Development, LLC, v. Franklin County, 294
Ga.App. 792 (2008). In this very recent case the Court of Appeals held that notice of public
hearing on a property owner's request for a conditional use permit, published 46 days before the
scheduled date of the hearing, was insufficient to satisfy provision of Zoning Procedures Law
requiring such notice to be published “[a]t least 15 but not more than 45 days prior to the date of
the hearing.” The county's approval of the permit following the hearing was held invalid, even
though the 45th day after publication of the notice was a Sunday. Because the hearing was not
actually noticed or scheduled for the Sunday, the 45 day period was to be measured backward
from the date of the hearing.
As a practical matter, the zoning applicant has no control over compliance with
advertising and notice provisions. However, if the applicant has any reason to believe that the
local government has messed up in following the mandates of the ZPL, it would behoove the
applicant to raise this issue with the staff of the local government and have the matter deferred if
need be to allow for the compliance with ZPL procedures rather than run the risk of a later
challenge which may lead to the voiding of the zoning action.
12
F.
Follow the Open Meetings Act.
On occasion, a rezoning or administrative zoning decision will be taken in violation of
the Open Meetings Act, O.C.G.A. § 51-14-1 et seq.Beck v. Crisp County Zoning Bd. of Appeals,
221 Ga.App. 801, 472 S.E.2d 558 (1996). “(T)he test for the applicability [of the Open Meetings
Act] is two-pronged: first, is the meeting one of a “governing body of an agency” or any
committee thereof?; and second, is the meeting one “at which official business or policy of the
agency is to be discussed or at which official action is to be taken”, Red & Black Pub. Co. v.
Board of Regents, 262 Ga. 848, 854, 427 S.E.2d 257 (1993); Jersawitz v. Fortson, 213 Ga.App.
796, 798, 446 S.E.2d 206 (1994). As such, the vote to grant a rezoning in an executive session
would be improper, even under threat of lawsuit. However, the discussion of a court decision
setting aside a rezoning in executive session is not a meeting when no official action is taken.
Gumz v. Irvin, 300 Ga.App. 426 (2009). The attorney-client exception to the Open Meetings
Act should only be used to discuss potential litigation, rather than to vote on the merits of the
rezoning decision. The applicant should ensure that the vote taken is proper, as in the event of a
challenge to the grant of the application, it may be struck down.
G.
Comply with the local charter, enabling act, and local
ordinances
All municipalities are created by a charter adopted by the General Assembly and
available and indexed in volume 42 of the Official Code of Georgia. Likewise, the Board of
Commissioners of counties were all created by enabling or organizational acts. The Acts are not
13
codified in the Georgia Code but are listed in the General Laws. These documents will often
contain the procedures governing the adoption of resolutions and ordinances, and may be
applicable to rezoning procedures. For example in Head v. DeKalb Co., 246 Ga.App. 756, 542
S.E.2d 176 (2000), the DeKalb County organizational act provided that a zoning could not be
approved without the affirmative vote of either the district commissioner or the commissioner at
large for the district wherein the property lies. Because of a change in the form of the county
government (the designation of “Super District Commissioners”), it was unclear as to whether
the organizational act had indeed been complied with when the rezoning action was supported by
the “Super District Commissioner” but not the District Commissioner. Ultimately, the court
decided that “Super District Commissioner” was not the same as “at-large commissioner” and
therefore the rezoning had not been approved under the terms of the organizational act.
In the case of Little v. City of Lawrenceville, 272 Ga. 340, 528 S.E.2d 515 (2000), the
neighbor challenging a rezoning contended the city did not follow the procedure required in its
charter for adopting a rezoning. The court held that the Zoning Procedures Law preempts any
local procedure applying to rezoning. Hence, if the provision can be seen as a procedural
provision, it may be preempted by the ZPL. However, if the ZPL does not address a particular
procedure, i.e. occupy the same field as a local ordinance provision; the local ordinance
provision must be complied with. For example, in Harden v. Banks County, 294 Ga. App. 327
(2008), a rezoning application was approved by the Board of Commissioners but later the zoning
decision was declared void by the Court of Appeals for the failure of the local jurisdiction to
14
comply with own ordinance. The local ordinance required the filing of a site plan in support of
the application for rezoning; none had been provided by the applicant. In spite of the Board’s
approval, the Court of Appeals voided the zoning action for failure to comply with its own
substantive application requirements.
