This case involves the procedure by which a local zoning board’s quasi-judicial decision on a variance request may be appealed to the superior court. Kerley Family Homes, LLC (“Kerley”) was granted a variance by the City of Cumming’s Board of Zoning Appeals (“BZA”). Neighboring homeowners aggrieved by the variance sought to appeal the BZA’s decision by filing a complaint seeking a writ of mandamus and an injunction in the superior court. The defendants argued that they were entitled to summary judgment against the homeowners because the zoning variance decision was a quasi-judicial decision that can be challenged in the superior court only by a petition for certiorari under OCGA § 5-4-1. They were right, and we therefore reverse the trial court’s denial of summary judgment. In doing so, we disapprove cases from this Court and the Court of Appeals — the leading one being Jackson v. Spalding County,
1. Kerley Family Homes, LLC, was building townhouses on property it owned in Cumming. Acknowledging that its construction plans violated the requirement of the City’s Zoning Ordinance that buildings be set back at least 20 feet from the adjoining property line, Kerley filed a variance application to change the required setback for buildings on some of its property. Kerley then amended that application, asking to change the
On March 17, 2015, the City’s Planning Board held a public hearing and recommended denial of the original variance plan submitted by Kerley Kerley appealed that decision to the City’s Board of Zoning Appeals, which consists of the Mayor and City Council. On April 21, 2015, the BZAheld a public hearing on the variance request. The City’s planning director advised the BZA that lots 38-42 were actually still under construction, and that Kerley had modified its request to ask for an 11-foot setback for lots 38-42 and had agreed to demolish the townhouse being built on lot 42 and replace it with one conforming to the 20-foot setback requirement. The planning director noted that the Planning Board had not formally considered the revised plan but that, after review, the members now individually recommended approving the revised plan. After hearing from Ker-ley’s lawyer and two representatives of homeowners in the adjoining neighborhood, the BZA voted to grant the variance application with several conditions, including the removal of lots 21-37 from the request and the demolition of the townhouse on lot 42.
On May 21, 2015, neighboring homeowners Robert G. Flowers and Kathleen Donovan along with Castleberry Homeowners Association Two, Inc. (collectively, “the Homeowners”) filed a complaint in Forsyth County Superior Court against the City, the individual members of the City Council, the Mayor, and the “City Council and/or Members of Board of Zoning Appeals” (collectively, “the City defendants”), as well as “Kerley Family Homes, LLC and Kerley Family Homes at HR, LLC” (collectively, “the Kerley defendants”). The Homeowners sought to appeal the grant of the variance on the grounds that it was a gross abuse of discretion, arbitrary and capricious, erroneous, and ultra vires. The complaint requested a writ of mandamus to “compel[ ] the Defendants Mayor and City Council and/or the board of zoning appeals to comply with the law” as well as “an injunction restraining and enjoining Defendants from violating the Zoning Ordinance.”
The City and Kerley defendants both filed answers, and the City defendants then filed a motion to dismiss and a supporting brief, to which they attached portions of the City ordinances, including the Zoning Ordinance. The City defendants argued that the Homeowners’ complaint should be dismissed because a challenge to the variance decision was required to come to the superior court by a petition for certiorari under OCGA § 5-4-1. The Kerley defendants joined the motion to dismiss.
The superior court held a hearing on the motion to dismiss, at which the parties agreed to treat it as a motion for summary judgment and thus allow the court to consider the City ordinances attached to the filings. On March 29, 2016, the superior court denied summary judgment. The court then granted both sets of defendants’ requests for certificates of immediate review, and on May 16, the City defendants and Kerley defendants filed applications for interlocutory appeal in the Court of Appeals, which were transferred to this Court because the cases involve an issue of mandamus relief and the applications were filed before January 1, 2017.
2. In ruling that the Homeowners could proceed on their petition for mandamus, the superior court relied on the procedural direction from this Court that “where the zoning ordinance does not provide a means of appeal from the denial of a request for a variance, the landowner travels to superior court by writ of mandamus.” Shockley v. Fayette County,
3. Before we grapple with the viability of the local-ordinance requirement, we must determine whether it applies in this case. Specifically, we must determine if the BZA’s decision to grant a variance to Kerley was, like the variance decision in Jackson, quasi-judicial. If it was not, then Jackson, which rests on the quasi-judicial nature of the decision, is inapplicable, and a petition for certiorari would not be available regardless of the local or dinance. OCGA § 5-4-1 (a) says:
The writ of certiorari shall lie for the correction of errors committed by any inferior judicatory or any person exercising judicial powers, including the judge of the probate court, except in cases touching the probate of wills, granting letters testamentary, and of administration.
