Lead Opinion
The Roswell City Council enacted a new Unified Development Code (the “Code”) to govern land use issues; the Code included a zoning map. Several Roswell property owners filed a lawsuit in superior court challenging the process by which the City Council enacted the Code. When the superior court ruled against the property owners, they filed a direct appeal. The Court of Appeals dismissed their direct appeal, concluding that their lawsuit was a “zoning case” under our decisions in Trend Dev. Corp. v. Douglas County,
As alleged in their amended complaint, Eric Schumacher and Mike Nyden (“Plaintiffs”) are citizens and taxpayers of the City of Roswell (“City”) and own residential property there.
As detailed in meeting minutes attached as an exhibit to the answer to the amended complaint, Plaintiff Schumacher had attended and participated in the first public meeting, voicing his concerns about the proposed Code. In particular, he expressed his concerns about density and the public’s ability to understand the proposal. At the second public meeting, a letter from Schumacher’s counsel was read into the record. The letter argued that the City had not complied with state statutory procedures for adoption of a new zoning code. Among other things, the letter argued that the City had violated the law by inaccurately telling the public that the proposal would not change existing property rights. In neither meeting did Schumacher or his counsel address any issue with the zoning of any particular parcel of property
Following adoption of the Code, Plaintiffs filed suit against the City in the Superior Court of Fulton County.
The City denied Plaintiffs’ allegations, and attached and incorporated by reference to its answer copies of the Code, the new zoning map, and the minutes of the two City Council meetings where the Code and map were discussed and approved. The City also filed a motion for judgment on the pleadings, seeking dismissal of all of Plaintiffs’ claims. Plaintiffs opposed the City’s motion and moved for an interlocutory injunction to prohibit enforcement of the Code during the pendency of the litigation. Following a hearing, the superior court granted the City’s motion for judgment on the pleadings as to all of Plaintiffs’ claims and denied as moot Plaintiffs’ motion for an interlocutory injunction. Plaintiffs filed a direct appeal of the adverse ruling, challenging only the dismissal of some of their claims against the ordinance. The City moved to dismiss Plaintiffs’ direct appeal for lack of jurisdiction, arguing that Plaintiffs were required to comply with the application procedures for discretionary appeal. The Court of Appeals agreed and dismissed the direct appeal. Schumacher v. City of Roswell,
1. The enactment of the Code was not a “decision ” of an “administrative agencfy]” under OCGA § 5-6-35 (a) (1).
We have advised litigants that they must “review the discretionary application statute to see if it covers the underlying subject matter of the appeal. If it does, then the party must file an application for appeal as provided under OCGA § 5-6-35.” Rebich v. Miles,
Our case law makes clear that an act of an administrative agency is a “decision” within the meaning of this statute only when it is a determination of an “adjudicative nature.” See State of Ga. v. Intl. Keystone Knights of the Ku Klux Klan, Inc.,
The conclusion that enactment of a new development code is an exercise of legislative power — and thus not an adjudicative “decision” under the statute — is compelled by our case law:
Administrative determinations of a legislative nature are prospective in application, general in application, and often marked by a general factual inquiry that is not specific to the unique character, activities or circumstances of any particular person. Determinations of an adjudicative nature, on the other hand, are immediate in application, specific in application, and commonly involve an assessment of facts about the parties and their activities, businesses, and properties.
Id. at 401 (4) (a) (citations and punctuation omitted). Nothing about the adoption of a new development code fits within this definition of “decision.”
The lawsuit filed in superior court challenged only one action: the Roswell City Council’s adoption of the Code. The suit seeks no individualized zoning-related relief. Nothing in the adoption of the Code focused on “the unique character, activities or circumstances of any particular person,” or involved an “assessment of facts about the parties and their activities, businesses, and properties.” There was no individualized determination by any level of city government. The adoption of the Code was prospective in nature, as the adopting City ordinance provided that the Code was to take effect after June 1, 2014, and was to apply for the entire City. Thus, the adoption of the Code was not a “decision” as we have interpreted that statutory term.