However, be aware that failure to comply with mere “parliamentary rules or local
procedural requirements in the processing of a zoning application may be upheld under the
authority of South Georgia Power Co. v. Baumann, 169 Ga. 649 (1925).
III.
PROCEEDINGS IN SUPERIOR COURT
A.
File in the local superior court, and get the parties right.
1)
Straight Zoning Cases:
Zoning suits are suits in equity, and are heard in superior courts. Village Centers, Inc. v.
DeKalb County, 248 Ga. 177, 178, 281 S.E.2d 522 (1981). A zoning “appeal” of a “straight
zoning case” is not really an appeal in form or substance. It is a de novo proceeding wherein the
court determines whether the zoning decision was constitutional based upon the evidence
submitted to the trial court---not the evidence before the Board of Commissioners or the City
Council. Unlike with administrative zoning appeals, the proceeding is not limited to a review of
the record and a determination as to whether the local body committed legal error. Id. The typical
challenge is a challenge to the constitutionality of a zoning ordinance, and thus cannot be tried in
State Court. The challenge in a “straight zoning case” is always to the constitutionality of the
existing zoning, not whether the proposed zoning is constitutional or provides a higher and better
15
use. If there is a substantial gap between the existing zoning and the proposed zoning, the
aggrieved property owner may wish to allege that the intervening zoning classifications are also
not constitutional, in order to avoid having the existing zoning struck down, only to have the
local government rezone the property to an intervening classification that still does not allow the
desired use.
The straight zoning case will ultimately be decided by the judge, as the constitutionality
of a zoning decision is not a jury question. Dover v. City of Jackson, 246 Ga.App. 524, 541
S.E.2d 92 (2000). Further, the appropriate decision, if the court finds the current zoning
unconstitutional, is not to rezone the property, but only to order the property rezoned in a
constitutional fashion. Town of Tyrone v. Tyrone LLC, 275 Ga. 383, 384, 565 S.E.2d 806
(2002). This last point is one the local government attorney should keep in mind when
defending the case, because, in the event that the local government loses, the judge may order the
property rezoned in a specific manner, particularly if the parties submit proposed orders. The
court should be advised that should the existing zoning classification be found to be unlawful,
the proper remedy would be to direct that the property be rezoned by the local authority – not the
court!
“Straight zoning cases” are brought against the city or county making the zoning
decision. Suits against counties should be brought against the county. Ga. Const., Art. 9, Sec. 1,
Para. I.; see also Guhl v. Tuggle, 242 Ga. 412, 249 S.E.2d 219 (1978). Entities such as planning
commissions or boards of zoning appeals are not proper parties as they do not have the power to
zone. Riverhill Community Ass’n v. Cobb County Bd. of Com’rs, 236 Ga. 856, 226 S.E.2d 54
16
(1976). If the challenge is to a successful rezoning of other person’s property, the successful
applicant (and property owner if not the applicant) should be named as a party. Riverhill
Community Ass’n v. Cobb County Bd. of Com’rs, 236 Ga. 856, 226 S.E.2d 54 (1976). They
would have the right to intervene were they not named, and the decision needs to be binding on
them as well. If the challenge is to a successful rezoning of other person’s property, the
successful applicant (and property owner if not the applicant) should be named as a party.
Riverhill Community Ass’n v. Cobb County Bd. Of Comm’rs, 236 Ga. 856, 226 S.E.2d 54
(1976). They would have the right to intervene were they not named, and the decision needs to
be binding on them as well.
Individual city council members or county commissioners are not necessary or proper
defendants in their individual capacity. They can be named in their official capacity, but that
may be superfluous in a challenge to a rezoning denial. When mandamus is sought, however, a
public officer must be named, and the local government itself is not a proper party. See City of
Homerville v. Touchton, 282 Ga. 237, 647 S.E.2d 50 (2007) (here, failing to name a public
official resulted in the dismissal of the suit). If a claim of personal wrongdoing exists, claims
can of course be brought against individual government officials. Otherwise, officials have
legislative immunity in their individual capacity against challenges in zoning suits. Whipple v.
