Zoning Issues Facing Metro City And County Attorneys

Presented by:
Brandon L. Bowen
JENKINS & BOWEN, P.C.
15 South Public Square
Cartersville, Georgia 30120 (770) 387-1373

TABLE OF CONTENTS

IIntroduction1
IIProceedings before the Local Governing Body
  1. Administrative Remedies Must Be Exhausted
  2. Constitutional Objections Must Be Raised
  3. Appeals From Zoning Decision Must Be Filed Promptly
  4. As to ZPL Requirements, Cross T's & Dot I's

1

3

5

7

IIIProceedings in Superior Court
  1. The Nature of the Case
  2. Standing
  3. Form of the Action
  4. Claims
  5. Special Use Permits: A Special Case
  6. Damages and Fees

8

9

10

11

17

IVProceedings in Appellate Court
  1. Discretionary Appeal Application
  2. Determine the Proper Appellate Court
  3. When Filing an Application, be Persuasive & Follow the Court's Rules

20

20

22


    • INTRODUCTION

    Like most areas of the law, zoning law has its share of procedural rules that are neither intuitive nor obvious.  This applies at all stages of a zoning or land use case, from the initial application and presentation to the local board of commissioners or city council, through the trial in superior court, to the appeal in the Supreme Court or Court of Appeals.  This paper attempts to provide a basic roadmap that highlights the common issues that arise as the case progresses from the local government to the appellate courts.

    • PROCEEDINGS BEFORE THE LOCAL GOVERNING BODY
      1. Administrative Remedies Must Be Exhausted.

      Filing a rezoning application is generally a necessary prerequisite to filing a zoning suit if the challenge is to the ordinance as applied to the land owner’s property.  Village Centers, Inc. v. DeKalb County, 248 Ga. 177, 178, 281 S.E.2d 522 (1981).  The traditional zoning suit is where a property owner requests a zoning classification, his request is denied, and suit is brought.  The rationale for this requirement is the exhaustion of remedies.  Under general legal principles, courts will not intervene if a legal remedy is available.  The courts have said that filing an application first allows the local governing body the opportunity to fix the problem before suit is brought.  O.S. Advertising Co. of Georgia, Inc. v. Rubin, 263 Ga. 761, 438 S.E.2d 907 (1994).  If a land owner attempts to challenge a zoning ordinance without first filing an application, the case will typically be dismissed.  A recent example of this is Suwanee v Settles Bridge Farm, LLC, -- Ga. -- (2013).

      There, the city was alleged to have adopted ordinances (including a special use permit requirement) for the specific purpose of preventing a development.  Rather than seek a special use permit, the property owner filed suit, and actually obtained a judgment for $1.8 million!  On appeal, the Supreme Court reversed, holding that the property owner could not complain if it did not first try to obtain a special use permit.  See also Marietta Properties, LLC v. City of Marietta -- Ga.App. -- (2012).

      There is an exception to this rule known as the futility doctrine, which applies when it appears that the filing of a rezoning application would be a futile act.  Powell v. City of Snellville, 266 Ga. 315, 467 S.E.2d 540 (1996).  However, the evidence has to be strong that the application would be futile, not just an expectation.  Moreover, in order for the futility doctrine to apply, the decision must be by the same body who rendered the prior decision which allegedly shows futility, and it must be the same issue.  Thus, in the Suwanee v. Settles Bridge Farm, LLC case, the fact that the city council adopted the amending ordinance did not support a futility argument because whether to grant a special use permit to the particular property owner would be a different issue.

      The second exception is when the property owner is making a “facial” challenge to the ordinance, rather than an “as applied” challenge.  A facial challenge is a challenge to the provisions of the ordinance in general, and an as applied challenge is a challenge to the application of a particular zoning classification to the subject property.  The type of case that does not require first filing an application to rezone is a facial challenge to the zoning ordinance.  This is a much broader challenge where the claim is that the ordinance is unconstitutional as to every property within its purview.  No zoning application need be filed, but the burden of proof on the plaintiff bringing a facial challenge is heavy.

