300 Ga. 820
Ga.2017Background
- Kerley Family Homes applied for a zoning variance from the City of Cumming to reduce building setbacks for certain townhouse lots; the City’s Board of Zoning Appeals (BZA) granted a conditional variance.
- Neighboring homeowners (Flowers and others) sued in Forsyth Superior Court seeking mandamus and an injunction to overturn the variance as arbitrary, ultra vires, and an abuse of discretion.
- Defendants moved for dismissal/summary judgment, arguing the proper remedy to challenge a quasi-judicial zoning variance is a petition for certiorari under OCGA § 5-4-1, not mandamus.
- The superior court denied summary judgment and allowed the mandamus/injunction claims to proceed; the defendants appealed interlocutorily.
- The Georgia Supreme Court held the BZA’s variance decision was quasi-judicial and that certiorari under OCGA § 5-4-1 is the exclusive remedy when certiorari is available, disapproving prior precedent that made availability depend on the local ordinance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BZA’s variance decision was quasi-judicial | Homeowners: Board ignored ordinance conditions, so action was legislative/ultra vires | Defendants: Decision involved fact-finding under ordinance standards, so quasi-judicial | Court: Quasi-judicial — BZA applied factual standards to particular property and held a public hearing |
| Proper superior-court remedy to challenge a quasi-judicial variance | Homeowners: Mandamus and injunction were proper (citing cases saying mandamus may lie when local ordinance lacks certiorari) | Defendants: Petition for certiorari under OCGA § 5-4-1 is the correct remedy; mandamus unavailable if certiorari applies | Court: Certiorari is the proper remedy; mandamus unavailable when certiorari applies |
| Whether local ordinances may dictate remedy (certiorari vs mandamus) | Homeowners: Local ordinance language may require different procedure; earlier cases allowed local control | Defendants: State certiorari statute governs; local ordinance cannot displace it | Court: Disapproved precedent permitting local ordinances to override OCGA § 5-4-1; local ordinances cannot turn certiorari on/off |
| Availability of injunction when certiorari exists | Homeowners: Injunction appropriate to prevent enforcement of variance | Defendants: Legal remedy (certiorari) is adequate; injunction improper | Court: Injunction unavailable because certiorari provides adequate legal remedy |
Key Cases Cited
- Jackson v. Spalding County, 265 Ga. 792 (recognized variance decisions as quasi-judicial but stated the "local-ordinance requirement")
- Shockley v. Fayette County, 260 Ga. 489 (discussed quasi-judicial vs. legislative functions of zoning boards)
- City of Atlanta v. Wansley Moving & Storage Co., 245 Ga. 794 (addressed remedies for conditional/special use permits)
- Haralson County v. Taylor Junkyard of Bremen, Inc., 291 Ga. 321 (held local ordinances cannot create unauthorized direct appeals to superior court)
- State of Ga. v. Intl. Keystone Knights of the Ku Klux Klan, 299 Ga. 392 (explained criteria distinguishing quasi-judicial from legislative action)