302 Ga. 284
Ga.2017Background
- Kammerer Real Estate owns a corner lot in Forsyth County subject to a zoning condition requiring certain "open space" remain undeveloped.
- Kammerer applied for a site development permit to build an automotive service facility; the County Director denied the permit, concluding the proposal violated the open-space condition.
- Kammerer asked the Board of Commissioners to amend the condition; the Board declined.
- Kammerer sued the County, the Board, and the Director seeking declaratory relief (challenging the constitutionality of the condition), a writ of mandamus compelling permit issuance, judicial review by certiorari of the Director’s and Board’s actions, and attorney fees under OCGA § 13-6-11.
- The trial court granted the defendants’ motion to dismiss some claims and denied dismissal of others; Kammerer appealed and the defendants cross-appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge constitutionality of preexisting zoning condition | Purchaser may challenge a zoning regulation even if it existed at purchase | Zoning in effect at purchase bars challenge | Court: Pilgrim controls; buyer may challenge; reversal of dismissal |
| Certiorari review of Director’s denial of permit | Director misinterpreted condition; certiorari available to correct error | Dismiss because plaintiff did not sufficiently brief claim | Court: Pleading sufficiently alleged Director’s error; dismissal improper |
| Certiorari review of Board’s decision to leave condition | Board’s act reviewable by certiorari under ordinance | Local ordinance cannot expand certiorari scope under state law | Court: Trial court erred in refusing to dismiss on Flowers grounds; remand to reconsider |
| Attorney fees under OCGA § 13-6-11 | Fees sought as derivative of plaintiff’s claims (declaratory, mandamus, certiorari) | Fees improper if only derivative of certiorari claim | Court: Because declaratory/mandamus claims remain, refusal to dismiss fee claim affirmed (question left open on remand) |
Key Cases Cited
- City of Rome v. Pilgrim, 246 Ga. 281 (buyer may challenge constitutionality of zoning existing at time of purchase)
- City of Cumming v. Flowers, 300 Ga. 820 (scope of certiorari review defined by state law; local ordinance cannot expand it)
- Anderson v. Flake, 267 Ga. 498 (standard for dismissal under OCGA § 9-11-12(b)(6))
- McConnell v. Georgia Dept. of Labor, 302 Ga. 18 (sovereign immunity is jurisdictional and must be resolved before merits)
- SJN Properties v. Fulton County Bd. of Assessors, 296 Ga. 793 (mandamus not barred by sovereign immunity in certain respects)
- Forsyth County v. Martin, 279 Ga. 215 (attorney fees available under OCGA § 13-6-11 as derivative of mandamus and declaratory relief)