      The Supreme Court has said that for a facial challenge to succeed, the challenger must show that the ordinance does not serve a legitimate government interest, and that it deprives the property owner of any economic use of his property.  Greater Atlanta Homebuilders Association v. DeKalb Co., 277 Ga. 295, 588 S.E.2d 694 (2003).  Facial challenges are suited to claims that the very text of the ordinance violates a fundamental right, such as those arising under the First Amendment.  A zoning ordinance could also be attacked as violating the Fair Housing Act, or a variety of other Federal discrimination laws.  Where there is not a fundamental right, the Courts have refused to allow a facial challenge without exhaustion of administrative remedies.

    • Constitutional Objections Must Be Raised.

    It is critical that a property owner wishing to challenge a rezoning decision raises constitutional objections before the local government renders its decision.  Cobb County Board of Commissioners v. Poss, 257 Ga. 393, 359 S.E.2d 900 (1987).  This requirement affords the local government an opportunity to amend the zoning ordinance to the classification sought or to an intermediate classification which is constitutional, and puts them on notice of possible litigation if they do not.  Moreover, it focuses the consideration on the factors affecting the constitutionality of the existing zoning classification.  DeKalb County v. Bremby, 252 Ga. 510, 511, 314 S.E.2d 900 (1984).

    Failure to raise constitutional challenges may result in the property owner being barred from challenging the zoning classification.  The Supreme Court has repeatedly stated that constitutional challenges to a zoning classification cannot be brought in superior court for the first time; they must be raised first with the local governing body.

    Constitutional challenges need not be made with great specificity.  Under Ashkouti v. City of Suwanee, 271 Ga. 154, 516 S.E.2d 785 (1999), the court considerably lightened the requirements for making a constitutional challenge.  No longer are applicants required to state the explicit provision of the constitution that is violated and state the manner of the violation.  Now, a simple assertion that the denial of the rezoning would violate the applicant’s constitutional rights to equal protection and due process is sufficient.  However, failure to satisfy this requirement may bar suit.  See Asso. of Guineans in Atlanta, Inc. v. DeKalb County, -- Ga. -- (2013).

    While the appellate courts often say that the obligation is to put the local government on notice of constitutional objections, the courts have on occasion applied this rule to bar claims that do not present issues of constitutional law.  For example, in Trend Development Corp. v. Douglas County, 259 Ga. 425, 383 S.E.2d 123 (1989), the Supreme Court held that pleas in bar must also be raised before the local government.  In that case, the plea was res judicata based on a prior zoning decision.  Because the County did not raise the res judicata claim while the matter was pending before its governing body, the Supreme Court held that it was waived.  Similarly, in RCG Properties, LLC v. City of Atlanta Bd. of Zoning Adjustment, 260 Ga.App. 355, 579 S.E.2d 782 (2003), in the context of an appeal to the issuance of a permit, the Court of Appeals held that the local government's challenge to the standing of the challenger could not be raised for the first time in court, and was waived because standing was not raised when the case was before the local government.  Under these holdings, the local government, too, has a burden of raising some issues prior to the rezoning decision being made.

    • Appeals From Zoning Decision Must Be Filed Promptly.

    Challenges to zoning decisions generally must be brought within 30 days.  Village Centers, Inc. v. DeKalb County, 248 Ga. 177, 281 S.E.2d 522 (1981).  This requirement can catch property owners unawares when the rezoning at issue is one instituted by the local governing body, such as the adoption of a new zoning ordinance and map.  The new ordinance cannot be challenged years later, without first applying for a rezoning.  Wilson v. City of Snellville, 256 Ga. 734, 352 S.E.2d 759 (1987).  This time limit cannot be extended by the superior courts.

