Lead Opinion
Eric Schumacher and Mike Nyden, who are residents and residential property owners in the City of Roswell (the “City”), brought this action for declaratory and injunctive relief in the Superior Court of Fulton County to challenge the City’s approval of a new zoning ordinance and map that rezoned their respective properties. After the superior court granted the City’s motion for judgment on the pleadings and denied the plaintiffs’ request for an interlocutory injunction as moot, the plaintiffs filed this direct appeal. Because the plaintiffs were required to appeal by discretionary application, we dismiss this appeal for lack of jurisdiction.
As reflected in the pleadings and attached exhibits, the plaintiffs are citizens and taxpayers of the City and own residential real property located there. In February 2014, after conducting two public meetings, the Council of the City of Roswell (the “City Council”) approved a new zoning ordinance called the Unified Development Code (“UDC”) and a new zoning map. The UDC substantially replaced the City’s existing zoning ordinance and rezoned the plaintiffs’ properties.
Following the adoption of the UDC and new zoning map, the plaintiffs commenced the present action against the City,
The City answered, denying the plaintiffs’ allegations, and attached and incorporated by reference to their answer certified copies of the UDC, the new zoning map, and the minutes of the two City Council meetings where the UDC and map were discussed and approved. The City also filed a motion for judgment on the pleadings, seeking dismissal of all of the plaintiffs’ claims. The plaintiffs opposed the City’s motion for judgment on the pleadings and filed a motion for interlocutory injunction to prohibit enforcement of the UDC during the pendency of the litigation. After conducting a hearing in which the parties presented oral argument, the trial court granted the City’s motion for judgment on the pleadings on all of the plaintiffs’ claims and denied the plaintiffs’ motion for an interlocutory injunction as moot.
The plaintiffs filed a direct appeal from the trial court’s order, challenging only the dismissal of their state and federal constitutional due process claims.
Two principal statutes determine the method for pursuing appeals in our Court: OCGA § 5-6-34 describes the trial court judgments and orders that parties may appeal directly, while OCGA § 5-6-35 describes the cases in which parties must file an application for discretionary appeal. Rebich v. Miles,
OCGA § 5-6-35 (a) (1) provides that “[ajppeals from decisions of the superior courts reviewing decisions of. . . state and local administrative agencies” must be brought by application for discretionary appeal. See Hamryka v. City of Dawsonville,
Construing OCGA § 5-6-35 (a) (1), our Supreme Court held in Trend Dev. Corp. v. Douglas County,
A case filed in either appellate court that involves zoning must come by application when “it is an appeal from the decision of a court reviewing a decision of an administrative agency” within the meaning of OCGA § 5-6-35 (a) (1). In essence, this Court determined in Trend and its progeny that a zoning decision made by a local government was the action of a local administrative agency within the meaning of OCGA § 5-6-35 (a) (1), and an appeal from a superior court decision reviewing the local administrative agency’s decision must come by way of application pursuant to [OCGA] § 5-6-35 (a) (1).
(Citations omitted.) Fulton County v. Congregation of Anshei Chesed,
Additionally, since Trend, the Supreme Court of Georgia has clarified that OCGA § 5-6-35 (a) (1) applies not only to cases where a party appeals directly to the superior court from the local government’s zoning decision,
Here, the plaintiffs’ amended complaint seeking declaratory and injunctive relief challenged the City Council’s zoning decision to approve the UDC and new zoning map on constitutional due process and other grounds, and the plaintiffs sought to have the UDC and map declared null and void and to prevent their enforcement. None of the plaintiffs’ requests for relief were independent of the City Council’s decision to approve the UDC and map, and none of the requests for relief could be granted or denied by the superior court without affirming or reversing the City Council’s decision. Under these circumstances, we conclude that the plaintiffs’ appeal was from the superior court’s review of a local government zoning decision, requiring appeal by discretionary application under OCGA § 5-6-35 (a) (1). See Trend Dev. Corp.,
The plaintiffs, however, argue that they were not required to file a discretionary application because the City Council’s decision to approve the UDC and map was a “legislative” rather than an “administrative” zoning decision. Specifically, the plaintiffs draw a distinction between a “legislative” decision by the City Council to approve a new zoning ordinance and map as occurred in this case and a more specific “administrative” decision by the City Council regarding the zoning of a specific parcel of land. According to the plaintiffs, a discretionary application is only required in the latter circumstance.
