Hall Cnty. v. Cook Cmtys.

• Court: Georgia Court of Appeals
• Writing for the Court: Phipps, Senior Appellate Judge.
• Citation: Hall Cnty. v. Cook Cmtys., 368 Ga.App. 536, 890 S.E.2d 462 (Ga. App. 2023)
• Docket Number: A23A0055
• Decision Date: 29 June 2023
• Parties: HALL COUNTY v. COOK COMMUNITIES.

368 Ga.App. 536

890 S.E.2d 462

HALL COUNTY v. COOK COMMUNITIES.

A23A0055

Court of Appeals of Georgia.

June 29, 2023

Dana Kristin Maine, Atlanta, Marrissa Ann Cioffi Dunn, for Appellant.

Jane A. Range, Gainesville, for Appellee.

Phipps, Senior Appellate Judge.

This is one of many recent appeals concerning the proper method to challenge a local authority's rezoning decision in the superior court. In the present case, defendant Hall County appeals the superior court's order denying its motion to dismiss a developer's lawsuit challenging a rezoning decision. The County argues that the superior court erred by concluding that the rezoning decision was legislative in nature and did not require a writ of certiorari to proceed. For the reasons that follow, we affirm the court's decision.

"In ruling on a motion to dismiss, the trial court must accept as true all well-pleaded material allegations in the complaint and must resolve any doubts in favor of the plaintiff. Importantly, when a question of law is at issue, as here, we owe no deference to the trial court's ruling and apply the plain legal error standard of review." Riverdale Land Group v. Clayton County , 354 Ga. App. 1, 2, 840 S.E.2d 132 (2020) (citations and punctuation omitted).

The relevant facts are undisputed. Plaintiff Cook Communities bought approximately 32.6 acres of land in Hall County, upon which Cook wishes to build approximately 200 attached townhomes. When purchased, the land was zoned AR-III (agricultural residential), and Cook sought to have the zoning map changed and the property rezoned PRD (planned residential development). Cook argued that denying its request would be "an unconstitutional restriction on the use of the property" and "abolish or damage [its] property rights" without adequate, fair, and just compensation in violation of the federal and state constitutions. In January 2022, the local planning commission voted to rezone the property, but imposed several conditions. Thereafter, the Hall County Board of Commissioners approved the rezoning with, according to Cook, "several new and amended conditions" that constituted "exactions requiring [Cook] to donate land for improvements off of the property or not directly addressing traffic issues caused by the proposed redevelopment of the property[,]" such as installing turn lanes and imposing a unit per acre density far less than other surrounding developments.

Cook filed a lawsuit in the superior court against the County and its Commissioners, in their individual capacities, seeking declaratory, injunctive, and mandamus relief. Specifically, Cook alleged that the rezoning conditions imposed an unconstitutional taking of its property, and it asked the court to declare the zoning ordinance — as applied to it — void, declare the property free of zoning restrictions, and award damages for the unconstitutional taking of its property. The County answered and moved to dismiss Cook's complaint, arguing, inter alia, that the rezoning decision was judicial or quasi-judicial in nature and that Cook therefore was required to file an application for a writ of certiorari rather than a direct action in superior court to challenge that decision. Cook countered that it was not required to file a certiorari petition because the decision on its request for rezoning was a legislative one. The superior court ultimately concluded that the local zoning authority's decision on Cook's request to rezone the property was legislative, rather than quasi-judicial, and the court denied the County's motion to dismiss Cook's direct action on that ground. ¹ The County filed an application for interlocutory review, which we granted, Hall County v. Cook Communities , Case No. A22I0206 (July 1, 2022), and this appeal timely followed.

In its sole enumeration of error, the County asserts that the superior court erred in finding that Cook did not have to appeal the County's rezoning decision via a petition for a writ of certiorari to the superior court. According to the County, the decision to grant Cook's rezoning application with conditions ² was a quasi-judicial decision subject to certiorari review. We disagree.

The determination of whether a local zoning authority acts in a legislative or quasi-judicial capacity is crucial to establishing the proper procedure for appeal and the appropriate standard of review. If the rezoning decision is classified as legislative, a party may file a direct action challenging the constitutionality of that decision in the superior court, which reviews the decision de novo and is not limited to examination of the evidence presented to the local zoning authority. Stendahl v. Cobb County , 284 Ga. 525, 526-527 (1), 668 S.E.2d 723 (2008). If, on the other hand, the rezoning decision is classified as quasi-judicial, a party may challenge it only by filing a petition for a writ of certiorari to the superior court, which must accept the local zoning authority's factual findings if they are supported by any evidence and is bound by the evidence presented to the local zoning authority. Forsyth County v. Mommies Properties , 359 Ga. App. 175, 184 (2), 855 S.E.2d 126 (2021).

