City of Dunwoody v. Discovery Practice Mgmt., Inc., A16A0058

• Decision Date: 14 July 2016
• Docket Number: A16A0058
• Citation: 338 Ga.App. 135,789 S.E.2d 386
• Parties: City of Dunwoody v. Discovery Practice Management, Inc. et al.
• Court: Georgia Court of Appeals

338 Ga.App. 135

789 S.E.2d 386

City of Dunwoody

v.Discovery Practice Management, Inc. et al.

A16A0058

Court of Appeals of Georgia.

July 14, 2016

Cecil Guy McLendon Jr., Leonid Michael Felgin, Marietta, for Appellant.

Joshua Barrett Belinfante, Vincent Robert Russo Jr., Atlanta, for Appellee.

Rickman, Judge.

This court granted a discretionary appeal application by the City of Dunwoody (the “City”) from the judgment of the DeKalb County Superior Court reversing the decision of the City of Dunwoody Zoning Board of Appeals (the “ZBA”) in a dispute regarding whether the proposed use of property controlled by Discovery Practice Management, Inc., d/b/a Center For Discovery and DV Dunwoody, LLC (hereinafter collectively “Discovery”) fit within the existing zoning classification of the district where the property is located. The ZBA determined that the City's earlier classification of Discovery's proposed use of the property as a family personal care home was erroneous. But the superior court reversed the ZBA's determination, and thus, reinstated the classification. The City appeals from this superior court order, contending that the superior court erred by: (1) denying its motion to dismiss a renewed petition for certiorari Discovery had filed pursuant to OCGA §§ 5–4–3 and 9–2–61 (a) ; and (2) reversing the ZBA's decision. For the followings reasons, we affirm the judgment.

1. The City contends that the renewal provisions of OCGA § 9–2–61 (a) did not entitle Discovery to dismiss a timely filed petition for writ of certiorari, then renew the petition after the expiration of the applicable limitation period.

Pursuant to OCGA § 9–2–61 (a), a case commenced within the applicable limitation period may be dismissed and recommenced within six months even if the limitation period has expired. The privilege of dismissal and renewal under OCGA § 9–2–61 does not apply to a case dismissed on the merits or to a case which was void when dismissed, but it does apply if the dismissed case was merely voidable. A suit is also void and incapable of renewal under OCGA § 9–2–61 (a) if there has been a judicial determination that dismissal is authorized ... It is settled that the renewal provisions of OCGA § 9–2–61 apply to certiorari cases brought pursuant to OCGA § 5–4–1 et seq.

(Citations and punctuation omitted.) Buckler v. DeKalb County , 290 Ga.App. 190, 191, 659 S.E.2d 398 (2008).

Discovery filed its first petition for writ of certiorari in the superior court on July 10, 2014, within the 30–day limitation period of OCGA § 5–4–6 (a). Pursuant to OCGA § 5–4–6 (b), the petition and writ were required to be personally served upon the ZBA, as respondent-in-certiorari.¹ The parties did not dispute that service of the petition and writ were perfected on the City (the opposing party or “defendant-in-certiorari”). However, the City disputed service on the ZBA, and in September 2014, Discovery voluntarily dismissed the action. At the time of dismissal, no judicial determination had been entered on the petition.

In October 2014, Discovery re-filed the petition for writ of certiorari, citing OCGA §§ 5–4–3² and 9–2–61 (a). Subsequently, the City filed a motion to dismiss the re-filed petition on the basis that it was void ab initio because the original petition and writ were never properly served on ZBA pursuant to OCGA § 5–4–6 (b) before the action was dismissed and that, therefore, the dismissed action was void and not subject to renewal under OCGA § 9–2–61 (a). Discovery filed a response to the motion to dismiss, arguing that the City failed to meet its burden of showing improper service of the original petition and writ because, inter alia, personal service was not required for renewal, and that even assuming personal service was required, Discovery had shown good cause to excuse such service.

The trial court determined that the requisite personal service pursuant to OCGA § 5–4–6 was not perfected upon the ZBA,³ but that the lack of personal service as to ZBA did not render the petition void and, thus, a bar to renewal. For the reasons explained below, we hold that lack of service on ZBA, the respondent, did not make the original action void.

[T]he failure to deliver, within the time required by the statute, the petition and writ to the officer whose decision is under review ... is a mere irregularity which can be cured either by a waiver by the officer himself, evidenced by the filing of his answer, or by an extension of time by the judge of the superior court.