City of Cordele, 231 Ga.App. 274, 499 S.E.2d 113 (1998).
The proper jurisdiction is the county where the local government sits, which of course is
also where the land lies.
17
2)
Administrative Zoning Appeals
A zoning board sitting in consideration of variances, special exceptions or appeals of
administrative decisions sits in a quasi-judicial capacity (applying facts before it to the law as set
forth in the ordinance). As such, the Georgia Supreme Court has held that a local jurisdiction
may specify the method for judicial review. Beugnot v. Coweta County, 231 Ga.App. 715, 500
S.E.2d 28 (1998); Jackson v. Spalding County, 265 Ga. 792 (1995). If a specific method of
judicial review is not specified, i.e. certiorari or appeal, then mandamus is the vehicle for
appealing an administrative zoning decision. City of Atlanta v. Wansley Moving Company, 245
Ga. 794 (1980). Mandamus, under O.C.G.A. § 9-6-20 et seq., has some of its own rules,
including a very short timeframe for the hearing. As such, a well-prepared applicant can get its
case ready, file mandamus and seek a quick hearing, leaving the local government little time to
prepare.
Where certiorari is the vehicle required by the local ordinance, the practitioner is faced
with numerous procedural perils. The practitioner must be extremely careful no matter how
inane the requirements may appear to be to follow the statutory certiorari requirements to the
letter. Although it may appear nonsensical to secure a “certiorari bond” and a “certificate of
payment of costs” as required by the certiorari statute, O.C.G.A. Section 5-4-1 et seq., do so! Be
sure to secure the sanction from the judge before filing and get the clerk to issue the writ when
you file. Persist with local authorities who may be as unfamiliar with the rather bizarre
requirements to secure the necessary documents precedent to the filing. If you do not, the
consequences are flat out dismissal of your appeal. Certiorari appeals can be dismissed for
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failure to secure the bond (Duty Free Air and Ship Supply, Inc. v. Atlanta Duty Free, LLC., 275
Ga. App. 381 (2006)), even though there is no money in dispute or no potential for entitlement to
monetary damages; for failure to file a motion to compel the filing of the record below before the
expiration of the 30 days within which the statute provides for the filing of the record (City of
Atlanta v. Schaffer, 245 Ga. 164, 264 S.E.2d 6 (1980)) and for many more technical reasons.
Tread carefully---dot your I’s and cross your T’s (twice!).
Regardless of the procedural vehicle used to get your appeal of the administrative zoning
decision to the Superior Court, the court is confined to a review of the record made below and
questions of legal error. As such, it can not be over emphasized that it is extremely important to
create a solid record before the local zoning board. You do not get a second bite at the apple as
you do with the de novo “straight zoning case”.
B.
Prepare to prove standing.
Property owners have standing to file suits regarding their own property. Similarly,
persons who have an interest in property, such as a contingent contract, have been held to have
standing to bring a rezoning challenge. Gifford Hill & Co. v. Harrison, 229 Ga. 260, 191 S.E.2d
85 (1972). Recently, a devisee under a will was found to have standing even though the
administrator had not assented to the devise at the time of zoning. Hollberg v. Spalding County,
281 Ga.App. 768 (2006). The sticking point is neighbors. Neighbors do not have an automatic
right to challenge a rezoning. The courts have held that a neighbor must show that he has a
special interest different from the area in general that has been specifically damaged. DeKalb
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County v. Wapensky, 253 Ga. 47, 315 S.E.2d 873 (1984); Dunaway v. City of Marietta, 251 Ga.
727 (1983); Brock v. Hall County, 239 Ga. 160 (1977). “[T]here [are] two steps to standing:
First, that a person claiming to be aggrieved must have a substantial interest in the zoning
decision, and second, that this interest be in danger of suffering special damages or injury not
common to all property owners similarly situated. Macon-Bibb County Planning and Zoning
Commission v. Vineville Neighborhood Association, 218 Ga. App. 668 (1995). Generally the
first prong of the standing test is met if the neighbor(s) bringing the zoning challenge are
adjacent to the property in question or directly across the street. Brand v. Wilson, 252 Ga. 416
(1984). As a general proposition, neighborhood associations must own adjacent property or be
joined by individual members who do in order to meet the first prong of the standing test.