    The 30-day rule has been held to flow from the 30-day appeal time for appeals to the superior court.  Under that case law, the 30 days run from the decision being reduced to writing.  In some jurisdictions, that may only happen when the minutes of the meeting are adopted, which, under the Open Meetings Act, may be weeks later at the next regular council meeting.  See Chadwick v. Gwinnett County, 257 Ga. 59, 354 S.E. 2d 420 (1987); Mortgage Alliance Corp. v. Pickens County, 316 Ga.App. 755 (2012).

    Like other rules, there are exceptions to this rule as well.  The 30-day requirement does not apply universally.  If the property owner is seeking the issuance of a building permit under the existing zoning classification, the proper action would be a petition for a writ of mandamus, and neither the 30-day requirement, nor the rezoning application requirement, would exist.  See Martin v. Hatfield, 251 Ga. 638, 308 S.E.2d 833 (1983).  This type of case is not a constitutional challenge to a zoning ordinance, but rather the attempt to force a public officer to do his duty.  The courts view this as attempting to enforce a right established by the current zoning, rather than a challenge to the current zoning.  However, that being said, most practitioners will bring a suit even vaguely resembling a zoning suit within 30 days to prevent a challenge to its timeliness and to preserve the opportunity to bring constitutional challenges.

    In addition, in cases concerning improper notice, which is to say, a denial of procedural due process, the courts have allowed challenges much later, even years later.  The reasoning is that without due process, the rezoning is void and can be challenged at any time, as it was void.  Golden v. White, 253 Ga. 111, 316 S.E.2d 460 (1984).  In the Golden case, it did not matter that the persons bringing the due process challenge for lack of notice did not even live in the area at the time of the rezoning and could not possibly have received notice.  The court found that rezoning runs with the land and not the person, and if the notice was defective, the rezoning is defective.

    • As to ZPL Requirements, Cross T's & Dot I's.

    The Zoning Procedures Law (ZPL), O.C.G.A. § 36-66-1 et seq., was adopted in 1986, under the grant of authority in the Constitution given to the State to impose procedures on planning and zoning.  Ga. Const., Art. 9, Sec. 2, Para. IV.  The ZPL contains minimal procedural requirements, but courts have repeatedly held that they are mandatory.  Prior to the hearing, the important issue is whether the proper public advertisement has run and whether the proper sign has been erected.  The advertisement must show the time, place and purpose of the hearing, and if the application is by anyone other than the local government itself, it must show the location of the property, the present zoning classification, and the proposed zoning classification.  The sign containing the same information must be erected on the property at least 15 days prior to the hearing.

    The Supreme Court has required strict compliance with the terms of the Zoning Procedures Law.  McClure v. Davidson, 258 Ga. 706, 373 S.E.2d 617 (1988).  Hence, even a one-day defect in the timing can render the zoning void.  As a practical matter, the staff of the local government typically handles much of this aspect, but it is

    something to be followed closely.  If the time limits have not been satisfied, ask for a tabling of the application to ensure all requirements are met.

    The ZPL trumps procedures that may exist in city or county ordinances, and which may even be more restrictive.  In the case of Little v. City of Lawrenceville, 272 Ga. 340, 528 S.E.2d 515 (2000), the neighbor challenging a rezoning contended the city did not follow the procedure required in its charter for adopting a rezoning.  The court held that the Zoning Procedures Law preempts any local procedure applying to rezoning.  Hence, if the provision can be seen as a procedural provision, it may be preempted by the ZPL.

    The first stage of any zoning case will be the proceedings before the governing body, whether of a city or a county.  The following are issues that should be covered at this initial stage.