Moreover, the City Council was not acting as an “administrative agenc[y].” The enactment of ordinances is at the core of the City Council’s legislative functions. Indeed, the City arguedbelow that the defendant City Council members should be dismissed from the suit by virtue of their legislative immunity because they had “engaged in a legislative function” in adopting the Code. OCGA § 5-6-35 (a) (1) requires both a “decision” and an “administrative agenc[y]”; this case has neither, and thus the statute does not require an application for discretionary appeal.
2. Trend and Rubin do not apply here.
Trend and Rubin do not require a different result. Trend and Rubin both announced that applications are required to appeal in “zoning cases.” Rubin,
In Trend, an appeal was taken from the denial of a landowner’s petition to rezone certain property That’s the sort of individualized
In Rubin, the agency in question was the City of Atlanta Board of ZoningAdjustment, likely an “administrative agenc[y]The appeal was taken in the superior court from the denial of a landowner’s application for a sign ordinance variance, and then appealed to this Court.
Trend announced that “appeals in zoning cases” would “henceforth” have to be brought by application under the statute. Trend,
We acknowledge there is one case like this one in which we have found an application to be required. In Outdoor West, Inc. of Ga. v. Coweta County,
As this is an appeal from a decision in a zoning case, appeal to this Court is by the application procedures of OCGA § 5-6-35. O S Advertising Co. v. Rubin, 267 Ga. 723 , 724 (1) (482 SE2d 295 ) (1997); Trend Dev. Corp. v. Douglas County,259 Ga. 425 (383 SE2d 123 ) (1989). In fact, Outdoor West, Inc., has, prior to this direct appeal, filed such an application (Outdoor West, Inc. of Georgia v. Coweta County, Georgia, S98D1665). The application was denied by this Court on August 14,1998. Accordingly, this direct appeal is dismissed.
Id. at 527. Two justices dissented, explained that what the majority believed was a “zoning case” was actually a stand-alone constitutional challenge to a sign ordinance, and concluded the direct appeal was appropriate. See id. at 527-528 (Carley, J., dissenting, joined by Hunstein, J.) (noting absence of any evidence that there had been any “final administrative decision or that Outdoor West ha[d] prosecuted any appeal therefrom by any method”).
Outdoor West is a clear outlier; we have refused to require an application in other zoning-related cases that were not appealing decisions of administrative agencies. Compare Mid-Ga. Envtl. Mgmt. Group, LLLP v. Meriwether County,
We reverse the decision of the Court of Appeals and remand for proceedings consistent with this opinion.
Judgment reversed.
Notes
A third plaintiff named in the complaint has not filed an appearance in the appeal.
The original complaint named the Mayor of Roswell and City Council members as additional defendants, but they were not named as defendants in the Plaintiffs’ amended complaint.
Notwithstanding the dissent’s extended discussion of stare decisis, today we decide only that Trend and Rubin do not apply here. Whether they should be reconsidered in an appropriate case is another question for another day.
If the City Council’s adoption of a new zoning code were the “decision” of a “local administrative agenc [y]the fact that Plaintiffs did not appeal from that decision and instead filed a stand-alone lawsuit challenging the decision would not entitle them to a direct appeal; the statute may not be so easily evaded. See Hamryka v. City of Dawsonville,
It is not clear exactly what the City means by saying Plaintiffs’ property was “rezoned,” i.e., to what extent the Code changed what uses of Plaintiffs’ property were permissible. The City does not point to anything in the voluminous attachments to its answer that addresses that question, and the amended complaint does not allege that Plaintiffs’ property was “rezoned.”
Concurrence Opinion
concurring.
I join the Court’s opinion in full, including its conclusion that the only issue decided today is that a freestanding challenge to the facial validity of a zoning ordinance, unaccompanied by any complaint regarding an individualized determination impacting a particular parcel of land, does not challenge a “decision” of an “administrative agency” under OCGA § 5-6-35 (a) (1). This decision is consistent with the text of the statute, and accordingly with our responsibility as judges to apply even complicated statutes as they are written by the General Assembly.
