337 Ga. App. 268
Ga. Ct. App.2016Background
- Plaintiffs Schumacher and Nyden are Roswell residents and property owners whose parcels were rezoned when the City adopted a new Unified Development Code (UDC) and zoning map after two public meetings.
- Plaintiffs filed a declaratory judgment and injunctive action in Fulton County Superior Court claiming violations of the Zoning Procedures Law, state and federal due process, the Roswell City Charter, and conflict-of-interest laws, seeking to void and enjoin the UDC.
- The City answered, attached certified copies of the UDC, map, and council minutes, and moved for judgment on the pleadings.
- The superior court granted the City’s motion on all claims and denied the plaintiffs’ interlocutory injunction as moot.
- Plaintiffs filed a direct appeal challenging only the dismissal of their constitutional due process claims; the City moved to dismiss the direct appeal for lack of jurisdiction, arguing a discretionary application was required.
- The Court of Appeals concluded the appeal required discretionary application under OCGA § 5-6-35(a)(1) and dismissed the appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a direct appeal was proper or a discretionary application required when a superior court reviews a local zoning decision | Direct appeal permitted; plaintiffs need not use discretionary application | Appeal is from a superior court reviewing a local administrative (zoning) decision and must be by discretionary application under OCGA § 5-6-35(a)(1) | Appeal must proceed by discretionary application; direct appeal dismissed for lack of jurisdiction |
| Whether the City Council’s adoption of the UDC and map is a "legislative" act that avoids OCGA § 5-6-35(a)(1) | The UDC adoption is a legislative act (general ordinance), so the discretionary-appeal rule for administrative decisions should not apply | Trend and subsequent precedent treat local zoning/rezoning decisions (even legislative-appearing ones) as agency decisions for appeal-method purposes | Court rejects plaintiffs’ legislative/administrative distinction for appellate jurisdiction; Trend and Rubin bind that zoning appeals require application |
| Whether the non-party exception to discretionary appeals applies (i.e., plaintiff did not participate in administrative proceeding) | Plaintiffs were not formal parties to council meetings, so the non-party exception should apply | Plaintiffs and/or counsel participated in public meetings and voiced objections, so they had opportunity to participate; exception does not apply | Non-party exception does not apply because plaintiffs participated in the public administrative proceedings |
Key Cases Cited
- Trend Dev. Corp. v. Douglas County, 259 Ga. 425 (Ga. 1989) (establishes that appeals from superior court review of local zoning decisions require discretionary application)
- O S Advertising Co. of Ga. v. Rubin, 267 Ga. 723 (Ga. 1997) (requires discretionary appeal for facial constitutional challenges to city zoning ordinances)
- Rebich v. Miles, 264 Ga. 467 (Ga. 1994) (explains OCGA §§ 5-6-34 and 5-6-35 interplay for appeal method)
- Ferguson v. Composite State Bd. of Med. Examiners, 275 Ga. 255 (Ga. 2002) (clarifies that collateral attacks in superior court on administrative decisions fall within OCGA § 5-6-35(a)(1))
- Fulton County v. Congregation of Anshei Chesed, 275 Ga. 856 (Ga. 2002) (applies Trend to zoning appeals and appellate procedure)
- Hamryka v. City of Dawsonville, 291 Ga. 124 (Ga. 2012) (addresses participation/nonparty exception and confirms discretionary-appeal rule)