Thus, “[cjertiorari is not an appropriate remedy to review or obtain relief from the judgment, decision or action of an inferior judicatory or body rendered in the exercise of legislative, executive, or ministerial functions, as opposed to judicial or quasi-judicial powers.” Presnell v. McCollum,
No party here challenges Jackson's main holding — that the variance decision at issue there was quasi-judicial. See
In sum, the BZA’s discretion was “ ‘tightly controlled by the ordinance,’ ” RCG Properties, LLC v. City of Atlanta Bd. of Zoning Adjustment,
The Homeowners contend that Kerley’s requested variance did not satisfy a number of the conditions required by the Zoning Ordinance. In particular, pointing to Kerley’s admission that its failure to meet the setback requirement was due to a surveyor’s mistake, the Homeowners assert that the requirement that the special circumstances necessitating the variance were “not the result of the actions of the applicant” was not fulfilled. The Homeowners argue that even though the Mayor and the City Council were purporting to act as the BZA, because they disregarded these required conditions, they actually exercised their legislative power by granting a variance that was not permitted under the current zoning regulations. The BZA may well have abused its discretion in concluding that all of the conditions were met and thus in granting the variance to Kerley, but that is a question of the correctness of the BZA’s decision, not its nature. A quasi-judicial decision does not become a legislative decision simply because it was wrong. See Keystone Knights,
4. Once we have determined that the BZA’s decision to grant Kerley a variance was quasi-judicial, the remaining analysis of this case should be straightforward. As Jackson held, an administrative zoningbody’s quasi-judicial decision comes within
The local-ordinance requirement, however, directs a different analysis, saying that the BZA’s quasi-judicial decision may be appealed by certiorari only if the City’s Zoning Ordinance so provides. See Jackson,
The hurdle the defendants must clear is the doctrine of stare decisis, but that is not an insurmountable hurdle.
Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process .... Nevertheless, when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent.... Stare decisis is not an inexorable command; rather, it is a principle of policy and not a mechanical formula of adherence to the latest decision .... In considering whether to reexamine a prior erroneous holding, we must balance the importance of having the question decided against the importance of having it decided right. In doing so, we consider factors such as the antiquity of the precedent, the reliance interests at stake, the workability of the decision, and, most importantly, the soundness of its reasoning.
Woodard v. State,
5. We consider first the most important of these factors — the soundness of the precedent’s reasoning — and we conclude that it “cuts most strongly against retaining [the local-ordinance requirement].” Woodard,
(a) The local-ordinance requirement conflicts with OCGA § 5-4-1 and this Court’s interpretation and application of that statute in non-zoning contexts. A certiorari statute like OCGA § 5-4-1 has been in the Georgia Code since 1860. See Code of 1860, § 3957 (“The writ of certiorari will lie for the correction of errors committed by . . . any inferior judicatory or any person exercising judicial powers . . . .”).
(b) The local-ordinance requirement that the Jackson Court adopted without apparent reflection emerged when it was uncertain whether local zoning decisions like variance decisions qualified as a decision “by [an] inferior judicatory or [a] person exercising judicial powers” under OCGA § 5-4-1.
In 1995, Jackson resolved the uncertainty about whether certio-rari is available to appeal a variance decision. Citing Shockley and Bentley, this Court overruled Intl. Funeral and squarely held that a variance decision was a quasi-judicial decision and that it therefore could be appealed by a petition for certiorari under OCGA § 5-4-1. See Jackson,
(c) The most troubling consequence of the local-ordinance requirement is that it allows local ordinances to effectively preempt the general certiorari statute. According to Jackson, the local ordinance rather than OCGA § 5-4-1 determines how a variance decision must be appealed; in fact, a city or county may turn the state statute off or on simply by amending its ordinance. This scheme does not comport with our Constitution, under which general laws are supreme over local ordinances, including in the field of zoning.