DeKalb County Bd. of Com'rs v. Druid Hills Civic Ass'n, 269 Ga. 619, 502 S.E.2d 719 (1998).
As to the second prong of the test, inconvenience and concern about reduction in property values
will not be enough. Specific, quantifiable damages of a nature distinct from those of further
flung citizens will need to be established to withstand a standing challenge.
C.
Making the right claims.
There are a number of different claims for the practitioner to consider raising in the
zoning appeal pleading.
1.
TAKINGS
In a zoning case, the most common challenge is to the constitutionality of the existing
zoning classification under a takings analysis. DeKalb County v. Dobson, 267 Ga. 624, 482
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S.E.2d 239 (1997). This is not an easy challenge, because the zoning ordinance is presumptively
valid. Id., 267 Ga. at 626; Gradous v. Bd. of Commr’s of Richmond County, 256 Ga. 469, 471,
349 S.e.2d 707 (1986). “The presumption that a governmental zoning decision is valid can be
overcome only by a plaintiff landowner’s showing by clear and convincing evidence that the
zoning classification is a significant detriment to him, and is insubstantially related to the public
health, safety, morality and welfare. Only after both of these showings are made is a governing
authority required to come forward with evidence to justify a zoning ordinance as reasonably
related to the public interest. If a plaintiff landowner fails to make a showing by clear and
convincing evidence of a significant detriment and an insubstantial relationship to the public
welfare, the landowner’s challenge to the zoning ordinance fails.” Id.
The significant detriment can be difficult to show. See Gwinnett Co. v. Davis, 271 Ga.
158, 517 S.E.2d 324 (1999) (evidence that landowner would suffer economic loss without
rezoning was insufficient to show substantial detriment). There are a number of cases which
defense attorneys can rely upon to show that a property has not suffered a significant detriment.
“[A] significant detriment to the landowner is not shown by the fact that the property would be
more valuable if rezoned, or by the fact that it would be more difficult to develop the property as
zoned than if rezoned.” DeKalb v. Dobson, 267 Ga. at 626. Delta Cascade Partners, II v. Fulton
Co., 260 Ga. 99, 100, 390 S.E.2d 45 (1990). “[E]vidence only that it would be difficult to
develop the property under its existing zoning or that the owner will suffer an economic loss
unless the property is rezoned is not sufficient to support the legal conclusion that the owner
suffers a significant detriment.” Gwinnett Co. v. Davis, 268 Ga. 653, 654, 492 S.E.2d 523
21
(1997); also, see, Holy Cross Lutheran Church, Inc. v. Clayton Co., 257 Ga. 21, 23, 354 S.E.2d
151 (1987).
The courts recognize that increasing density or intensity almost always increases value,
but that does not prove that the current zoning is unconstitutional. “[I]n zoning challenges, the
pertinent question is not whether rezoning would increase the value of property, but rather
whether the existing zoning classification serves to deprive a landowner of property rights
without due process of law. Hence, the evidence that the subject property would be more
valuable if rezoned border on being irrelevant.” DeKalb Co. v. Dobson, 267 Ga. at 626; see,
DeKalb Co. v. Chamblee Dunwoody Hotel Partnership, 248 Ga. 186, 190, 281 S.E.2d 525
(1981). The notion that a property is not zoned for its “highest and best use,” a concept
appraisers like to use, does not show that the existing zoning imposes a significant detriment.
Gwinnett Co. v. Davis, 268 Ga. at 654. Furthermore, “the fact that the property currently has no
economic return to the owners is immaterial; by definition, undeveloped property never offers
owners any economic return.” DeKalb Co. v. Chamblee Dunwoody Hotel Partnership, 248 Ga.
at 190. All this is not to say that the significant determinant requirement is an insurmountable
burden; courts can and have found a significant detriment on numerous occasions, but the
property owner will need to be prepared to put forth a detailed and compelling case on this point.
The most recent case to discuss the concept of significant detriment is Legacy Inv.
Group, LLC v Kenn, 279 Ga. 778, 621 S.E.2d 453 (2005), which was on appeal from the grant
of the local government's motion for summary judgment. There, the property owner had paid
about $12,000 per acre for land zoned for agricultural land, with the presumption that it would be
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rezoned for residential uses. When the rezoning was denied, property owner appealed, arguing
that it could not be developed in an economically feasible fashion based upon the purchase price.