    • PROCEEDINGS IN SUPERIOR COURT
      1. The Nature of the Case

      Zoning suits are suits in equity, and are heard in superior courts.  Village Centers, Inc. v. DeKalb County, 248 Ga. 177, 178, 281 S.E.2d 522 (1981).  The typical challenge is a challenge to the constitutionality of a zoning ordinance and cannot be tried in state court.  The challenge is generally to the constitutionality of the existing zoning, not whether the proposed zoning is constitutional or provides a higher and better use.  Zoning cases are brought against the city or county making the zoning decision.  Suits against counties should be brought against the county.  Ga. Const., Art. 9, Sec. 1, Para. I.; see also Guhl v. Tuggle, 242 Ga. 412, 249 S.E.2d 219 (1978).  Entities such as planning commissions or boards of zoning appeals are not proper parties as they do not have the power to zone.  Riverhill Community Ass’n v. Cobb County Bd. of Com’rs, 236 Ga. 856, 226 S.E.2d 54 (1976).  If the challenge is to a successful rezoning of another person’s property, the successful applicant should be named as a party.  Riverhill Community Ass’n v. Cobb County Bd. of Com’rs, 236 Ga. 856, 226 S.E.2d 54 (1976).  They would have the right to intervene were they not named, and the decision needs to be binding on them as well.

      City council members or county commissioners are not necessary or proper defendants in their individual capacity.  They can be named in their official capacity, but that may be superfluous in a challenge to a rezoning denial.  When mandamus is sought, however, a public officer must be named, and the local government itself is not a proper party.  See City of Homerville v. Touchton, 282 Ga. 237, 647 S.E.2d 50 (2007)(here, failing to name a public official resulted in the dismissal of the suit).  A claim of personal wrongdoing can be brought against individual government officials; otherwise, officials have legislative immunity in their individual capacity against challenges in zoning suits.  Whipple v. City of Cordele, 231 Ga.App. 274, 499 S.E.2d 113 (1998).

    • Standing.

    Property owners have standing to file suits regarding their own property.  Similarly, persons who have an interest in property, such as a contingent contract, have been held to have standing to bring a rezoning challenge.  Gifford Hill & Co. v. Harrison, 229 Ga. 260, 191 S.E.2d 85 (1972).  The issue is less clear with neighboring property owners, who the courts have held must show a special interest different from the area in general that has been specifically damaged.  This can be difficult to show, and may require appraisers or other expert testimony showing how the neighbor’s special interest has been damaged.

    • Form of the Action.

    Zoning appeals are frequently either brought as declaratory judgment actions or mandamus cases.  Sometimes they are simply styled appeals.  The courts have given some discretion to the local government as to how an administrative appeal proceeds, holding that there can be a direct appeal, if the ordinance so provides, or otherwise it should go by mandamus.  Beugnot v. Coweta County, 231 Ga.App. 715, 500 S.E.2d 28 (1998).  An administrative appeal would be to a permit or variance denial.  Mandamus, under O.C.G.A. § 9-6-20 et seq., has some of its own rules, including a very short timeframe for the hearing.  Thus, the well-prepared applicant can get its case ready, file mandamus and seek a quick hearing, leaving the local government little time to prepare.  The courts have even approved requiring such an appeal to go by writ of certiorari, under O.C.G.A. § 5-4-1 et seqJackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995).

    The zoning appeal will generally be decided by the judge, as the constitutionality of a zoning decision is not a jury question.  Dover v. City of Jackson, 246 Ga.App. 524, 541 S.E.2d 92 (2000).  Further, the appropriate decision, if the court finds the current zoning unconstitutional, is not to rezone the property, but only to order the property rezoned in a constitutional fashion.  Town of Tyrone v. Tyrone LLC, 275 Ga. 383, 384, 565 S.E.2d 806 (2002).

    This last point is one the local government attorney should keep in mind when defending the case, because, in the event that the local government loses, the judge may order the property rezoned in a specific manner, particularly if the parties submit proposed orders.  That would be error, but appeals are discretionary and often not granted.  So it is generally good practice to advise the court that, should the existing zoning classification be found to be unlawful, the proper remedy would be to direct that the property be rezoned.

