Dot v. Peach Hill Properties, S06A0727.

• Decision Date: 12 June 2006
• Docket Number: No. S06A0727.,S06A0727.
• Citation: 631 S.E.2d 660,280 Ga. 624
• Parties: DEPARTMENT OF TRANSPORTATION et al. v. PEACH HILL PROPERTIES, INC.
• Court: Georgia Supreme Court

280 Ga. 624

631 S.E.2d 660

DEPARTMENT OF TRANSPORTATION et al. v. PEACH HILL PROPERTIES, INC.

No. S06A0727.

Supreme Court of Georgia.

June 12, 2006.

Thurbert E. Baker, Atty. Gen., Eric Alexander Kane, Asst. Atty. Gen., for appellant.

Wilson, Brock & Irby, Richard W. Wilson, Jr., Atlanta, Dupree, King & Kimbrough, Hylton B. Dupree, Jr., Marietta, for appellee.

CARLEY, Justice.

In Georgia Dept. of Transp. v. Peach Hill Properties, 278 Ga. 198, 599 S.E.2d 167 (2004), we held that the trial court abused its discretion by ordering the Department of Transportation (DOT) to submit to the Federal Aviation Administration the exemption request of Peach Hill Properties, Inc. for a landfill to be located within six miles of a regional airport. However, we also concluded that the trial court could mandate "(1) the development of reasonable guidelines enabling Peach Hill to seek a landfill exemption and (2) a prompt and fair consideration of Peach Hill's exemption request." Georgia Dept. of Transp. v. Peach Hill Properties, supra at 201(2), 599 S.E.2d 167.

On remand, the trial court entered an order consistent with our opinion and, in response, DOT adopted Rule 672-9-.05. However, Peach Hill did not submit an exemption application under the provisions of that rule, as we had indicated would be appropriate. Instead, Peach Hill filed an amended petition for declaratory judgment and mandamus under the previous case number. Acting pursuant to that amended petition, the trial court struck certain requirements and criteria in Rule 672-9-.05 as vague, duplicative of existing rules, unrelated to air safety, impossible to comply with, or providing DOT with unfettered discretion. The trial court further ordered DOT to adopt a rule which complies with that court's orders, and directed the entry of a final judgment. DOT appeals from that judgment.

1. DOT contends that the trial court lacked subject matter jurisdiction to grant declaratory judgment concerning the validity of Rule 672-9-.05. This jurisdictional issue "is properly before us notwithstanding [DOT]'s failure to raise it below. [Cit.]" Department of Medical Assistance of Ga. v. Beverly Enterprises, 195 Ga.App. 753, 754(1), 395 S.E.2d 15 (1990), rev'd on other grounds, 261 Ga. 59, 401 S.E.2d 499 (1991).

OCGA § 50-13-10 governs declaratory judgment regarding the validity of administrative rules. Subsection (a) of that statute provides the following:

The validity of any rule . . . may be determined in an action for declaratory judgment when it is alleged that the rule . . . or its threatened application interferes with or impairs the legal rights of the petitioner. A declaratory judgment may be rendered whether or not the petitioner has first requested the agency to pass upon the validity of the rule ... in question.

This subsection clearly dispenses with any requirement for the petitioner to exhaust his administrative remedies. Caldwell v. Liberty Mut. Ins. Co., 248 Ga. 282, 285(1), 282 S.E.2d 885 (1981); Pope v. Cokinos, 231 Ga. 79, 81(3), 200 S.E.2d 275 (1973). However, other principles which ordinarily apply to declaratory judgment actions are not eliminated by the statute. "Actions for declaratory judgment provided for in this Code section shall be in accordance with Chapter 4 of Title 9, relating to declaratory judgments." OCGA § 50-13-10(c).

Thus, the requirement remains that there must be a justiciable controversy between the parties. Put another way, § 50-13-10 does not allow advisory opinions; it simply permits the State to be sued in an otherwise proper declaratory judgment action involving the validity of an agency rule.

Page 662

Burton v. Composite State Bd. of Medical Examiners, 245 Ga.App. 587, 589, 538 S.E.2d 501 (2000). See also BankWest v. Oxendine, 266 Ga.App. 771, 777(3), 598 S.E.2d 343 (2004); Board of Natural Resources v. Monroe County, 252 Ga.App. 555, 557(1), 556 S.E.2d 834 (2001).

The viability of declaratory judgment relief in this case is not determined by the availability of that form of action in the previous proceedings, since they occurred prior to the existence of Rule 672-9-.05 and involved a justiciable controversy over a clear and definite DOT policy decision not to consider any exemption applications. See Department of Medical Assistance of Ga. v. Beverly Enterprises, supra at 754(2), 395 S.E.2d 15. Likewise, Peach Hill's reasons for failing to exhaust its administrative remedies, including the alleged impossibility of completing, or the futility of filing, an ...