Bentley v. Chastain, s. 33420

• Decision Date: 04 October 1978
• Docket Number: Nos. 33420,33421,s. 33420
• Citation: 249 S.E.2d 38,242 Ga. 348
• Parties: BENTLEY et al. v. CHASTAIN et al. HAWN v. CHASTAIN et al.
• Court: Georgia Supreme Court

Page 38

249 S.E.2d 38

242 Ga. 348

BENTLEY et al. v. CHASTAIN et al.

HAWN v. CHASTAIN et al.

Nos. 33420, 33421.

Supreme Court of Georgia.

Argued April 10, 1978.

Decided Oct. 4, 1978.

Downey, Cleveland & Moore, John H. Moore, Joe Parker, Marietta, for appellants in No. 33420.

Alston, Miller & Gaines, G. Conley Ingram, Peter M. Degnan, Atlanta, J. Douglas Henderson, Marietta, for appellees in No. 33420.

Smith, Cohen, Ringel, Kohler & Martin, John A. Howard, Altanta, for appellant in No. 33421.

Alston, Miller & Gaines, G. Conley Ingram, Peter M. Degnan, Atlanta, J. Douglas Henderson, Awtrey, Parker, Risse, Mangerie & Brantley, G. Grant Brantley, Marietta, for appellees in No. 33421.

Ben F. Smith, Marietta, amicus curiae.

UNDERCOFLER, Presiding Justice.

Vulcan Materials Company, which operates a granite quarry in Cobb County, and Harold Chastain, the lessor of the property, sought a variance from zoning restrictions prohibiting quarrying within 4,000 feet of a residential use and 2,000 feet from any other use. Neighbors, Bentley and Hawn, appeared at the hearing before the Cobb County Board of Zoning Appeals to object, but the variance was granted. The neighbors appealed to the Cobb Superior Court pursuant to Code Ann. § 69-1211.1 ¹ and Section 12B of the Cobb County Zoning and Planning Act, ² and demanded a de novo jury trial as provided in these laws. Vulcan and Chastain filed motions to dismiss on the ground that this statute and ordinance were unconstitutional. The trial court agreed insofar as these provisions allow a de novo jury determination of variance decisions rendered by the board of zoning appeals. It also required the neighbors to add the board as an additional party to the appeal. The neighbors were granted an interlocutory review of these rulings. We hold that the provisions of the statute and ordinance authorizing de novo jury appeals are unconstitutional as violating the separation of powers doctrine, and affirm.

1. Vulcan and Chastain argue that the powers delegated to the zoning board of appeals are legislative ³ in nature, while the neighbors urge it functions as a judicial ⁴ body. We do not find either argument controlling. The Board of Zoning Appeals is an administrative agency and its powers are distinct from the legislative and judicial powers established in the Georgia Constitution.

The Georgia Constitution provides that the "legislative, judicial, and executive powers shall forever remain separate and distinct, . . ." Ga.Const.1976, Art. I, Sec. II, Par. IV (Code Ann. § 2-204). It further states that the "judicial powers of this State shall be vested in a Supreme Court, a Court of Appeals, Superior Courts, Probate Courts, Justices of the Peace, Notaries Public who are ex-officio Justices of the Peace, and such other Courts as have been or may be established by law." Ga.Const., Art. VI, Sec. I, Par. I, (Code Ann. § 2-3001). An administrative agency is "a governmental authority, Other than a court and other than a legislative body, which affects the rights of private parties through either adjudication or rulemaking." Davis, Treatise on Administrative Law, Vol. 1, § 1:2 at p. 9 (2d Ed., 1978). (Emphasis supplied.) Its powers are well described by the Maryland Court of Appeals: "The primary function of administrative agencies is to advance the will and weal of the people as ordained by their representatives the Legislature. These agencies are created in order to perform activities which the Legislature deems desirable and necessary to forward the health, safety, welfare and morals of the citizens of this State. While these agencies at times perform some activities which are legislative in nature and thus have been dubbed as quasi-legislative duties, they in addition take on a judicial coloring in that frequently, within the exercise of their power, they are called upon to make factual determinations and thus adjudicate, and it is in that sense that they are also recurrently considered to be acting in a quasi-judicial capacity. This dual role which administrative agencies play has long been accepted in this State as being constitutionally permissible. (Cits.) However, this authority is not the same and, therefore, is distinguishable from the exercising of the 'judicial powers' of this State . . .." Dept. of Natural Resources v. Linchester Sand etc., Corp., 274 Md. 211, 222, 334 A.2d 514, 522 (1975).

In embarking on an analysis of the judicial review of administrative decisions, we not only consider the nonjudicial role of these agencies, but also must recognize the important function that administrative agencies perform at all levels of government. Whether operating in the federal, state, or local sphere, agencies provide a high level of expertise and an opportunity for specialization unavailable in the judicial or legislative branches. They are able to use these skills, along with the policy mandate and discretion entrusted to them by the legislature, to make rules and enforce them in fashioning solutions to very complex problems. Thus, their decisions are not to be taken lightly or minimized by the judiciary. Review overbroad in scope would have the effect of substituting the judgment of a judge or jury for that of the agency, thereby nullifying the benefits of legislative delegation to a specialized body. Since the agency is exercising neither judicial nor legislative, but administrative powers, the separation of powers doctrine along with this policy of respect must play a role in determining the nature of the review of agency decisions by the courts.

It is axiomatic that, under the separation of powers, non-judicial functions may not be imposed on a constitutional court. E. g., Davis, Administrative Law Treatise, Vol. 4 (1st Ed., 1958); Federal Radio Comm. v. General Electric Co., 281 U.S. 464, 50 S.Ct. 389, 74 L.Ed. 969 (1930); Dept. of Natural Resources v. Linchester Sand etc., Corp., supra; American Beauty Homes Corp. v. Louisville etc., Planning & Zoning Comm., 379 S.W.2d 450 (Ky.1964); 2 Am.Jur.2d 402 et seq., Administrative Law, §§ 579-582. "The duties or functions which the legislature may not transfer to the judiciary have been characterized as either legislative or executive. That many of these may be delegated to administrative agencies has long been acknowledged. Their descriptive classification is not, however, the significant point. The vice lies in the fact that the duties or functions sought to be conferred upon the courts lie beyond the scope of judicial power.

"If the legislature cannot impose upon the courts the administrative duty or function of making an initial discretionary decision, it cannot do so by the fiction of an appeal which requires the court to adjudicate upon administrative rather than judicial considerations." American Beauty Homes Corp. v. Louisville &c. Planning & Zoning Comm., supra, p. 454. (Footnotes omitted.)

The statute and ordinance here on appeal provide for a de novo jury review of the zoning board of appeals' decisions. Therefore, insofar as this statute and ordinance empower the courts to readjudicate questions which have already been committed to the administrative discretion of the zoning board of appeals by the governing authorities of this state and Cobb County, they are unconstitutional as burdening the courts with a nonjudicial function. Dept. of Natural Resources v. Linchester Sand etc., Corp., supra; American Beauty Homes Corp. v. Louisville etc., Planning & Zoning Comm., supra.

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