The superior court found that the fact that the property owner overpaid for the property did not
mean that the zoning ordinance was a significant detriment to the property. On appeal, the
Supreme Court reversed because the evidence was that the property would have to be purchased
for no more than just over $5,000 per acre in order to be developed in an economically viable
manner, and the county's appraiser said the property was worth between $5,000 and $9,000 per
acre. Thus, giving the non-movant the benefit of all the inferences from the evidence, the
property would have to be purchased for several thousand dollars less per acre than it was worth
in order to be developed in an economically feasible manner. The court also mentioned that the
evidence was also that the property was not suited for agricultural uses; while not discussed
much by the court, this would seem to be an important piece of evidence.
In City of Tyrone v. Tyrone, LLC, 275 Ga. 383, 565 S.E.2d 806 (2002), the Supreme
Court found that part of a property subject to the appeal of a rezoning denial suffered a
significant detriment, but part did not. The property in question was partially zoned for
agricultural-residential uses, and partly zoned for office-institutional uses. The property owner
wanted it all zoned for commercial uses. The court held that there was evidence that the portion
zoned for agricultural-residential could not be developed as zoned, but there was no such
evidence as to the office-institutional portion, and so the trial court erred in finding a significant
detriment to that portion of that property. In reaching this conclusion, the Supreme Court
discussed the fact that the owner had not tried to develop the property for office-institutional
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uses, and the fact that there was evidence of a need for such property in the community and
region. The evidence needed to prove significant detriment is not that the property can make
more money with the rezoning, but that the property is not suited for development under the
existing zoning classification, such that it cannot be used in an economically feasible manner
under the existing zoning classification.
After a plaintiff shows significant detriment, he still needs to prove that the current
zoning is insubstantially related to the public health, safety, morality and welfare. DeKalb Co. v
Dobson, 267 Ga. at 626; Browning v. Cobb County, 259 Ga. 430, 383 S.E.2d 126 (1989)
(showing of detriment outweighed by public benefit of present zoning classification). This
requires proof that there is no logic to the existing zoning classification. It can be shown by
pointing to the incompatibility of the subject zoning with the neighborhood or the changing
character of the neighborhood. However, it can be difficult to prove if the property is simply on
the boundary of the zoning district, which is commonly referred to as a “fringe area.” See Holy
Cross Lutheran Church v. Clayton County, 257 Ga. 21, 354 S.E.2d 151 (1987).
The degree of consistency between the existing and proposed zoning and the
comprehensive or future land plan is a common element in this analysis. In City of Atlanta v.
TAP Associates, 273 Ga. 681, 683, 544 S.E.2d 433 (2001), the court placed great emphasis on
the fact that the existing zoning was consistent with the land use plan of Atlanta: “[T]he city’s
zoning decision is consistent with the policies and long-range planning goals for the area as
adopted in the comprehensive development plans and the Buckhead transit station report….The
fact that TAP presented evidence that its proposed mixed-use development would also protect
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the single-family neighborhood is irrelevant. The issue is not whether the city could have made
a different decision or better designation in zoning TAP’s property, but whether the choice that it
did make benefits the public in a substantial way.” 273 Ga. at 685. Thus, if an existing zoning
classification is consistent with the comprehensive plan, it is more likely to be upheld.
Takings claims are challenging to prove under Georgia law, but under federal law they
are even more so. Federal courts have held that the property owner must show that the property
has been deprived of all economically viable use. Corn v. City of Lauderdale Lakes, 95 F.3d
1066, 1072 (11th Cir. 1996). Cobb County v. McColister, 261 Ga. 876, 413 S.E.2d 441 (1992).
Federal takings claims are generally not ripe unless the state has failed to provide a remedy. A
federal claim cannot ripen if the state provides method of redress for a taking without just
compensation, and the federal courts have held that Georgia provides such a remedy. See
Bickerstaff Clay Products Co., Inc. v. Harris County, Ga., 89 F.3d 1481, 1491 (11th Cir. 1996).
Because of these holdings, the aggrieved property owner will normally want to bring the takings
claim in state court.
2.