The plaintiffs’ effort to distinguish between a “legislative” and “administrative” zoning decision by a local government is misguided in the context of evaluating our appellate jurisdiction in zoning cases. Trend construed a county commission’s vote on a rezoning proposal as a local administrative agency decision for purposes of determining the method of appeal, see Trend Dev. Corp., 259 Ga. at425-426 (1), (2), despite the fact that in other contexts, the Court had held that “commissioners in voting on either a zoning or re-zoning proposal are functioning in a legislative capacity.” Olley Valley Estates v. Fussell,
Furthermore, it is undisputed that the City Council’s approval of the UDC and map rezoned the properties of the plaintiffs and other property owners. Clearly, Trend and its progeny establish that rezoning decisions as to particular parcels of property are local administrative agency decisions under OCGA § 5-6-35 (a) (1), see Trend Dev. Corp.,
Additionally, our Supreme Court has held that a discretionary application is required to appeal a superior court ruling on a property owner’s constitutional claim challenging the validity of a city zoning ordinance on its face. O S Advertising Co. of Ga. v. Rubin,
Rubin undercuts the plaintiffs’ argument that we should draw a distinction between a “legislative” and “administrative” zoning decision and require a discretionary application only in appeals from the superior court’s review of a local government zoning decision that addresses a particular land parcel. Rather, Rubin reflects that a discretionary appeal is required more broadly in cases like the present one, where the superior court reviews property owners’ facial challenge to the validity of a city zoning ordinance, which is in essence a challenge to a city council’s decision to adopt the ordinance in the first instance. See Rubin,
Lastly, we note that there is an exception to the discretionary application requirement under OCGA § 5-6-35 (a) (1) in cases where the plaintiff who challenged the zoning decision in superior court was not a party, and could not have been a party, in the local government’s zoning proceeding. See Ladzinske,
the word “party” is used in this context not in the technical sense of whether the challenger in superior court was a formally named party in the administrative process, but rather in the generic sense of whether the challenger participated in the administrative proceedings at issue (or could have participated but purposely did not).
Hamryka,
Of course, there were no specific “parties” in the technical sense to the two public meetings conducted by the City Council in which the UDC and map were discussed, but the certified minutes of those meetings reflect that members of the public were allowed to participate and make comments before the final vote was taken. Indeed, Plaintiff Schumacher attended and participated in the first public meeting and voiced his concerns over the UDC, and a letter from plaintiffs’ counsel was read at the second public meeting that voiced objection to the manner and procedure in which the UDC was being adopted. Thus, this is not a case where only certain individuals were permitted to participate in the administrative zoning proceedings; rather, the proceedings were open to all members of the public for their participation, including the plaintiffs and their counsel. Given these circumstances, we conclude that the exception to the discretionary appeal requirement for “non-parties” to administrative zoning proceedings does not apply
For these combined reasons, we conclude that the plaintiffs’ appeal of the superior court’s grant of the City’s motion for judgment on the pleadings is “an appeal from the decision of a court reviewing a decision of an administrative agency within the meaning of OCGA § 5-6-35 (a) (1)” that had to proceed by discretionary application. Congregation of Anshei Chesed,
Appeal dismissed.
Notes
A third plaintiff named in the complaint is not a party to this appeal. The original complaint named the Mayor of Roswell and City Council members as additional defendants, but they were dropped as defendants in the plaintiffs’ amended complaint.
The plaintiffs originally filed their direct appeal in the Supreme Court of Georgia, which transferred the case to this Court.
The plaintiffs also rely on Sprayberry v. Dougherty County,
Concurrence Opinion
concurring fully and specially.
I concur fully with the majority that this appeal is subject to dismissal based upon O S Advertising Co. of Ga., Inc. v. Rubin,
OCGA § 5-6-35 (a) (1) does not provide that appeals in zoning cases can be brought only by means of the discretionary appeal process. By its terms, that statute provides, in relevant part, only that “[a]ppeals from decisions of the superior courts reviewing decisions of . . . local administrative agencies” must be brought by means of that process.
O S Advertising Co.,
Here, the three counts of Appellants’ complaint . . . sought to invalidate the zoning decision of the Dawsonville City Council because, in making its decision, the council allegedly failed to abide by certain local ordinances and state laws. Thus, Appellants’ complaint asked the superior court to review a decision of a local administrative agency, and they are now appealing the decision of the superior court.
Hamryka,
I believe that we must also strive to reconcile OCGA § 5-6-35 (a) (1) with OCGA § 5-6-30, which directs us to construe the Appellate Practice Act in such a manner as to reach the merits of cases brought to us “except as may be specifically referred to” in that article. (Emphasis supplied.)
When the above issues, which were discussed by Justice Fletcher, writing for the majority, and highlighted by a dissenting Justice Carley in O S Advertising Co., are combined with our Supreme Court’s instruction to give statutory text its “ordinary, logical and common meanings,” it is difficult, to reconcile this result. (Citation and punctuation omitted.) McKinney v. Fuciarelli,
However, “this Court has no authority to overrule or modify a decision made by the Supreme Court of Georgia, as ‘[t]he decisions of the Supreme Court shall bind all other courts as precedents.’ ”