    • Claims.
      1. TAKINGS

      In a zoning case, the most common challenge is to the constitutionality of the existing zoning classification under a takings analysis.  DeKalb County v. Dobson, 267 Ga. 624, 482 S.E.2d 239 (1997).  This is not an easy challenge, because the zoning ordinance is presumptively valid.  Id., 267 Ga. at 626; Gradous v. Bd. of Commr’s of Richmond County, 256 Ga. 469, 471, 349 S.E.2d 707 (1986).  “The presumption that a governmental zoning decision is valid can be overcome only by a plaintiff landowner’s showing by clear and convincing evidence that the zoning classification is a significant detriment to him, and is insubstantially related to the public health, safety, morality and welfare.  Only after both of these showings are made is a governing authority required to come forward with evidence to justify a zoning ordinance as reasonably related to the public interest.  If a plaintiff landowner fails to make a showing by clear and convincing evidence of a significant detriment and an insubstantial relationship to the public welfare, the landowner’s challenge to the zoning ordinance fails.”  Id.

      The significant detriment can be difficult to show.  See Gwinnett Co. v. Davis, 271 Ga. 158, 517 S.E.2d 324 (1999)(evidence that landowner would suffer economic loss without rezoning was insufficient to show substantial detriment).  There are a number of cases which defense attorneys can rely upon to show that a property has not suffered a significant detriment.  “[A] significant detriment to the landowner is not shown by the fact that the property would be more valuable if rezoned, or by the fact that it would be more difficult to develop the property as zoned than if rezoned.”  DeKalb v. Dobson, 267 Ga. at 626.  Delta Cascade Partners, II v. Fulton Co., 260 Ga. 99, 100, 390 S.E.2d 45 (1990).  “[E]vidence only that it would be difficult to develop the property under its existing zoning or that the owner will suffer an economic loss unless the property is rezoned is not sufficient to support the legal conclusion that the owner suffers a significant detriment.”  Gwinnett Co. v. Davis, 268 Ga. 653, 654, 492 S.E.2d 523 (1997); see, Holy Cross Lutheran Church, Inc. v. Clayton Co., 257 Ga. 21, 23, 354 S.E.2d 151 (1987).

      The courts recognize that increasing density or intensity almost always increases value, but that does not prove that the current zoning is unconstitutional.  “[I]n zoning challenges, the pertinent question is not whether rezoning would increase the value of property, but rather whether the existing zoning classification serves to deprive a landowner of property rights without due process of law.  Hence, the evidence that the subject property would be more valuable if rezoned border on being irrelevant.”  DeKalb Co. v. Dobson, 267 Ga. at 626; see, DeKalb Co. v. Chamblee Dunwoody Hotel Partnership, 248 Ga. 186, 190, 281 S.E.2d 525 (1981).  The notion that a property is not zoned for its “highest and best use,” a concept appraisers like to use, does not show that the existing zoning imposes a significant detriment.  Gwinnett Co. v. Davis, 268 Ga. at 654.  Furthermore, “the fact that the property currently has no economic return to the owners is immaterial; by definition, undeveloped property never offers owners any economic return.”  DeKalb Co. v. Chamblee Dunwoody Hotel Partnership, 248 Ga. at 190.  All this is not to say that the significant determinant requirement is an insurmountable burden; courts can and have found a significant detriment on numerous occasions, but the property owner will need to be prepared to put forth a detailed and compelling case on this point.

      Legacy Inv. Group, LLC v. Kenn, 279 Ga. 778, 621 S.E.2d 453 (2005), addresses this point.  There, the property owner had paid about $12,000 per acre for land zoned for agricultural use with the presumption that it would be rezoned for residential uses.  When the rezoning was denied, the property owner appealed, arguing that it could not be developed in an economically feasible fashion based upon the purchase price.  The superior court found that the fact that the property owner overpaid for the property did not mean that the zoning ordinance was a significant detriment to the property.  On appeal, the Supreme Court reversed because the evidence was that the property would have to be purchased for no more than just over $5,000 per acre in order to be developed in an economically viable manner, and the county's appraiser said the property was worth between $5,000 and $9,000 per acre.  Thus, giving the non-movant the benefit of all the inferences from the evidence, the property would have to be purchased for several thousand dollars less per acre than it was worth in order to be developed in an economically feasible manner.  The court also mentioned that the property was not suited for agricultural uses; while not discussed much by the court, this would seem to be an important piece of evidence.

