Emory University v. Levitas
| Citation | 401 S.E.2d 691,260 Ga. 894 |
| Decision Date | 11 March 1991 |
| Docket Number | Nos. S90A1675,S90A1676,s. S90A1675 |
| Parties | , 66 Ed. Law Rep. 475 EMORY UNIVERSITY v. LEVITAS et al. DeKALB COUNTY, Georgia v. LEVITAS et al. |
| Court | Supreme Court of Georgia |
Dick Wilson, Jr., G. Douglas Dillard, Thomas O. Marshall, Peterson, Dillard, Young, Self & Asselin, Atlanta, for appellant (case no. S90A1675).
Frank E. Jenkins, III, Jenkins & Eells, Atlanta, Albert Sidney Johnson, County Atty., Patrick F. Henry, Jr., Decatur, for appellees.
Albert Sidney Johnson, County Atty., Patrick F. Henry, Jr., Decatur, Susan Cole Mullis, Johnson & Montgomery, Atlanta, for DeKalb County et al.
Frank E. Jenkins, III, Kirk R. Fjelstul, Jenkins & Eells, Dick Wilson, Jr., G. Douglas Dillard, Peterson, Dillard, Young, Self & Asselin, Atlanta, for Levitas et al.
These appeals stem from our grant of applications to appeal filed by Emory University (hereafter Emory) and DeKalb County (hereafter DeKalb). Emory and DeKalb contend, inter alia, that the superior court, in reviewing the grant of a variance to Emory by the DeKalb County Board of Commissioners (hereafter BOC), erred in using a substantial-evidence standard of review; that the superior court erred in concluding Emory did not present sufficient evidence to the BOC to warrant the grant of the variance; that the superior court erred in ruling the hearing held on Emory's application for a variance violated procedural due process; and that the superior court erred in holding two of the appellees had standing to challenge the grant of the variance.
We conclude that the superior court erred in using the substantial-evidence standard of review. Moreover, we conclude that Emory presented sufficient evidence to the BOC to warrant the grant of the variance, and that the appellees waived their right to raise the procedural-due-process issue in superior court by failing to raise the issue before the BOC. Finally, we pretermit a decision regarding whether the superior court erred in ruling that two of the appellees had standing, as the other three appellees had standing to challenge the grant of the variance.
Emory applied to the BOC for a variance, to permit Emory to build an eighteen-story hotel and conference center on a six-acre parcel zoned for a maximum building height of five stories. Emory requested the height variance to reduce the area necessary for the proposed complex, which in turn prevented encroachment by the complex into a bordering twenty-two acre, rare first-growth forest, also owned by Emory. Emory conditioned its application on its promise to create a botanical preserve of the first-growth forest.
Emory applied to the BOC instead of to the Board of Appeals (BOA), the DeKalb administrative body that hears most variance requests, because § 11-2323(3) of Article H of the DeKalb County Code provides that the BOC shall determine all height variances. § 11-2323(3) also provides that variances may be granted
where by reason of exceptional narrowness, shallowness, or shape of a specific piece of property, ... or where, by reason of exceptional topographic conditions or other extraordinary or exceptional conditions of a piece of property, the strict application of the development requirements of this chapter would result in practical difficulties to, or undue hardship upon, the owner of the property....
Emory's request for a variance was originally scheduled for a public hearing on July 11, 1989, but the hearing was postponed until August 8 to permit further negotiation between Emory and neighborhood groups. The parties had notice of the August 8 hearing. The appellees, represented by an attorney, were present at the hearing. At the hearing, a spokesman for Emory stated that a conference center of the proposed size was needed to satisfy Emory's academic needs, including Emory's hosting of the International Symposium on Cancer and Nutrition, for which Emory needs to house 500 scientists and clinicians. Moreover, the spokesman stated that the existence of the first-growth forest presented an extraordinary or exceptional development condition, and that the loss of this forest by requiring a lower-rise complex than that proposed would work an unnecessary hardship on Emory and DeKalb County. After the hearing, the BOC granted the variance.
The appellees subsequently filed suit in superior court challenging the grant of the variance. The appellees contended they were denied procedural due process because the BOC had not adopted rules and regulations to govern variance hearings before it, as, the appellees contended, was required by § 11-2324 of the DeKalb County Code. The appellees also contended that Emory had not satisfied the requirements of § 11-2323(3) for obtaining a variance, in that Emory had not shown that "practical difficulties" or "undue hardship" necessitated the variance.
