Kammerer Real Estate Holdings, LLC v. Forsyth County Board of Commissioners
302 Ga. 284
Ga.2017Background
- Kammerer Real Estate Holdings 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 Forsyth County 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/interpretation of the condition), a writ of mandamus to compel issuance of the permit, judicial review by certiorari of the Director’s and Board’s actions, and attorney’s fees under OCGA § 13-6-11.
- The trial court granted the defendants’ motion to dismiss in part and denied it in part; Kammerer appealed and defendants cross-appealed.
- The Georgia Supreme Court affirmed in part and reversed in part, vacating dismissals based on precedents and remanding remaining issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge constitutionality of zoning condition | Kammerer may challenge constitutionality though condition predated purchase | Condition existing at purchase bars challenge | Court: Pilgrim controls — plaintiff may challenge; dismissal reversed |
| Judicial review by certiorari of Director’s denial of permit | Director misinterpreted zoning condition; certiorari review appropriate | Dismiss because complaint/brief didn’t sufficiently challenge Director | Court: Dismissal improper; pleadings sufficiently alleged certiorari claim |
| Judicial review by certiorari of Board’s decision to leave condition in place | Board’s zoning act reviewable by certiorari per county ordinance | County argued scope of review limited by state law (OCGA § 5-4-1) | Court: Trial court erred in relying on local ordinance; remand to reconsider in light of Flowers/OCGA § 5-4-1 |
| Attorney’s fees under OCGA § 13-6-11 | Fees available as derivative claim tied to declaratory/mandamus relief | Fees improper if only tied to certiorari claim | Court: Denial of dismissal as to fees affirmed because declaratory/mandamus claims were reinstated; availability unresolved on merits and left for remand |
Key Cases Cited
- City of Rome v. Pilgrim, 246 Ga. 281 (1980) (purchaser may attack constitutionality of a zoning regulation that preexisted purchase)
- City of Cumming v. Flowers, 300 Ga. 820 (2017) (scope of certiorari review is defined by state law and cannot be enlarged by local ordinance)
- Anderson v. Flake, 267 Ga. 498 (1997) (standard for dismissal under OCGA § 9-11-12(b)(6))
- McConnell v. Ga. Dept. of Labor, 302 Ga. 18 (2017) (sovereign immunity is jurisdictional and should be resolved before merits)
- Forsyth County v. Martin, 279 Ga. 215 (2005) (attorney fees under OCGA § 13-6-11 may be asserted as derivative of mandamus/declaratory/injunctive claims)