Clayton Cnty. v. New Image Towing & Recovery, Inc.
| Decision Date | 02 July 2019 |
| Docket Number | A19A0298 |
| Citation | 351 Ga.App. 340,830 S.E.2d 805 |
| Court | Georgia Court of Appeals |
| Parties | CLAYTON COUNTY v. NEW IMAGE TOWING AND RECOVERY, INC. |
351 Ga.App. 340
830 S.E.2d 805
CLAYTON COUNTY
v.
NEW IMAGE TOWING AND RECOVERY, INC.
A19A0298
Court of Appeals of Georgia.
July 2, 2019
Freeman Mathis & Gary, Dana K. Maine, Matthew M. Weiss, Jack R. Hancock, for appellant.
Fincher Denmark, Steven M. Fincher, Winston A. Denmark, Danielle M. Matricardi, for appellee.
Markle, Judge.
In this appeal, we are asked to decide whether the Clayton County Board of Zoning Appeals ("BZA") may require a business license permit applicant to comply with sections 6.2 and 6.321 of the Clayton County Zoning Ordinance ("the Zoning Ordinance"), and to
submit a site plan of its proposed use of the property to show such compliance. After the BZA concluded that New Image Towing and Recovery, Inc. ("New Image"), was required to comply with those sections, New Image filed a petition for writ of certiorari in the Superior Court of Clayton County challenging the BZA’s decision. The superior court reversed the BZA’s decision. We granted Clayton County’s ("the County’s") application for discretionary appeal, and the County now appeals, arguing that the superior court applied an improper standard of review and erred in refusing to consider Article 1 of the Zoning Ordinance. We conclude that the superior court misinterpreted the applicable ordinances, and therefore reverse.
On a petition for writ of certiorari, "[t]he 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." (Citation and punctuation omitted.) City of Dunwoody v. Discovery Practice Mgmt. , 338 Ga. App. 135, 138 (2), 789 S.E.2d 386 (2016) ; OCGA § 5-4-12 (b). "In the appellate courts, the standard of review is whether there is any evidence supporting the decision of the local governing body, not whether there is any evidence supporting the decision of the superior court." (Citation and punctuation omitted.) Jackson County v. Earth Res. , 280 Ga. 389, 391, 627 S.E.2d 569 (2006).
So viewed, the record reflects that New Image, a towing and wrecker service, leased a facility located in Morrow, Georgia, in Clayton County’s Heavy Industrial ("HI") zoning district. The property had previously been occupied by a fencing company. In October 2016, the Clayton County Planning and Zoning Administrator ("the Administrator") verified that towing and wrecking was a permitted use of the property, and New Image was able to pursue its application for a business license. During the application process, New Image met with the Technical Review Committee ("TRC"), which included the County Water Authority, the Transportation and Development Department, the Planning and Zoning Department, and the Fire Department. The TRC directed New Image to submit a site plan to facilitate its review, but New Image refused to do so.2 New Image’s application for a business license was then suspended.
In an e-mail dated March 2017, the Administrator responded to New Image’s request for a written decision and confirmed that New Image was required to submit a proposed site plan to show how it would comply with parking and other development requirements
under the Zoning Ordinance. New Image appealed this decision to the BZA, and requested the issuance of its business license.
At a hearing before the BZA, New Image challenged the application of sections 6.2 and 6.32 of the Zoning Ordinance to its use of the property. Section 6.2 requires compliance with the minimum development standards under Article 6, including the parking standards set forth in section 6.32, when a "structure, parking area or other site feature ... [is] enlarged, altered , or expanded." (emphasis supplied).
New Image argued that the term "altered" related to physical alterations only; therefore, because it did not intend to improve or alter the physical features of the property, sections 6.2 and 6.32 did not apply, and the site plan was thus unnecessary. The Administrator testified that it was common to request a site plan during the business license application process, and that, in this instance, the site plan was necessary to evaluate the effects of the proposed change in the use of the land on the environment, and public safety and welfare. The BZA unanimously voted to uphold the Administrator’s decision and found that New Image must submit a site plan to show its compliance with sections 6.2 and 6.32.