(d) Indeed, this Court has already gone part of the way toward correcting the misstatements of appellate procedure in Jackson and similar cases by applying this constitutional principle in the context of attempts to take direct appeals of quasi-judicial zoning decisions to the superior court. In a number of cases, this Court and the Court of Appeals
The Court of Appeals also picked up this broad expression of local government control over zoning appeals. See Targovnik v. City of Dunwoody Zoning Bd. of Appeals,
In 2012, however, this Court flatly rejected the proposition that a local government can, “without statutory authority, create a mechanism by which an appeal may be taken to the superior court.” Haralson County v. Taylor Junkyard of Bremen, Inc.,
To be sure, the local ordinance generally guides the reviewing court’s evaluation of whether the local entity’s decision was quasi-judicial, but this evaluation does not focus on the label the ordinance puts on the decision or what the ordinance says about subsequent judicial review. Instead, the court examines how the ordinance defines the parameters and requirements of the decision and the process the local entity uses to reach it — as we did in Division 3 above in determining that the BZA’s variance decision in this case was quasi-judicial. See Mack II v. City of Atlanta,
(e) Because the local-ordinance requirement’s “reasoning is unsound and contrary to the body of our law,” the most important stare decisis factor weighs strongly in favor of disapproving the requirement. State v. Jackson,
6. We turn next to the remaining stare decisis factors — the age of the precedent, the reliance it has induced, and its workability See Woodard,
(a) First, the local-ordinance requirement is “ ‘neither ancient nor entrenched.’ ” Southall v. State,
Moreover, since Jackson, the specific principle that a variance or a special or conditional use permit decision can be appealed by certiorari only if the local ordinance so provides appears to have been repeated only a handful of times. See Dickens,
(b) Second, “ ‘(t)he issue is one of appellate procedure, not contract, property, or other substantive rights in which anyone has a significant reliance interest.’ ” Southall,
(c) Finally, although the local-ordinance requirement is not unworkable, it is not as workable as the correct rule. Under the requirement, if a local ordinance says that the losing party may appeal a quasi-judicial variance decision by certiorari, the party must file a petition for certiorari. If the ordinance does not so provide, the party must appeal by petition for mandamus. But determining whether an ordinance actually provides for certiorari is not always easy It is easy if the local ordinance refers explicitly to “certiorari.”
All decisions of the mayor and council or the board of zoning appeals are final and may be subject to appeal only by suit filed in the superior court of the county In cases of legislative decisions (e.g., rezonings, conditional use permits, and text amendments), the review shall be de novo review. In cases of administrative or quasi-judicial decisions (e.g., variances), review shall be based upon the existing record.
Whether this provision authorizes judicial review by certiorari has been a major source of contention between the parties and was the focus of much of the trial court’s order.
Determining whether a decision is quasi-judicial may also be difficult in some cases. See Keystone Knights,
The inconsistency between the local-ordinance requirement and general principles of our appellate procedure (and constitutional) law creates a trap for unwary litigants, lawyers, and judges trying to determine if appeals of zoning decisions to the superior court properly proceed by certiorari or mandamus. See Christopher J. McFadden et al., Ga. Appellate Practice § 7:25 (Nov. 2016 update) (criticizing the “confusion” surrounding the local-ordinance requirement and noting that “[t]he party faced with a local zoning law or ordinance that does not provide for certiorari review is faced with a dilemma that may require filing both a certiorari petition and an alternative civil action for declaratory relief”). Would-be appellants must not only recognize that variance and special and conditional use permit cases have a unique appellate requirement imposed on them by case law, but also may wonder just how far this deviation from the rest of Georgia law extends. Does it, for example, apply to building or business permits based on grants or denials of variances or conditional use requests? See, e.g., Haralson County,
(d) In sum, the stare decisis factors weigh heavily in favor of disapproving Jackson, Shockley, Wansley, and other cases that have expressed the local-ordinance requirement in the context of zoning variances or conditional or special use permits, to the extent that these cases indicate that a quasi-judicial decision of a local zoning board may be appealed to the superior court by mandamus rather than certiorari based on what the local ordinance says about such appeals.
7. With the local-ordinance requirement set aside, and given our determination in Division 3, it is clear that OCGA § 5-4-1 applied in this case and that the Homeowners were entitled to seek review of the BZA’s quasi-judicial decision granting a zoning variance to Kerley by petition for certiorari in the superior court. Because certiorari was available, mandamus was not. See OCGA § 9-6-20; Dickens,
8. We also reverse the trial court’s ruling denying summary judgment and allowing the Homeowners’ claim for an injunction to proceed.
