Marietta Properties, LLC v. City of Marietta
319 Ga. App. 184
| Ga. Ct. App. | 2012Background
- Marietta Properties owns property in Marietta's historic district, where new principal buildings require a Certificate of Approval from the Historic Board of Review.
- In 2000 the City Code was amended to bar Certificates of Approval for buildings exceeding 85 feet in height.
- A 2008 Certificate of Approval permitted demolishing the existing building and constructing a ~66-foot, five-story building, with a 36-month construction requirement.
- In 2011 the City enacted a Height Ordinance restricting that area to 42 feet, and this was applied to the Property.
- Marietta Properties filed suit on April 27, 2011 for a declaratory judgment that it had a vested right to build to ~66 feet under the 2008 approval, asserting no permit had been denied.
- The trial court dismissed as unripe; on appeal the court affirmed, holding the claim was not ripe and that vested-right review requires exhaustion of administrative remedies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the declaratory judgment claim ripe? | Marietta Properties argues vested rights exist despite no permit denial. | City contends lack of exhaustion renders claim unripe. | Not ripe; dismissal proper. |
| Must vested rights claims be exhausted through administrative remedies before judicial review? | Properties contends no remedies exist here due to the new height ordinance. | City asserts exhaustion is required to challenge vesting and ordinance actions. | Exhaustion required; failure to exhaust prevents judicial review. |
| Can futility of administrative review excuse exhaustion? | City actions prove permit application would be futile; thus review unnecessary. | Futility analysis fails because no permit application was ever submitted or denied. | Futility not established; review not excused. |
| Is the interlocutory injunction addressing tolling of the Certificate of Approval moot | Tolling preserves rights pending adjudication. | Case already dismissed; injunction moot. | Moot; denial not error; status quo preservation not required. |
Key Cases Cited
- Mayor &c. of Savannah v. Savannah Cigarette & Amusement Svcs., 267 Ga. 173 (1996) (exhaustion and justiciability in declaratory actions)
- Effingham County Bd. of Commrs. v. Effingham County Indus. Dev. Auth., 286 Ga. App. 748 (2007) (justiciable controversy required for declaratory judgment)
- Cooper v. Unified Govt. of Athens-Clarke County, 277 Ga. 360 (2003) (vested rights not reviewable before permit denial; exhaustion of remedies)
- City of Atlanta v. Hotels.com, L.P., 285 Ga. 231 (2009) (administrative process relevance in declaratory judgments)
- Powell v. City of Snellville, 266 Ga. 315 (1996) (exhaustion where review would be futile improper)
- WMM Properties v. Cobb County, 255 Ga. 436 (1986) (prematurity of declaratory action in absence of denial of permit)
- Little v. City of Lawrenceville, 272 Ga. 340 (2000) (futility of administrative review only where same issue would be decided by same body)
- Dean v. City of Jesup, 249 Ga. App. 623 (2001) (appeal not moot if reversal would benefit appellant)