New Image filed a petition for writ of certiorari to the superior court, challenging the decision of the BZA. Following a hearing, the superior court reversed the BZA’s decision. It strictly construed section 6.2 in favor of New Image as the property owner, and found that section 6.2 applies only when enlarging, altering, or expanding physical features of the property; therefore, New Image was not required to adhere to the parking standards in section 6.32. The superior court further found that New Image was not required to submit a site plan because there is no such express requirement in Article 6. We granted the County’s application for discretionary review, and this appeal followed.
1. In related enumerations of error, the County argues that the superior court erred by reviewing de novo the BZA’s decision. The County further argues that the superior court misinterpreted section 6.2 by ignoring its plain meaning and impermissibly deferring to New Image’s interpretation of that section. We conclude that the superior court erred in its construction of Article 6.
The County asserts that this matter does not involve construction of the Zoning Ordinance because the BZA made a factual finding that New Image’s license application was subject to sections 6.2 and 6.32, and, with regard to the requirement for the site plan, the Administrator was exercising her administrative discretion. The County thus contends that, instead of reviewing the BZA’s decision de novo, the superior court was confined to consider "[w]hether the
agency acted beyond the discretionary powers conferred upon it, abused its discretion, or acted arbitrarily or capriciously with regard to an individual’s constitutional rights." (Citation and punctuation omitted.) City of Atlanta Bd. of Zoning Adjustment v. Midtown North, Ltd. , 257 Ga. 496, 499 (4), 360 S.E.2d 569 (1987).
The standard of review in a certiorari proceeding before a superior court varies depending on whether the matter involves an issue of fact or an issue of law. OCGA § 5-4-12 (b) provides that the superior court’s "review [is] limited to all errors of law and determination as to whether the judgment or ruling below was sustained by substantial evidence." Because "the substantial-evidence standard is effectively the same as the any-evidence standard," courts apply the any-evidence standard when reviewing issues of fact. (Citation and punctuation omitted.) City of Atlanta Govt. v. Smith , 228 Ga. App. 864, 865 (1), 493 S.E.2d 51 (1997). But when reviewing a question of law, such as the interpretation of a zoning ordinance, the scope of review is de novo. See
SDS Real Property Holdings, Ltd. v. City of Brookhaven , 341 Ga. App. 862, 864 (1), 802 S.E.2d 100 (2017).
Here, the BZA did more than simply make a factual finding; rather, it did so in the context of the Zoning Ordinance, specifically with respect to the meaning of "altered" in section 6.2. Thus, the superior court was compelled, as we are, to construe the ordinance in determining whether the agency overreached its authority. Northside Corp. v. City of Atlanta , 275 Ga. App. 30, 31 (1), 619 S.E.2d 691 (2005) ; see also SDS Real Property Holdings, Ltd. , 341 Ga. App. at 864 (1), 802 S.E.2d 100 ; City of Atlanta Bd. of Zoning Adjustment , 257 Ga. at 497-498 (1), 360 S.E.2d 569. And,
[w]e review the construction of a zoning ordinance under a de novo standard. ... Zoning ordinances are to be strictly construed in favor of the property owner. Because 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.
(Citation and punctuation omitted.) SDS Real Property Holdings , 341 Ga. App. at 862, 802 S.E.2d 100. Thus, the superior court’s error was not in the standard of review it applied, but in the conclusion it reached upon construing the ordinance. Importantly, the superior court failed to consider the common rules of statutory construction in its analysis.
Our principles of statutory construction are well settled and apply in our construction of an ordinance. (Citation omitted.)
Daniel Corp. v. Reed , 291 Ga. 596, 597, 732 S.E.2d 61 (2012).
As such, we look first to the text of the ordinance, and if the text is clear and unambiguous, we look no further,...
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