Cobb County v. Herren, A97A2262

• Citation: 230 Ga.App. 482,496 S.E.2d 558
• Decision Date: 06 February 1998
• Docket Number: No. A97A2262,A97A2262
• Parties: , 98 FCDR 755 COBB COUNTY v. HERREN et al.
• Court: Georgia Court of Appeals

Page 558

496 S.E.2d 558

230 Ga.App. 482, 98 FCDR 755

COBB COUNTY v. HERREN et al.

No. A97A2262.

Court of Appeals of Georgia.

Feb. 6, 1998.

Certiorari Denied May 14, 1998.

Parks F. Huff, Athens, for appellant.

Moore, Ingram, Johnson & Steele, John H. Moore, John K. Moore, Marietta, for appellees.

RUFFIN, Judge.

Appellees Sara Allgood Herren and her family ("the Allgood family") filed a Petition for Certiorari in superior court seeking a review of the Cobb County Board of Zoning Appeals' denial of the family's request for a land disturbance permit for a mobile home park they owned. Cobb County, as respondent in certiorari, moved to dismiss the petition because it did not contain a bond or pauper's affidavit as required by OCGA § 5-4-5 and was not endorsed with the sanction of the appropriate judge in accordance with OCGA § 5-4-3. The superior court denied the motion, permitted the Allgood family to amend their petition in accordance with OCGA § 5-4-10 and sanctioned the petition. Cobb County filed an application for interlocutory appeal, arguing that the court erred in allowing the family to amend with a late sanction beyond the 30-day time period of OCGA § 5-4-6. We granted the application, and for the following reasons, reverse the decision of the superior court.

The underlying facts are not in dispute. The Allgood family operated the Allgood mobile home park on property located on Atlanta Road in Cobb County. Although the mobile home park violated the Cobb County zoning ordinance adopted in 1972, the family's use of the land predated the adoption of the ordinance and thus it was deemed a prior existing nonconforming use. In 1996, the Allgood family planned to renovate the park. In preparation thereof, the family removed approximately 90 percent of the existing mobile homes. Cobb County, however, refused to permit the renovations, which included the placement of approximately 140 new mobile homes, concluding that the mobile home park was no longer a legal, grandfathered, non-conforming use. The Allgood family petitioned for a land disturbance permit, which the county denied. The family appealed to the Cobb County board of zoning appeals ("the board"), which affirmed the county's decision on November 26, 1996.

The Allgood family filed a petition for certiorari in the superior court on December 26, 1996 against the board and its individual members. As respondent in certiorari, Cobb County moved to dismiss the petition because it was not filed within 30 days with the appropriate sanction and bond or pauper's affidavit attached. In response to the motion to dismiss, the Allgood family admitted that they did not include a bond or pauper's affidavit, believing that it was not required. They also admitted that the petition lacked the sanction of the appropriate judge and moved to amend the petition. On April 9, 1997, the superior court denied the county's motion to dismiss and permitted the family to amend in accordance with OCGA § 5-4-10. However, the court declined to sanction the family's petition for certiorari nunc pro tunc to December 26, 1996. On May 5, 1997, the superior court sanctioned the petition for certiorari, together with the amendments permitted by the April 9 order.

The issue presented in this appeal is whether the failure to obtain the requisite sanction from the appropriate judge is an amendable defect in certiorari proceedings. We find that it is not amendable if the 30-day time requirement for applying for certiorari under OCGA § 5-4-6(a) has expired.

Initially, we note that the Allgood family properly sought review of the board's denial of the land disturbance permit by petitioning for a writ of certiorari. Section 134-96 of the Cobb County Zoning Ordinance provides that "[a]ny person or persons severally or jointly aggrieved by any decision of the board of zoning appeals may take an appeal to the superior court. The appeal to the superior court shall be by writ of certiorari." See also Jackson v. Spalding County, 265 Ga. 792(1), 462 S.E.2d 361 (1995) (county can specify means of judicial review of zoning matters, including denials of applications for variances and conditional use permits); Dougherty County v. Webb, 256 Ga. 474(1), 350 S.E.2d 457 (1986).

To obtain a writ of certiorari, an aggrieved party, such as the Allgood family, must petition the superior court for the county in which the case was tried, setting forth plainly and distinctly the errors complained of. OCGA § 5-4-3. Furthermore, "[a]ll writs of certiorari shall be applied for within 30 days after the final determination of the case in which the error is alleged to have been committed. Applications made after 30 days are not timely and shall be dismissed by the court." OCGA § 5-4-6(a). The language of OCGA § 5-4-6 is "certain, positive, and unequivocal." Hitt v. City of Atlanta, 103 Ga.App. 717, 718, 120 S.E.2d 339 (1961) (applying substantially similar language of former Code Ann. § 19-209).