That said, I understand and appreciate the concerns of the dissenting opinion regarding the lack of clarity in appellate procedures. More often than not, one would expect a close adherence to the textual demands of a statute to lead to greater clarity in the law; an attorney should be able to turn to the
As illustrated by the numerous divided decisions of this Court over the years, this statute has never been a source of great clarity; even the members of this Court have been unable to agree on which cases fall within the parameters of OCGA § 5-6-35 (a) (1). See, e.g., Fulton County v. Congregation of Anshei Chesed,
Even in the context of zoning, which has purportedly been the subject of a “bright line rule,” this Court has not been able to agree on which cases require an application. See maj. op. at p. 640 (citing Mid-Ga. Envtl. Mgmt. Group v. Meriwether County,
We recently attempted to bring some needed clarity to this interpretive enterprise by explaining in Keystone Knights that decisions can be “adjudicative,” “legislative,” or “executive,” and that an application is required to seek review of “adjudicative” decisions by administrative agencies. State of Ga. v. Intl. Keystone Knights of the Ku Klux Klan, Inc.,
Accordingly, the General Assembly may wish to clarify the scope of the matters that are subject to the discretionary appeal process. Until then, the best path forward — as remarkable as this is — may well be to follow the advice of two leading Georgia appellate treatises and file a discretionary application in every instance where there is any doubt. See McFadden, Brewer & Sheppard, Ga. Appellate Practice with Forms, § 8:12, p. 245 (2016-2017 ed.) (“The uncertainty created by these decisions, while seemingly academic, becomes less so in the context of the principle that the discretionary application requirements apply even within an area specifically referenced in the direct appeal provisions, and the Supreme Court’s reminders that the discretionary application process is intended to reduce its caseload. In that situation, the ‘tie’ may not go to the direct-appeal runner, and either a discretionary application or an application together with a direct appeal would be the wiser course.”); Michael B. Terry, Georgia Appeals: Practice and Procedure with Forms 122 (2015) (“when in doubt consider exercising an ‘abundance of caution,’ such as by filing both a notice of appeal and a discretionary application”).
In fact, the more efficient path would be to file only an application, because this Court has made clear that when an application is filed, but a direct appeal is permitted, we will grant the application under OCGA § 5-6-35 (j). See Cardinal Robotics, Inc. v. Moody,
I am authorized to state that Justice Nahmias joins in this concurrence.
I have my own doubts about whether Keystone Knights may have read “adjudicative” too broadly and “executive” too narrowly, as not every individualized decision is truly adjudicative, no matter how specific or immediate. But that particular issue is not relevant to the outcome here, and it may also be that Keystone Knights leaves sufficient room for the category of “executive” decisions as more cases come before us.
Nor do these questions address the additional layers of complexity that come about in cases that also require some application of OCGA § 5-6-34. See, e.g., Ferguson,
Dissenting Opinion
dissenting.
I respectfully dissent because the opinion of the majority needlessly upturns the well-established, well-founded, and absolutely clear Georgia precedent regarding the appellate procedure in zoning cases to regress toa state of the law which was, and will now again be, abstruse and uncertain.
As noted by the Court of Appeals, the starting point in the determination of the appropriate procedure for pursuing an appeal in the Court of Appeals, and indeed in this Court, is the examination of OCGA § 5-6-34, which outlines lower court judgments and orders that parties may appeal directly, and OCGA § 5-6-35, which prescribes the cases in which parties must file an application for discretionary appeal. Rebich v. Miles,
In this case, the issue is straightforward — whether the Plaintiffs were required by
However, subsequently, in O S Advertising Co. of Ga. v. Rubin,
proposed distinction would create confusion concerning the proper procedure to follow in appeals in zoning cases without providing property owners or zoning authorities any additional review of their substantive claims. Moreover, it would permit litigants to control the appellate procedure, contrary to legislative intent, by raising a facial challenge to every zoning ordinance. . . . More problematic, it would impose on both the parties and this Court the difficult task of determining whether the superior court acted in its role as a “trial court” or as a “reviewing court” in each zoning case. As a result, parties would file both an application and a direct appeal to avoid the risk of reaching a conclusion different from this Court and thus losing their right to any appellate review. Because the decision in Trend provides a clear, efficient, and fair rule, we follow it here and dismiss this direct appeal.