Emory and DeKalb attacked the standing of two of the appellees, Levitas and Fleming, on the ground they held no legal interest in the neighboring property, having transferred all interest in their property to their wives.
Moreover, DeKalb contended that the procedural requirements of § 11-2324 applied only to hearings before the BOA.
Finally, DeKalb contended that the substantive standards of § 11-2323(3) did not apply to requests for height variances. Noting that Article H, § 11-2323(3) requires that requests for height variances be made to the BOC and not the BOA, and that Article H of the DeKalb code is entitled "Board of Appeals," DeKalb argued that the provisions of § 11-2323(3) applied only to decisions for variances made to the BOA, and that the BOC merely exercised its legislative discretion in determining whether to grant height variances. Emory and DeKalb also contended that Emory had shown the practical difficulty and undue hardship necessary to obtain the variance.
The trial court ruled that Levitas and Fleming had standing; that the procedural and substantive provisions of Article H of the DeKalb County Code apply to requests for height variances made to the BOC; that the hearing on Emory's request violated procedural due process because DeKalb had failed to adopt rules governing hearings on variance requests; that the superior court was limited to a review of the evidence presented to the BOC; that the court should apply a substantial-evidence standard of review in determining whether the evidence presented to the BOC supported its decision; and that there was not substantial evidence to support the BOC's decision.
1. Emory and DeKalb first argue that the trial court erred in applying the substantial-evidence standard of review in determining whether the BOC abused its discretion in granting the variance. 1 Emory and DeKalb contend that the any-evidence standard of review should be applied. The appellees respond that the substantial-evidence standard of review is appropriate and that the standard is somewhat greater than the any-evidence standard. The appellees, as did the trial court, rely on OCGA § 50-13-19(h)(5) and 3 Ziegler, Rathkopf's Law of Zoning and Planning, § 42.07[3, 5] (4th Ed.).
This Court has never set forth the standard of review to be applied by a superior court in reviewing whether the evidence presented to a local administrative agency or local governing body 2 supports the grant or denial of a variance. We now hold that the any-evidence standard is the appropriate standard of review.
As argued by the appellees, 3 Ziegler, supra, § 42.07, states that the appropriate standard of review is whether the decision of the local agency or governing body is supported by substantial evidence. However, we have previously ruled that in Georgia the substantial-evidence standard is effectively the same as the any-evidence standard. In Dept. of Human Resources v. Montgomery, 248 Ga. 465, 466(1), 284 S.E.2d 263 (1981), we considered whether a superior court erred in its application of a statute that permitted the superior court to overturn a decision of a special master if it was " '[n]ot supported by substantial evidence, which shall mean that the record does not contain such relevant evidence as a reasonable mind might accept as adequate to support said [decision].' " Id. at 465, 284 S.E.2d 263. The superior court reviewed the special master's decision under the any-evidence standard, and we concluded that this was the proper scope of review. Id. at 466(1), 284 S.E.2d 263.
The language of [the statute in question] is virtually identical to language from federal cases interpreting the Federal Administrative Procedure Act. In Consolo v. Federal Maritime Comm., 383 U.S. 607 (86 SC 1018, 16 LE2d 131) (1966) the United States Supreme Court, after noting that the Administrative Procedure Act gives a reviewing court the authority to set aside agency findings found to be "unsupported by substantial evidence," defined substantial evidence as " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion ...' " Id. at 620 . The court went on to say that " '(I)t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.' " Ibid. In Georgia, the standard used to review the grant or denial of a directed verdict is the "any evidence" test. Speir v. Williams, 146 Ga.App. 880 (247 SE2d 549) (1978).
Regarding § 50-13-19(h)(5), the appellees contend that it sets forth a substantial-evidence standard. The appellees further contend that, as a superior court's review of a state administrative agency's decision under § 50-13-19 is similar to a superior court's review of the grant of a variance, in that both reviews are limited to the record made below, § 50-13-19(h)(5) is persuasive authority for applying a substantial-evidence standard in the instant case.
Assuming that § 50-13-19(h)(5) sets forth a substantial-evidence standard and not some form of the clearly-erroneous standard, we ...
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