Judgments reversed.
Notes
We note that under the Appellate Jurisdiction Reform Act of 2016, appellate jurisdiction over almost all “cases involving extraordinary remedies” like mandamus lies in the Court of Appeals when the notice of appeal or application to appeal in the case is filed on or after January 1, 2017. See Ga. L. 2016, p. 883, §§ 3-1 (codified as OCGA § 15-3-3.1), 6-1 (c).
Section 113-50 of the City’s Zoning Ordinance provides that the BZA may grant a variance only if it
will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of these regulations will in an individual case, result in unnecessary hardship, so that the spirit of these regulations shall be observed, public safety and welfare secured, and substantial justice done. The existence of a nonconforming use of neighboring land, buildings or structures in the same zoning district or of permitted or nonconforming uses in other districts shall not constitute a reason for the requested variance . A variance may be granted in an individual case of unnecessary hardship, after appropriate application, upon specific findings that all of the following conditions exist. The absence of any one of the conditions shall be grounds for denial of the application for variance.
(1) There are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape or topography that are not applicable to other land or structures in the same district;
(2) Aliteral interpretation of the provisions of these zoning regulations would create an unnecessary hardship and would deprive the applicant of rights commonly enjoyed by other property owners within the district in which the property is located;
(3) Granting the variance requested will not confer upon the property of the applicant any special privileges that are denied to other properties of the district in which the applicant’s property is located;
(4) Relief, if granted, will be in harmony with the purpose and intent of these regulations and will not be injurious to the neighborhood or general welfare in such a manner as will interfere with or discourage the appropriate development and use of adjacent land and buildings or unreasonably] affect their value;
(5) The special circumstances are not the result of the actions of the applicant;
(6) The variance requested is the minimum variance that will make possible the legal use of the land, building, or structure ; and
(7) The variance is not a request to permit a use of land, building or structures which are not permitted by right in the district involved.
We note that Section 113-120 of the City’s Zoning Ordinance describes variance decisions as “administrative or quasi-judicial,” but that characterization is not determinative. “[S]ub-stance matters far more than form, and the courts need not ‘capitulate to the label that a government body places on its action.’ " Keystone Knights,
See also OCGA § 5-4-3 (“When either party in any case in any inferior judicatory or before any person exercising judicial powers is dissatisfied with the decision or judgment in the case, the party may apply for and obtain a writ of certiorari by petition to the superior court for the county in which the case was tried, in which petition he shall plainly and distinctly set forth the errors complained of. . . .”).
We note at the outset of this discussion that the initial cases expressing the local-ordinance requirement did not involve zoning variances, but rather conditional or special use permits. See, e.g., City of Atlanta v. Wansley Moving & Storage Co.,
Wansley distinguished Martin Marietta on the ground that the local zoning ordinance in Martin Marietta provided for judicial review by certiorari. See Wansley,
In Bentley, the Court said in a footnote: “In granting a variance the Board of Zoning Appeals must consider whether the factual situation of a given individual’s property warrants relief from the general zoning ordinance under the standards set out by the delegating authority; thus, it can be argued that it is acting in a quasi-judicial capacity when making this decision.”
See Ga. Const, of 1983, Art. Ill, Sec. VI, Par. IV (a) (“Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, except that the General Assembly may by general law authorize local governments by local ordinance or resolution to exercise police powers which do not conflict with general laws.”); Art. IX, Sec. II, Par. I (a) (“The governing authority of each county shall have legislative power to adopt clearly reasonable ordinances, resolutions, or regulations relatingto its property, affairs, and local government for which no provision has been made by general law and which is not inconsistent with this Constitution or any local law applicable thereto. . . .”); Art. IX, Sec. II, Par. IV (“The governing authority of each county and of each municipality may adopt plans and may exercise the power of zoning. This authorization shall not prohibit the General Assembly from enacting general laws establishing procedures for the exercise of such power.”).
A pending appeal would be dismissed based on today’s decision only if it was also brought from a quasi-judicial zoning decision by petition for mandamus rather than by certiorari and the local ordinance did not provide for certiorari.
Given our conclusion, we need not delve into which party is right on this point.
We note that even if the trial court’s ruling allowing the mandamus claim had been correct, its ruling on the injunction would still be reversed. See Short v. City of Cornelia,