Id. See also Fulton County v. Congregation of Anshei Chesed,
Contrary to the very premise of the majority, Rubin with its application of Trend is direct and controlling precedent in this appeal as a matter of fact and of law. First, although the underlying case in Rubin involved an administrative determination regarding a variance, the sole issue on appeal was a facial challenge to the subject zoning ordinance. What is more, even if the Rubin appeal is viewed as one involving both an administrative decision and a facial attack, this Court’s dismissal of the direct appeal and endorsement of the procedure for discretionary appeal implicitly confirms that Rubin controls the present case; this is so because if the facial challenge would have conferred a right of direct appeal then the administrative decision would also have been a matter of direct appeal in accordance with the mandate of OCGA § 5-6-34 (d).
While Trend has certainly produced a significant and consistent body of law in regard to appellate procedure in zoning cases, as noted in Rubin, the briefly-stated rationale of Trend, i.e., that all zoning cases would require discretionary appeal because they were within the ambit of OCGA § 5-6-35 (a) (1), is problematic. This is especially apparent in the case of a facial due process challenge to a zoning ordinance, where the local administrative agency does not adjudicate the due process question. The express terms of OCGA § 5-6-35 (a) (1) contemplate that there be a “decision” of a state or local “administrative agency,” i.e., a lower tribunal, that is “reviewed” by the superior court.
This approach in zoning cases does stand in contrast to our approach in non-zoning cases. In non-zoning cases, we have said that a “decision” of an administrative agency within the meaning of OCGA § 5-6-35 (a) (1) is one that is adjudicatory in nature, which need not be characterized by formal adjudicative procedures. See State of Ga. v. Intl. Keystone Knights of the Ku Klux Klan,
[w]hen addressing agency determinations that are not quint - essentially executive, the courts routinely have drawn a distinction between determinations that are legislative in nature, on the one hand, and those that are adjudicative in nature, on the other. Although the line between legislation and adjudication is not always easy to draw, there seems to be some agreement about the defining characteristics of these two sorts of administrative determinations. Administrative determinations of a legislative nature are prospective in application,... and often marked by a general factual inquiry that is not specific to the unique character, activities or circumstances of any particular person. Determinations of an adjudicative nature, on the other hand, are immediate in application, specific in application, and commonly involve an assessment of facts about the parties and their activities, businesses, and properties.
Id. at 401 (4) (a) (citations and punctuation omitted). Thus, the determination of whether there has been a “decision” of an administrative agency for purposes of OCGA § 5-6-35 (a) (1) was analyzed in a manner not reflected in Trend/Rubin.
Certainly, the doctrine of stare decisis is an essential part of a well-ordered system of jurisprudence, inasmuch as in most cases, it is of “more practical utility to have the law settled and to let it remain so, than to open it up to new constructions.” Etkind v. Suarez,
[sjtare 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,
The soundness of reasoning is of import in the analysis, but it is not necessarily determinative. McKinney v. Pate,
Admittedly, it is difficult to find the presence of reliance interests. Generally, reliance interests in the context of stare decisis refer to contract interests, property rights, and other substantive rights. Lejeune v. McLaughlin,
The ages of the decisions are significant in relationship to the resulting body of case law. Trend has now been the law of Georgia for nearly three decades, and consequently, has been cited as direct authority in numerous appellate decisions by this Court and the Court of Appeals, and has been highlighted in many secondary sources discussing Georgia jurisprudence. It has effectively functioned as the procedural gatekeeper in zoning cases, often determining the fate of untold parcels of real property. Its progeny Rubin has been the law for 20 years, and has served the same purposes. And as I have noted, the General Assembly, as the body enacting OCGA § 5-6-35 (a) (1), has for these decades been free to take legislative action in order to alter this Court’s interpretation of its legislation. Hubbard v. United States, supra at 696. But, tellingly it has not done so. See Kimble v. Marvel Entertainment,
