City of Cumming v. Flowers

• Citation: 300 Ga. 820,797 S.E.2d 846
• Decision Date: 06 March 2017
• Docket Number: S16A1884,S16A1885
• Parties: CITY OF CUMMING et al. v. FLOWERS et al. Kerley Family Homes LLC et al. v. Flowers et al.
• Court: Supreme Court of Georgia

300 Ga. 820

797 S.E.2d 846

CITY OF CUMMING et al.

v.FLOWERS et al.

Kerley Family Homes LLC et al.

v.Flowers et al.

S16A1884

S16A1885

Supreme Court of Georgia.

Decided: March 6, 2017

Dana B. Miles, Lauren Clipp Giles, Miles, Patterson, Hansford, Tallant, LLC, 202 Tribble Gap Road, Suite 200, Cumming, Georgia 30040-2540, for Appellant in S16A1884.

Frank O. Brown, Jr., Weissman, PC, One Alliance Center, 4th Floor, 3500 Lenox Road, Atlanta, Georgia 30326-3400, James Stuart Teague, Jr., Teague & Chambless, LLLP, 110 Samaritan Drive, Suite 109, Cumming, Georgia 30040, for Appellee in S16A1884.

Frank O. Brown, Jr., Weissman, PC, One Alliance Center, 4th Floor, 3500 Lenox Road, Atlanta, Georgia 30326-3400, for Appellant in S16A1885.

James Stuart Teague, Jr., Teague & Chambless, LLLP, 110 Samaritan Drive, Suite 109, Cumming, Georgia 30040, Lauren Clipp Giles, Dana B. Miles, Miles Hansford & Tallant, LLC, 202 Tribble Gap Road, Suite 200, Cumming, Georgia 30040, for Appellee in S16A1885.

NAHMIAS, Justice.

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 , 265 Ga. 792, 462 S.E.2d 361 (1995) —to the extent that they say that when the local zoning ordinance does not provide for a petition for certiorari, mandamus is the proper way to appeal a quasi-judicial variance decision. That line of procedural precedent was founded on unsound reasoning, and we now abandon it in order to ensure that quasi-judicial zoning decisions are appealed the same way under OCGA § 5-4-1 throughout the State, just as § 5-4-1 is consistently applied to other quasi-judicial decisions of local entities.

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 required setback to 5 feet for the lots that were already built (lots 38-42) and 15 feet for the lots that had not yet been built (lots 21-37). Kerley represented that it was constructing the buildings too close to the adjoining property because the surveyor had made a mistake.

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 BZA held 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 Kerley'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, 2017.¹ We granted the applications on June 22, 2016, and the City defendants and Kerley defendants both filed timely notices of appeal. The City defendants' case was orally argued on November 7, 2016, and the Kerley defendants' case was submitted for decision on the briefs. The two cases, which raise the same issue, have been consolidated for decision in this opinion.

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 , 260 Ga. 489, 490-491, 396 S.E.2d 883 (1990). Although the concept that the form of appeal of certain zoning decisions may depend on the local ordinance has been mentioned in several cases from this Court and the Court of Appeals, as discussed below, its foremost articulation in the context of a quasi-judicial zoning variance decision was in Jackson v. Spalding County , 265 Ga. 792, 462 S.E.2d 361 (1995). In Jackson , the local zoning ordinance provided for certiorari and the appealing parties had filed a petition for certiorari; the dispositive issue in the case was whether certiorari under OCGA § 5-4-1 was ever available to challenge a zoning variance decision. This Court clearly held—for the first time—that a zoning variance decision was quasi-judicial and thus subject to certiorari review under § 5-4-1. See Jackson , 265 Ga. at 793-794, 462 S.E.2d 361. But the Court also said that "[w]hen the zoning ordinance fails to prescribe a method of judicial review," mandamus is the proper method to appeal a variance decision. Id. at 793, 462 S.E.2d 361. It is this part of Jackson , which we will refer to as "the local-ordinance requirement," that the City and Kerley defendants have asked us to reconsider and reject.

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 ordinance. 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, "[c]ertiorari 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 , 112 Ga.App. 579, 579, 145 S.E.2d 770 (1965).

No party here challenges Jackson 's main holding—that the variance decision at issue there was quasi-judicial. See 265 Ga. at 794-795, 462 S.E.2d 361. Applying Jackson 's reasoning on that point, it is clear that the BZA's variance decision in this case was also quasi-judicial. Pursuant to the City's Zoning Ordinance, in ruling on Kerley's requested variance, the BZA (composed of the Mayor and the City Council) was required to consider "whether the facts applying to a specific piece of property warrant relief from zoning under the standards set in the [local] ordinance." Id. at 793, 462 S.E.2d 361.² Thus, as in...