Viability of a petition for a writ of certiorari is also contingent upon the party obtaining the sanction of the appropriate judge. "[Upon] the filing of the petition in the office of the clerk of the superior court, with the sanction of the appropriate judge endorsed thereon, together with the bond or affidavit ... it shall be the duty of the clerk to issue a writ of certiorari." (Emphasis supplied.) OCGA § 5-4-3. Absent the sanction, the clerk of the superior court has no authority to either file the application for certiorari or issue the writ. Bellew v. State Hwy. Dept., 127 Ga.App. 301, 193 S.E.2d 202 (1972). Sanctioning is an integral part of the application for certiorari and without it, the certiorari process cannot move forward.

Moreover, a superior court judge is not vested with judicial discretion to grant or deny a sanction of a petition for certiorari when that petition is presented to the judge for sanction more than 30 days after the final determination of the underlying case. Hitt, supra at 718, 120 S.E.2d 339; see also Williams v. Brownlee, 147 Ga.App. 831, 250 S.E.2d 567 (1978) (writ sanctioned and issued more than 30 days from the date of the board's decision was properly dismissed for failure to comply with statutory deadline); Goldstein v. Smith, 141 Ga.App. 493, 494(2), 233 S.E.2d 864 (1977) (amendment to petition containing a true petition for writ of certiorari and a sanction filed after the 30 days had run did not save the petition from dismissal). To hold that the judge had such discretion would amount to rewriting OCGA § 5-4-6. See Hitt, supra. Accordingly, in the instant case, the superior court judge had no discretion to sanction the Allgood family's petition for a writ of certiorari after the 30-day statutory deadline had run.

The Allgood family insists, however, that the absence of a sanction was amendable in accordance with OCGA § 5-4-10, which provides that "[c]ertiorari proceedings shall be amendable at any stage, as to matters of form or substance, as to the petition, bond, answer, and traverse; and a valid bond may by amendment be substituted for a void bond or no bond at all." We disagree.

"In interpreting statutes, courts must look for the intent of the legislature and construe statutes to effectuate that intent. [Cit.] All words, except words of art, shall be given their ordinary significance." City of Roswell v. City of Atlanta, 261 Ga. 657(1), 410 S.E.2d 28 (1991). As the dissent aptly points out, the Act of 1961 was passed to clarify and simplify the procedure in certiorari proceedings, as well as to repeal OCGA § 5-4-10 and to substitute for that section a new section providing for amendments. Ga. Laws 1961, p. 190. In this new OCGA § 5-4-10, the legislature listed the documents that could be amended as to form or substance at any time: the bond, petition, answer and traverse. Had the legislature intended to allow for an amendment of a late sanction, it would have included it in the Code section.

The dissent believes that a party could obtain a late sanction in certiorari proceedings prior to the 1961 amendment of OCGA § 5-4-10. McDonald v. Cousins, 23 Ga. 227 (1857). Furthermore, the dissent asserts, the legislature intended to permit late sanctioning to continue when it enacted the current version of OCGA § 5-4-10 relating to amendable defects. We do not find McDonald dispositive or applicable. McDonald involved the filing of a writ of certiorari from the decision in a forcible entry and detainer case. The Supreme Court had previously held in Taylor v. Gay, 20 Ga. 77 (1856), that the Act of 1850, which was enacted to amend the several laws of Georgia regarding writs of certiorari, did not apply to the facts in Taylor, in which a party was seeking a writ of certiorari from a judgment in a forcible entry and detainer case. We note that the Act of 1850 was the precursor to the current statutory scheme for obtaining writs of certiorari. McDonald concluded that it was the constitutional writ of certiorari and not the statutory writ of certiorari provided by the Act of 1850 that was applicable where a party seeks certiorari from the decision in a forcible entry and detainer case. Thus, it does not appear that McDonald relied on the precursor to OCGA § 5-4-1 et seq. in concluding that a late sanction could be obtained.

Furthermore, as mentioned previously, the language of the legislature in OCGA § 5-4-10 is clear and unambiguous as to what defects are amendable, and sanctioning is not listed. While a petition for certiorari can be amended under OCGA § 5-4-10, the petitioner must timely file for certiorari within 30 days, and this filing must occur only after the sanctioning by the appropriate judge. OCGA §§ 5-4-3; 5-4-6. If the filing is not timely nor is there a sanction, there is nothing viable that can be filed, issued or, accordingly, amended. Bellew, supra at 302, 193 S.E.2d 202. The petition here was void at the time of filing because it was not filed within 30 days...