City of Statesboro v. Dickens
293 Ga. 540
| Ga. | 2013Background
- George and Catherine Dickens sought to complete a partially built 2,160 sq ft detached garage on their R-20 residential property after receiving an initial 2008 permit for a smaller 1,125 sq ft garage. Inspections showed the structure exceeded the approved size, was rotated, encroached the front yard, and might exceed height limits.
- The City issued a stop-work order in January 2009; municipal court fined the Dickenses $1,000 (later settled with the City dropping the fine and the Dickenses agreeing not to build larger than approved).
- The Dickenses sought rezoning of an adjacent 0.25-acre commercial parcel to R-20 to combine with their lot and claim exemption from the accessory-size restriction; the City council unanimously denied rezoning and the Dickenses did not seek judicial review of that denial.
- In June–September 2010 the Dickenses applied for a building permit for the 2,160 sq ft garage; the City denied the permit as violating the accessory-structure size, front-yard encroachment, and potential height limits.
- The Dickenses appealed the permit denial to the City Zoning Board of Appeals (ZBA), which unanimously denied the appeal on November 16, 2010. More than 30 days later they filed a petition for mandamus and damages in Bulloch County Superior Court seeking an order compelling issuance of the permit.
- The superior court denied the City’s motion for summary judgment; the Supreme Court granted interlocutory review and reversed, holding the Dickenses were required to seek review by writ of certiorari and their action was untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper procedural remedy for ZBA decision | Dickenses filed for mandamus to compel permit issuance | City argued ordinance requires writ of certiorari to review ZBA decisions | ZBA decisions are judicial in effect; ordinance requires certiorari; mandamus improper |
| Timeliness of judicial challenge | Delay excused or not dispositive; merits should be reached | Appeal was filed more than 30 days after ZBA decision and thus untimely | Appeal untimely; certiorari must be filed within 30 days and late applications are dismissed |
| Whether mandamus could substitute for certiorari | Mandamus appropriate to compel ministerial act (issue permit) | If specific remedy (certiorari) exists, mandamus does not lie | Where certiorari is prescribed, mandamus will not lie; Dickenses could not proceed by mandamus |
| Trial court’s denial of City’s summary judgment motion | Facts warranted proceeding on merits | Procedural defects required dismissal without reaching merits | Court reversed denial of summary judgment by dismissing case for procedural defects |
Key Cases Cited
- DeKalb County v. Wal-Mart Stores, Inc., 278 Ga. 501 (recognizing BZA/ZBA exercises judicial power and certiorari is proper review when ordinance so provides)
- McClung v. Richardson, 232 Ga. 530 (mandamus unavailable where a specific remedy by certiorari exists)
- Wilson v. City of Snellville, 256 Ga. 734 (zoning challengers time-barred when suit not filed within 30 days of zoning decision)
- Jackson v. Spalding County, 265 Ga. 792 (discussing appropriate judicial review procedures for zoning board decisions)