Nancy Jester v. Red Alligator, LLC
344 Ga. App. 15
| Ga. Ct. App. | 2017Background
- Red Alligator, LLC sought rezoning (OCR to C-1) and a Special Land Use Permit (SLUP) in DeKalb County for a resort including an indoor amusement area with Class B machines.
- At the December 16, 2014 Commission meeting five members voted to approve both applications; the district commissioner (Dist. 5) was serving as interim CEO and did not vote, and the super-district commissioner recused.
- In February 2015 the Commission acknowledged the approvals were invalid for failing to obtain the vote of the commissioner representing the district or super district (the “Ward Courtesy Rule”), and Red Alligator sued in March 2015 seeking declaratory and injunctive relief and damages.
- Before a May 2015 re-vote, Red Alligator withdrew both applications; the County moved for summary judgment arguing the lawsuit was moot and that the December approvals violated the Ward Courtesy Rule.
- The trial court denied summary judgment and entered judgment for Red Alligator, declaring the December approvals valid and enjoining the County from rescinding them; the Court of Appeals granted the County discretionary appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the case was moot after Red Alligator withdrew the applications | Withdrawal did not moot because the central question—validity of Dec. 2014 approvals—remained live and could affect rights | Withdrawal mooted the dispute because relief sought (maintaining approvals) was no longer available | Not moot: Court of Appeals found the question of validity remained justiciable |
| Whether a rezoning approval is subject to DeKalb’s Ward Courtesy Rule | Rezoning approval is not an "ordinance" under the Organizational Act in the sense meant by the Ward Courtesy Rule; ZPL definitions distinguish "zoning ordinance" from rezoning | Rezoning amends the county zoning ordinance/map and thus is a zoning ordinance subject to the Ward Courtesy Rule | Held rezoning approvals constitute adoption/amendment of a zoning ordinance and are subject to the Ward Courtesy Rule |
| Whether grant of a SLUP is subject to the Ward Courtesy Rule | SLUP is an administrative/permit action and not an adoption of a zoning ordinance | SLUPs are granted by ordinance under the county comprehensive zoning ordinance and therefore are zoning ordinances | Held grant of a SLUP constitutes adoption of a zoning ordinance and is subject to the Ward Courtesy Rule |
| Whether the December 2014 approvals vested rights that preclude rescission despite Ward Courtesy violation | Once a rezoning is approved, property rights vest and approval cannot be rescinded absent new petition/procedure | Where approval was ultra vires (violated Ward Courtesy Rule) it is void ab initio and cannot create vested rights | Held approvals were ultra vires and void; no vested rights arose from invalid approvals |
Key Cases Cited
- Rock v. Head, 254 Ga. App. 382 (holding rezoning approvals are subject to DeKalb’s Ward Courtesy Rule)
- Brown v. City of East Point, 246 Ga. 144 (discussing vesting and that void acts cannot create vested rights)
- City of Baldwin v. Woodard & Curran, 293 Ga. 19 (local government cannot act beyond powers conferred by statute)
- Scarbrough Group v. Worley, 290 Ga. 234 (mootness standard: abstract questions and practical effect)
- Heiskell v. Roberts, 342 Ga. App. 109 (acts taken in total absence of power are ultra vires and without legal effect)