      In City of Tyrone v. Tyrone, LLC, 275 Ga. 383, 565 S.E.2d 806 (2002), the Supreme Court found that part of a property subject to the appeal of a rezoning denial suffered a significant detriment, but part did not.  The property in question was partially zoned for agricultural-residential uses, and partly zoned for office-institutional uses.  The property owner wanted it all zoned for commercial uses.  The court held that there was evidence that the portion zoned for agricultural-residential could not be developed as zoned, but there was no such evidence as to the office-institutional portion, and so the trial court erred in finding a significant detriment to that portion of that property.  In reaching this conclusion, the Supreme Court discussed the fact that the owner had not tried to develop the property for office-institutional uses and the fact that there was evidence of a need for such property in the community and region.  From these cases, we can see that the evidence needed is not that the property can make more money with the rezoning, but that the property is not suited for development under the existing zoning classification, such that it cannot be used in an economically feasible manner under the existing zoning classification.

      After a plaintiff shows significant detriment, he still needs to prove that the current zoning is insubstantially related to the public health, safety, morality and welfare.  DeKalb Co. v. Dobson, 267 Ga. at 626; Browning v. Cobb County, 259 Ga. 430, 383 S.E.2d 126 (1989)(showing of detriment outweighed by public benefit of present zoning classification).  This requires proof that there is no logic to the existing zoning classification.  It can be shown by pointing to the incompatibility of the subject zoning with the neighborhood or the changing character of the neighborhood.  However, it can be difficult to prove if the property is simply on the boundary of the zoning district, which is commonly referred to as a “fringe area.”  See Holy Cross Lutheran Church v. Clayton County, 257 Ga. 21, 354 S.E.2d 151 (1987).

      The degree of consistency between the existing and proposed zoning and the comprehensive or future land use plan is a common element in this analysis.  In City of Atlanta v. TAP Associates, 273 Ga. 681, 683, 544 S.E.2d 433 (2001), the court placed great emphasis on the fact that the existing zoning was consistent with the land use plan of Atlanta:  “[T]he city’s zoning decision is consistent with the policies and long-range planning goals for the area as adopted in the comprehensive development plans and the Buckhead transit station report….The fact that TAP presented evidence that its proposed mixed-use development would also protect the single-family neighborhood is irrelevant.  The issue is not whether the city could have made a different decision or better designation in zoning TAP’s property, but whether the choice that it did make benefits the public in a substantial way.”  273 Ga. at 685.  Thus, if an existing zoning classification is consistent with the comprehensive plan, it is more likely to be upheld.

      Takings claims are challenging to prove under Georgia law, but under federal law they are even more so.  Federal courts have held that the property owner must show that the property has been deprived of all economically viable use.  Corn v. City of Lauderdale Lakes, 95 F.3d 1066, 1072 (11th Cir. 1996).  Cobb County v. McColister, 261 Ga. 876, 413 S.E.2d 441 (1992).  Federal takings claims are generally not ripe unless the state has failed to provide a remedy.  A federal claim cannot ripen if the state provides method of redress for a taking without just compensation, and the federal courts have held that Georgia provides such a remedy.  See Bickerstaff Clay Products Co., Inc. v. Harris County, Ga., 89 F.3d 1481, 1491 (11th Cir. 1996).  Because of these holdings, the aggrieved property owner will normally want to bring the takings claim in state court.

    • DUE PROCESS

    Due process encompasses a more limited challenge, mainly in the context of procedural due process.  Substantive due process has been held to be subsumed into takings, and so does not typically constitute a separate challenge to a rezoning decision, but procedural due process may be a fertile avenue to challenge a rezoning decision.  The unsuccessful applicant can claim that there was some defect in the zoning procedure and perhaps obtain another rezoning hearing.  The applicant may also be able to challenge the adoption of the underlying zoning ordinance.