DUE PROCESS
Due process encompasses a more limited challenge, mainly in the context of procedural
due process. Substantive due process has been held to be subsumed into takings, and so does not
typically constitute a separate challenge to a rezoning decision, but procedural due process may
be a fertile avenue to challenge a rezoning decision. The unsuccessful applicant can claim that
there was some defect in the zoning procedure, and perhaps obtain another rezoning hearing.
The applicant may also be able to challenge the adoption of the underlying zoning ordinance.
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The practitioner should consider what benefit the client will achieve from such a challenge, as
the local government can normally go back and do the same thing in a procedurally correct
manner.
Basic procedural due process requires notice and a hearing. The procedures required in
conducting a rezoning hearing have been codified in the Zoning Procedures Law, O.C.G.A. § 3666-1 et seq. The basis requirements are published and posted notice and sufficient equal time at
the hearing for all parties to speak (at least ten minutes per side). Failure to comply with the
Zoning Procedures Law may void the zoning ordinance. McClure v. Davidson, 258 Ga. 706,
373 S.E.2d 617 (1988); Tilley Properties, Inc. v. Bartow County, 261 Ga. 153, 401 S.E.2d 527
(1991). In McClure, the defendant county did not give proper notice under O.C.G.A. § 36-664(a) of a rezoning hearing, and the court ruled that the rezoning was therefore void for failure to
comply with the ZPL. The court held, “the General Assembly intended noncompliance with the
procedures to invalidate any zoning decision…we therefore conclude that the trial court properly
ruled that the county’s failure to comply with O.C.G.A. § 36-66-4(a) invalidates the subject
zoning action.” 258 Ga. at 710.
Tilley Properties involved the notice and hearing requirements of O.C.G.A. § 36-66-5(c).
O.C.G.A. § 36-66-5(c) requires notice and a hearing both for the adoption of standards and for
the adoption of policies and procedures governing the conduct of zoning hearings – the two are
handled identically by the ZPL. Tilley Properties dealt with Bartow County’s failure to provide
notice or a separate hearing when it adopted its policies and procedures. This failure invalidated
the entire zoning ordinance of the county. The court held, “‘Prior to the adoption of the policies
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and procedures, O.C.G.A. § 36-66-5(c), a local government must publish within a newspaper of
general circulation a notice of the public hearing, O.C.G.A. § 36-66-4, and a public hearing must
be held on the proposed action…. The trial court erred in failing to hold that the County did not
comply with the statute and that the ordinance is void.” 261 Ga. at 154.
Thus, the unsuccessful applicant should look at the validity of the zoning ordinance and
map. If the zoning ordinance and/or map were not adopted in compliance with the Zoning
Procedures Law, there would potentially be no zoning restriction on the property at all. The
official zoning map should either be spread upon the minutes, or referred to by reference in a
readily identifiable manner. Discovering a defect from years before can be sufficient to knock
down the entire ordinance, and relieve the applicant, and potentially the entire jurisdiction, of
zoning restrictions. See Tilley Properties, Inc. v. Bartow County, 261 Ga. 153, 401 S.E.2d 527
(1991).
Such a result is not likely with non-zoning land use regulations such as historic
preservation ordinances or other local ordinances regulating land use. After Buckler, DeKalb
County Bd. Of Commissioners, 299 Ga.App. 465 (2009), substantial compliance is likely
enough.
D.
Getting Damages and Fees.
There has been little success on the part of plaintiffs in seeking damages for
unconstitutional rezonings. Generally, the remedy for an unconstitutional zoning is getting the
property rezoned in a constitutional manner. One avenue that has been tried is to assert a
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temporary taking. That is, for the period that a property was subjected to an unconstitutional
zoning, what are the damages? Some cases in federal court have awarded temporary takings, but
Georgia courts have rejected them, unless the owner can show a complete deprivation of all
economic use. Powell v. City of Snellville, 275 Ga. 207, 563 S.E.2d 860 (2002).
42 U.S.C. § 1983 claims have not been very successful in state court either, in that the
state courts do not view there having been a violation of the federal law of zoning unless the
taking is complete, and there has been a deprivation all economic use of the property. Dover v.
City of Jackson, 246 Ga.App. 524, 541 S.E.2d 92 (2000). Moreover, raising federal claims
under § 1983 may result in the case being removed to federal court.