In resolving whether the local zoning authority acted in a legislative or quasi-judicial capacity, the Supreme Court of Georgia has distinguished two types of zoning decisions. See Moon v. Cobb County , 256 Ga. 539, 539, 350 S.E.2d 461 (1986) ; accord Schroeder Holdings v. Gwinnett County , 366 Ga. App. 353, 355-356 (1), 883 S.E.2d 37 (2023) ; Riverdale Land Group , 354 Ga. App. at 10 (2), 840 S.E.2d 132. The first type involves "a constitutional attack ... against a zoning ordinance." Moon , 256 Ga. at 539, 350 S.E.2d 461. In such cases, the zoning authority "does not adjudicate the constitutionality of the ordinance" but "acts in its legislative capacity should it elect to amend the ordinance." Id. See also Schroeder , 366 Ga. App. at 355 (1), 883 S.E.2d 37 ; Riverdale Land Group , 354 Ga. App. at 10 (2), 840 S.E.2d 132. The second type of zoning decision involves a situation "where a special permit is sought under terms set out in the ordinance." Moon , 256 Ga. at 539, 350 S.E.2d 461 (citation and punctuation omitted). In such cases, the zoning authority "acts in a quasi-judicial capacity to determine the facts and apply the law." Id. (citation and punctuation omitted). See also Schroeder , 366 Ga. App. at 355 (1), 883 S.E.2d 37 ; Riverdale Land Group , 354 Ga. App. at 10 (2), 840 S.E.2d 132.

The present appeal involves a constitutional attack against conditions that the County attached to the approval of Cook's application to rezone, which essentially amounts to a denial of the request. This Court recently has addressed the proper method to challenge the constitutionality of a local authority's zoning decision in the superior court. In Schroeder , 366 Ga. App. at 353, 883 S.E.2d 37, one of the appellants requested that property be rezoned. The local zoning authority denied the application, and the appellants filed both a writ of certiorari and a direct action in superior court arguing that the zoning ordinance was unconstitutional and raising claims for regulatory taking, inverse condemnation, and substantive due process violations. Id. at 353-354, 359 (2) (b), 883 S.E.2d 37. The county moved for summary judgment on a number of grounds, arguing, among other things, that the zoning decision was quasi-judicial in nature and that the appellants’ only remedy was review under a writ of certiorari, the requirements of which they had failed to comply with. Id. at 354, 883 S.E.2d 37. The superior court granted the county's motion, and this Court reversed that decision, concluding that the superior court erred in holding that the denial of the rezoning request was a quasi-judicial decision that could be challenged only by way of a petition for a writ of certiorari. Id. at 354, 356 (1), 883 S.E.2d 37. ³

Likewise, in Pickens County v. Talking Rock Bluffs , 367 Ga. App. 46, 46-47, 885 S.E.2d 24 (2023), Talking Rock requested that property be rezoned, asserting "that the current zoning scheme [was] unconstitutional as applied to the particular property at issue." The local zoning authority denied the request, and Talking Rock filed both a petition for a writ of certiorari and a direct action seeking a declaration that the zoning decision was unconstitutional and requesting equitable and injunctive relief. Id. at 47, 885 S.E.2d 24. The county filed a motion to dismiss the direct action, arguing that the only means to challenge the zoning decision was by filing a certiorari petition. Id. The superior court denied the motion, and this Court affirmed, concluding that Talking Rock "was not limited to review of the zoning authority's decision by writ of certiorari." Id. at 47, 49-50, 885 S.E.2d 24.

In both decisions, this Court noted that for decades it has been well settled in Georgia that "when considering a rezoning request challenging the constitutionality of a zoning ordinance as applied to a particular piece of property," "a zoning authority acts in a legislative capacity ... and, accordingly, the proper procedure to challenge the zoning authority's grant or denial of the rezoning request is to file suit in the superior court, which may then conduct a de novo review." Talking Rock , 367 Ga. App. at 47, 885 S.E.2d 24 ; accord Schroeder , 366 Ga. App. at 355-356 (1), 883 S.E.2d 37. However, in both cases we also recognized that the Supreme Court's decision in Diversified Holdings v. City of Suwanee , 302 Ga. 597, 807 S.E.2d 876 (2017), "arguably departed from this longstanding precedent." Talking Rock , 367 Ga. App. at 48, 885 S.E.2d 24 ; accord Schroeder , 366 Ga. App. at 356 (1), 883 S.E.2d 37 ("We recognize that there is a strong argument that, after Diversified , rezoning decisions must be treated as quasi-judicial acts which may be reviewed only by writ of certiorari.").

In Diversified , the property owner sought rezoning...