    Basic procedural due process requires notice and a hearing.  The procedures required in conducting a rezoning hearing have been codified in the Zoning Procedures Law, O.C.G.A. § 36-66-1 et seq.  The basis requirements are published and posted notice and sufficient equal time at the hearing for all parties to speak (at least ten minutes per side).  Failure to comply with the Zoning Procedures Law may void the zoning ordinance.  McClure v. Davidson, 258 Ga. 706, 373 S.E.2d 617 (1988); Tilley Properties, Inc. v. Bartow County, 261 Ga. 153, 401 S.E.2d 527 (1991).


    There are a number of different claims for the practitioner to consider in the zoning appeal pleading. 
    • Special Use Permits:  A Special Case

    While the grant or denial of a permit such as special use permit had long been considered an administrative zoning decision, the Zoning Procedures Law was amended in 1998 to list them amongst the matters referred to as “legislative” zoning decisions, such that require compliance with the ZPL for notice and a hearing.  Yet, rather than converting special use permit decisions to legislative decisions, with de novo review at the superior court, or rather than continuing to treat them as quasi-judicial decisions, the Supreme Court has adopted a sort of hybrid analysis.  Special use permits are called legislative decisions, and the legislative discretion of the Board is honored, but the review is on the record and they are upheld if there is “any evidence” to support the decision.  See, e.g., Gwinnett County v. Ehler Enterprises, 270 Ga. 570(1), 512 S.E.2d 239 (1999).City of Alpharetta v. Estate of C.R. Sims, 272 Ga. 680, 682, 533 S.E.2d 692 (2000), Fulton County v. Congregation of Anshei Chesed, 275 Ga. 856, 859(2), 572 S.E.2d 530 (2002).  Jackson County v. Earth Resources, 280 Ga. 389, 390, 627 S.E.2d 569 (2006); City of Roswell v. Fellowship Christian School, 281 Ga. 767, 642 S.E.2d 824 (2007).

    The “any evidence” standard being easy to satisfy (since it basically equates to abuse of discretion), and there not being an opportunity to present new evidence, expert testimony and so forth, the grant or denial of a special use permit becomes almost impossible to overturn, unless the Board’s action is simply arbitrary.  In the City of Roswell case, supra, the only evidence against the requested school football stadium appeared to be neighbor comments that there were two other stadiums in the vicinity and that traffic would be negatively impacted.  The Court held, “Neither the superior court nor this Court has any discretion to exercise in connection with FCS’s application for a Permit. Whether to approve or to deny that application was addressed solely to the exercise of Appellants’ sound discretion in accordance with the factors enumerated in the ordinance. There was evidence to support the decision to deny the Permit based upon the negative impact the stadium would have on traffic in the area.”  281 Ga. at 769.  Special use permits have become the best (or worst) of both worlds:  the boards are considered to have discretion to apply the criteria in the ordinance governing the issuance of the permit, and the decision can be supported by any evidence.

    • Damages and Fees.

    There has been little success on the part of plaintiffs in seeking damages for unconstitutional rezonings.  Generally, the remedy for an unconstitutional zoning is getting the property rezoned in a constitutional manner.  One avenue that has been tried is to assert a temporary taking.  That is, for the period that a property was subjected to an unconstitutional zoning, what are the damages?  Some cases in federal court have awarded temporary takings, but Georgia courts have rejected them unless the owner can show a complete deprivation of all economic use.  See Powell v. City of Snellville, 275 Ga. 207, 563 S.E.2d 860 (2002).

    Obtaining any damages from a city generally requires compliance with the ante litem notice provisions of O.C.G.A. § 36-33-5.  42 U.S.C. § 1983 claims have not been very successful in state court either, in that the state courts do not view there having been a violation of the federal law of zoning unless the taking is complete and there has been a deprivation of all economic use of the property.  See Dover v. City of Jackson, 246 Ga.App. 524, 541 S.E.2d 92 (2000).  Moreover, raising federal claims under § 1983 may result in the case being removed to federal court.
    On occasion an award has been made for attorney fees in zoning suits under O.C.G.A. § 9-15-14 and under the Anti-SLAPP statute.  See Rabun County v. Mountain Creek Estates, LLC, 280 Ga. 855, 632 S.E.2d 140 (2006); EarthResources, LLC v. Morgan County, 281 Ga. 396, 638 S.E.2d 325 (2006); Hagemann v. City of Marietta, 287 Ga.App. 1, 650 S.E.2d 363 (2007).