But, most importantly in this situation is the factor of workability There can be little dispute that the bright line rule of Trend adhered to in Rubin has provided needed clarity and direction to the bench and bar in the all-too-often quagmire of appellate procedure. It leaves no doubt for trial courts, practitioners, and indeed, litigants as to the proper procedure for an appellate challenge of a zoning issue, and therefore, avoids the pitfall of dismissal of a fatally-flawed appeal. The workability of Trend cannot credibly be questioned. And, neither can the significance of the factor of utility be in doubt because if a matter of appellate procedure proves unworkable, due to vagueness, confusion, complexity, or otherwise, then the stated rationale for the procedure, even if reasonable in theory, is of little import. See Nahmias, J., concurring in Allaben v. State,
Contrary to any claim that the workability of a precedent is not a reason for retaining it, the United States Supreme Court and this Court have held otherwise. In Kimble v. Marvel Entertainment,
This Court too has recently made plain that “the doctrine of stare decisis strongly counsels adherence to our longstanding, consistent, and workable precedents.” Savage v. State of Ga.,
To regress to pre-Trend puts the litigants, the attorneys, and the courts in the untenable position of determining the proper characterization of every action by zoning commissions or zoning boards, who typically perform a mixture of administrative, quasi-judicial, and legislative functions. The discretionary appellate procedure unequivocally ruled as applicable in all zoning cases by Trend and its progeny has long proved to be a clear and workable system for handling appeals in zoning cases, and this Court should not now stray from it.
does not deny a party in a zoning case the right to appellate review. It merely permits this Court to consider the appellant’s enumerations of error in a streamlined process that [potentially] omits oral arguments and a written opinion.
Id. at 724 (1).
Here, the Plaintiffs’ amended complaint seeking declaratory and injunctive relief challenged the City Council’s zoning decision to approve the Unified Development Code (“UDC”) and the new zoning map on 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 the map, and none of the requests for relief could be granted or denied by the superior court without affirming, reversing, or in some manner rendering a judgment in regard to the City Council’s zoning decisions. Under these circumstances, in which an appeal is taken from a judgment of a superior court reviewing a zoning decision, there should be no direct appeal. Plaintiffs’ appeal to the Court of Appeals was properly a matter of discretion under OCGA § 5-6-35, rather than one of right under OCGA § 5-6-34. Accordingly, the Court of Appeals correctly dismissed the plaintiff petitioners’ direct appeal, and its judgment should be affirmed by this Court.
As Circuit Judge Vance observed in his dissent in Gulf States Manufacturers, Inc. v. N.L.R.B., 598 F2d 896 (5th Cir. 1979), the opinion of the majority “supplants clarity with needless confusion. The end and purpose of this change are not apparent. If the objective is to advance the state of the law, I respectfully submit that it fails.” Id. at 911.
I am authorized to state that Justice Benham and Judge Colvin join in this dissent.
Although the zoning appeal in Trend itself was not dismissed, the Court used it as the vehicle to announce the rule of appellate procedure to be followed in all future zoning cases as of the date Trend appeared in the Georgia Reports Advance Sheets.
The opinion also noted that in Ross v. Mullis Tree Service,
OCGA § 5-6-34 (d) provides:
Where an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or else where . For purposes of review by the appellate court, one or more judgments, rulings, or orders by the trial court held to be erroneous on appeal shall not be deemed to have rendered all subsequent proceedings nugatory; but the appellate court shall in all cases review all judgments, rulings, or orders raised on appeal which may affect the proceedings below and which were rendered subsequent to the first judgment, ruling, or order held erroneous. Nothing in this subsection shall require the appellate court to pass upon questions which are rendered moot.
We noted in Keystone Knights that many administrative decisions are executive in nature, and thus, would not fall under the provisions of OCGA § 5-6-35 (a) (1).
If a facial due process challenge to the applicable zoning ordinance was allowed to confer a right of direct appeal, this might prove incentive to add such a claim to otherwise routine zoning litigation, or to bypass the administrative process entirely and rely solely on such a facial challenge burdening both the trial and appellate courts with a matter more expeditiously resolved by the local zoning commission or board.
The policy of Trend/Rubin has been applied only in the arena of zoning.