Obtaining any damages from a local government requires compliance with the ante litem
notice provisions of O.C.G.A. § 36-11-1 (counties) or § 36-33-5 (cities). These provisions
require giving a 30 day notice before filing suit. Due to the 30-day time bar in straight zoning
matters it is best to file your zoning challenge within the jurisdictional 30 day limit and amend to
add your damage claim later.
On occasion an award has been made for attorney fees in zoning suits under O.C.G.A. §
9-15-14 and under the Anti-SLAPP statute. See Hagemann v. Berkman Wynhaven Assoc.
290 Ga.App. 677, 660 S.E.2d 449 (2008); Rabun County v. Mountain Creek Estates, LLC, 280
Ga. 855, 632 S.E.2d 140 (2006); EarthResources, LLC v. Morgan County, 281 Ga. 396, 638
S.E.2d 325 (2006). These occasions are extremely rare, and under the most of egregious
circumstances, so never take a straight zoning case (or for that matter an administrative zoning
case) without clearly advising your client that they are not likely to get fees back!
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IV.
PROCEEDINGS IN APPELLATE COURT
A.
When in doubt, file a discretionary appeal application.
Once a judgment has been obtained in superior court, the traditional 30-day appeal clock
applies, and the first question is whether the appeal should be by application or direct. O.C.G.A.
§ 5-6-35(a) (1) provides that appeals from superior courts reviewing decisions of local
administrative agencies require an application for appeal. In Trend Development Corporation v.
Douglas County, 259 Ga. 425, 383 S.E.2d 123 (1989), the Supreme Court held that all appeals in
zoning cases required an application because they were appeals from court decisions “reviewing
a decision of an administrative agency within the meaning of O.C.G.A. § 5-6-35(a) (1).” The
holding in Trend established what the court termed a bright-line rule for both litigants and the
appellate courts: if the underlying subject matter is zoning, an application for discretionary
appeal must be filed. However, the courts have issued a number of somewhat confusing
opinions on this issue over the years.
In Harrell v. Little Pup Development, 269 Ga. 143, 498 S.E.2d 251 (1998), neighboring
landowners sought injunctive relief to enforce a zoning condition on another property. The court
approved a direct appeal because the neighbors “did not join their action for injunctive relief
with any appeal from an adverse administrative decision.... Therefore, this appeal in no way
involves superior court review of an administrative decision.” 269 Ga. at 144. In King v. City of
Bainbridge, 272 Ga. 427, 531 S.E.2d 350 (2000), a property owner ignored a zoning ordinance
and placed a mobile home in violation of the ordinance’s restrictions. The city wrote a letter
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which was ignored, and subsequently the city brought an injunctive enforcement action to
enforce its ordinance and have the home removed. In defense, King asserted that the zoning
ordinance was facially unconstitutional. The court authorized a direct appeal, noting that King
failed to seek a decision from the local zoning board, and instead the city filed for injunctive
relief. Because the order did not involve the review of a decision of a local administrative
agency, the court found the order directly appealable. In the case of Sprayberry v. Dougherty
County, 273 Ga. 503, 543 S.E.2d 29 (2001), neighboring property owners filed a mandamus
action to attack the validity of a rezoning decision on adjoining property (seeking to force the
Board to rescind the rezoning). The court approved a direct appeal, noting that the order was not
an appeal to review an administrative decision, and was therefore subject to direct appeal.
However, in Powell v. City of Snellville, 275 Ga. 207, 563 S.E.2d 860 (2002), the court
concluded that the inclusion of other claims and prayers for relief in a decision appealing a
zoning decision does not transform the case into a direct appeal. In such a case, an application
would still be required. The court reversed its ruling granting a direct appeal, held that a
discretionary appeal was required, and rejected the application for appeal. The recent case, of
Worley v. Peachtree City, (2010 Ga.App. Lexis 683) seems to completely undermine this
reasoning however. Decided July 9, 2010, the Court of Appeals, faced with a citizen appeal of
an annexation and rezoning action, found that because annexation is directly appealable
regardless of the inclusion of a zoning claim which is normally discretionary. If there is a
directly appealable claim separate from the zoning claim, then under the authority of Worley the
whole appeal is direct. Ferguson v. Composite State Bd. of Medical Examiners, 275 Ga. 255,
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564 S.E.2d 715 (2002), was not a zoning case; it involved a doctors’ appeal of a medical license
revocation. The losing ex-doctor filed both a direct appeal and a discretionary application. As
the appeal of the decision of an administrative body, the case fell into the ambit of O.C.G.A. § 56-35, but as mandamus, it fell under O.C.G.A. § 5-6-34. Reaffirming the rule of Rebich v.