Bass v. Milledgeville , 121 Ga. 151, 153, 48 S.E. 919 (1904) ; see Hudson v. Watkins , 225 Ga.App. 455, 456, 484 S.E.2d 24 (1997). Accordingly, failure to comply with service requirements regarding the officer whose decision is under review “will not render the proceeding void,” Bass , 121 Ga. at 153, 48 S.E. 919, but instead, voidable. Given that a case is capable of renewal under OCGA § 9–2–61 (a) if when the case was dismissed it was merely voidable, OCGA § 9–2–61 (a) applies in the instant case, and the superior court properly denied the City's motion to dismiss Discovery's renewed petition.

The City argues that pursuant to Fisher , 212 Ga.App. 635, 442 S.E.2d 762 (1994), Discovery's failure to comply with service requirements of OCGA § 5–4–6 rendered the original petition void unless notice was given to the ZBA pursuant to OCGA § 5–4–3 (by the clerk of court), and that because no notice pursuant to OCGA § 5–4–3 was given in the instant case, the petition was void. We disagree. In Fisher, service of the original petition was not perfected upon the tribunal whose decision was under review, and this Court held that the petition, although properly dismissed for lack of service under OCGA § 5–4–6 (b), could be renewed pursuant to OCGA § 9–2–61. Fisher , 212 Ga.App. at 636–637, 442 S.E.2d 762. Although this Court acknowledged that the tribunal had received notice of the petition pursuant to a procedure authorized by statute (OCGA § 5–4–3 ), this Court did not hold that such notification was a prerequisite to renewal. Id. Nothing in Fisher contradicts the Bass rule. Therefore, the trial court properly denied the City's motion to dismiss Discovery's renewed petition.⁴

2. The City contends that the superior court erred by, among other things, reversing the ZBA's decision by ruling that neighbors were not entitled to notice of the city planner's classification decision and by ruling that the ZBA wrongly construed the city zoning ordinance to require notice.

The record shows the following. Discovery sought to open a six bed home for the treatment of adolescents with eating disorders. In January 2014, the City of Dunwoody planner/director of sustainability (“city planner”) issued a letter (“confirmation”) to Discovery, classifying Discovery's stated proposed use for the subject property as a family personal care home, and informing Discovery that such was a permitted “use by right” in the single-family residential zoning district in which the property was located.⁵ In April 2014, some nearby residents who had found out (in March 2014) about the use to which the property (an existing home) was going to be put, filed an application for administrative appeal with the ZBA. The ZBA voted to accept the appeal and held hearings on the matter. The neighbors challenged the classification of the land use as a personal care home, arguing that the city planner was not informed of material facts when she made the classification decision and that Discovery's intended use for the property was as a medical treatment facility, which was not a permitted use.

The ZBA sustained the appeal, determining that the “staff decision to classify this as a personal care home was in error ... [o]r incorrect.” Discovery thereafter appealed ZBA's decision to the superior court, which ruled that, among other things, the neighbors' appeal to the ZBA was untimely and the ZBA erred as a matter of law by accepting the appeal and reading into the ordinance a notice requirement that otherwise did not exist.

“We review the construction of a zoning ordinance under a de novo standard.” (Citations omitted.) Burton v. Glynn County , 297 Ga. 544, 546, 776 S.E.2d 179 (2015). The scope of review of the superior court is “limited to all errors of law and determination as to whether the judgment or ruling below was sustained by substantial evidence.” OCGA § 5–4–12 (b). “[T]he substantial-evidence standard is effectively the same as the any-evidence standard.” (Citation and punctuation omitted.) City of Atlanta Govt. v. Smith , 228 Ga.App. 864, 865, 493 S.E.2d 51 (1997).

Pursuant to Section 27–458 of the Dunwoody Zoning Ordinance in effect at the time of the appeal to the ZBA, the neighbors—assuming they had standing⁶ —had 30 days from the date of the city planner's decision to appeal the decision, and the ordinance did not require that notice of the decision be given to neighboring property owners by mail, by signage, or by publication in a newspaper.⁷ And in the instant case, the neighbors filed their appeal 98 days after the date of the decision. At the ZBA hearings, the neighbors argued that they were unaware of the confirmation within 30 days of its issuance, and that unless the ordinance was construed as impliedly requiring that notice be given to them, the appeal provisions of the zoning ordinance violated due process. The ZBA accepted the appeal, thus, impliedly reading a notice provision into the ordinance.

“The construction of a zoning ordinance is a question of law for the courts. Zoning ordinances are to be strictly construed in favor of the property owner. Since statutes or ordinances which restrict an owner's right to freely use his property for any lawful purpose are in derogation of the common law, they must be strictly construed and never extended beyond their plain and explicit terms.”

Haralson County v. Taylor Junkyard of Bremen, Inc. , 291 Ga. 321, 323–324, 729 S.E.2d 357 (2012) ; Cherokee County v. Martin , 253 Ga.App. 395,...