    • PROCEEDINGS IN APPELLATE COURT
      1. Discretionary Appeal Application.

      Once a judgment has been obtained in superior court, the traditional 30-day appeal clock applies, and the first question is whether the appeal should be by application or direct.  O.C.G.A. § 5-6-35(a)(1) provides that appeals from superior courts reviewing decisions of local administrative agencies require an application for appeal.   In Trend Development Corporation v. Douglas County, 259 Ga. 425, 383 S.E.2d 123 (1989), the Supreme Court held that all appeals in zoning cases required an application because they were appeals from court decisions “reviewing a decision of an administrative agency within the meaning of O.C.G.A. § 5-6-35(a)(1).”   The holding in Trend established what the court termed a bright-line rule for both litigants and the appellate courts:  if the underlying subject matter is zoning, an application for discretionary appeal must be filed.  There have been a number of appeals over the years turning on whether a discretionary appeal was actually required; however, the question has somewhat been resolved because O.C.G.A. § 5-6-35(j) has been revised to state that an application will count as a notice of appeal if a direct appeal is authorized.  In most any case related to zoning, filing an application would be prudent.

    • Determine the Proper Appellate Court.

    A less critical issue would be the proper court for an appeal.  The Supreme Court and Court of Appeal’s respective jurisdiction is defined by the Georgia Constitution of 1983, in Article 6, Sections 5 and 6.  The Court of Appeals has jurisdiction over all cases not reserved to the Supreme Court.  Ga. Const., Art. 6, Sec. 5, Para. III.  The Supreme Court has exclusive appellate jurisdiction over all cases involving the constitutionality of a law or ordinance.  Ga. Const., Art. 6, Sec. 6, Para. II.  For a zoning case, the question is generally the constitutionality of the zoning ordinance.  As a constitutional decision, the Supreme Court gets the case.  “Where an appeal from a decision of a court reviewing a zoning decision involves a constitutional question, this Court has jurisdiction; where it does not involve a constitutional question, the Court of Appeals has jurisdiction.”  259 Ga. at 425.  Of course, Art. 6, Sec. 6, Para. III gives the Supreme Court jurisdiction over “all cases involving extraordinary remedies,” and mandamus is an “extraordinary remedy,” thus suggesting the Supreme Court should take jurisdiction over all mandamus cases, whether or not they involve a constitutional question.  In practice, that does not always happen.  On occasion, the Supreme Court has sent a constitutional case down to the Court of Appeals on the premise that the constitutional question is well settled and simply requires application of the law to the facts.

    Either court will transfer to the proper court, so there is no penalty for getting things wrong, other than delay.  If the Court of Appeals transfers a case to the Supreme Court, asserting that court has jurisdiction, the Supreme Court has jurisdiction to send it back if it disagrees.  Some say that, when in doubt, file in the Supreme Court, so that if you get transferred, at least it will only happen once.  However, due to internal court

    rules about how applications for discretionary review are granted, the odds of getting a discretionary appeal granted may be better in the Court of Appeals.

    • When Filing an Application, Be Persuasive and Follow the Court's Rules.

      When an application is required, the application itself will be the most important brief filed in the appeal.  Practically speaking, it must convince the reader that there is error, and it is a significant enough case to justify review.  Neither appellate court takes many zoning appeals, so the task of the practitioner is to show that this case is one of those that deserves appellate review.  In no way should the application be considered a form or formality; it must be a compelling and detailed explanation of the merits and importance of the case.  Both appellate courts have particular rules for the procedure and standard for granting a discretionary appeal, and those rules should be followed strictly.  (Rules 33 & 34 for the Supreme Court; Rule 31 for the Court of Appeals.)