Miles, 264 Ga. 467, 448 S.E.2d 192 (1994), the court held that the underlying substance controls,
and that an application was required.
The court examined Sprayberry at length, and clarified its logic, noting that if the request
for mandamus relief “attacks or defends the validity” of an administrative decision, then the trial
court must necessarily “review” the administrative decision before ruling on the request for
mandamus relief, and hence a discretionary appeal is appropriate. The court overruled
Sprayberry to the extent it held that filing a mandamus decision to “review” an administrative
decision is not an attack or defense of such decision, and it overruled any holding that
mandamus actions do not require applications. See, also in this regard Ladzinske v. Allen, 280
Ga. 264 (2006).
So what type of appeal do you file? In spite of Worley, the safest answer in any case that
touches on zoning in any fashion has been to file both a direct appeal and a discretionary
application. However, O.C.G.A. § 5-6-35(j) has been revised to state that an application will
count as a notice of appeal if a direct appeal is authorized. In most any case related to zoning,
filing an application would be prudent. Certainly in any case where the client has actually been
in front of a board or agency prior to going to superior court, the “two tribunal” rule would likely
apply, and thus an application would be the best bet.
31
B.
Determine the proper appellate court.
A less critical issue would be the proper court for an appeal. The Supreme Court and
Court of Appeal’s respective jurisdiction is defined by the Georgia Constitution of 1983, in
Article 6, Sections 5 and 6. The Court of Appeals has jurisdiction over all cases not reserved to
the Supreme Court. Ga. Const., Art. 6, Sec. 5, Para. III. The Supreme Court has exclusive
appellate jurisdiction over all cases involving the constitutionality of a law or ordinance. Ga.
Const., Art. 6, Sec. 6, Para. II. For a zoning case, the question is generally the constitutionality
of the zoning ordinance. As a constitutional decision, the Supreme Court gets the case. As
Justice Smith put it in Trend, supra, “Where an appeal from a decision of a court reviewing a
zoning decision involves a constitutional question, this Court has jurisdiction; where it does not
involve a constitutional question, the Court of Appeals has jurisdiction.” 259 Ga. at 425. Of
course, Art. 6, Sec. 6, Para. III gives the Supreme Court jurisdiction over “all cases involving
extraordinary remedies,” and mandamus is an “extraordinary remedy,” thus suggesting the
Supreme Court should take jurisdiction over all mandamus cases, whether or not they involve a
constitutional question. In practice, that does not always happen. On occasion, the Supreme
Court has sent a constitutional case down to the Court of Appeals on the premise that the
Constitutional question is well settled, and simply requires application of the law to the facts.
Either court will transfer to the proper court, so there is no penalty for getting things
wrong, other than delay. If the Court of Appeals transfers a case to the Supreme Court, asserting
that court has jurisdiction, the Supreme Court has jurisdiction to send it back if it disagrees.
Some say that, when in doubt, file in the Supreme Court, so that if you get transferred, at least it
32
will only happen once. However, due to internal court rules about how applications for
discretionary review are granted, the odds of getting a discretionary appeal granted may be better
in the Court of Appeals.
C.
When filing an application, be persuasive and follow the
Court’s rules.
When an application is required, the application itself will be the most important brief
filed in the appeal. Practically speaking, it must convince the reader that there is error, and it is a
significant enough case to justify review. Neither appellate court takes many zoning appeals, so
the task of the practitioner is to show that this case is one of those that deserve appellate review.
In no way should the application be considered a form or formality; it must be a compelling and
detailed explanation of the merits and importance of the case. Both appellate courts have
particular rules for the procedure and standard for granting a discretionary appeal, and those
rules should be followed strictly. (Rules 33 & 34 for the Supreme Court; Rule 31 for the Court of
Appeals)
33