Ladzinske v. Allen, S05A1866.

• Decision Date: 17 January 2006
• Docket Number: No. S05A1866.,S05A1866.
• Citation: 280 Ga. 264,626 S.E.2d 83
• Parties: LADZINSKE v. ALLEN et al.
• Court: Georgia Supreme Court

280 Ga. 264

626 S.E.2d 83

LADZINSKE v. ALLEN et al.

No. S05A1866.

Supreme Court of Georgia.

January 17, 2006.

Reconsideration Denied February 27, 2006.

J.M. Raffauf, Decatur, for Appellant.

Scott William Peters, Nathan Michael Wheat, David H. Flint, Schreeder, Wheeler & Flint, L.L.P., Atlanta, Eugene Charles Reed, Jr., William J. Linkous, III, Viviane H. Ernstes, DeKalb County Law Department, Decatur, for Appellee.

CARLEY, Justice.

Academy of America, Inc. leases to Academy of Lithonia, Inc. the facilities necessary for it to operate as a charter school. Beginning in 2001, the DeKalb County Department of Public Works considered the charter school to be exempt from the local zoning ordinance, and granted all necessary building permits and certificates of occupancy. In November 2003, the County issued a permit for the construction of a new building. Although the permit was posted on the property in a conspicuous place, Richard Ladzinske, who lives across the road from the charter school, raised no objection until after construction had actually commenced. Based on his inquiries in April and May, 2004, however, the County placed a hold on the construction and conducted an investigation. In August 2004, the Development Director and the Zoning Administrator affirmed that the charter school is exempt from the zoning ordinance, that the new building constitutes a valid accessory use to the charter school's operations, and that the building permit was properly issued. The construction resumed, and, in November 2004, Ladzinske brought suit for mandamus, injunctive and declaratory relief, and damages against Academy of America and other entities associated with it (School Appellees) and against the County and its CEO, Development Director, and Zoning Administrator (County Appellees).

After an evidentiary hearing, the trial court concluded that the charter school was immune from local zoning ordinances, that the new building comes within the zoning exemption, and that Ladzinske failed to appeal from the issuance of the building permit to the County Zoning Board of Appeals (ZBA). The trial court dismissed his claims for mandamus and declaratory relief, on the ground of his failure to exhaust administrative remedies, and denied an interlocutory injunction due to laches and the extreme unlikelihood of success on the merits. The trial court also held that these claims must fail because Academy of America had spent over $6.4 million on the project and had a vested right in the building permit. Ladzinske filed a notice of direct appeal from this order.

This case comes within our appellate jurisdiction "because cases involving the grant or denial of mandamus are within the exclusive jurisdiction of this Court without regard to the underlying subject matter or the legal issues raised. [Cit.]" Mid-Georgia Environmental Mgmt. Group v. Meriwether County, 277 Ga. 670, 671(1), 594 S.E.2d 344 (2004). See also Lamar County v. E.T. Carlyle Co., 277 Ga. 690, 691(1), 594 S.E.2d 335 (2004). "The underlying subject matter, however, is relevant to determining whether a party is entitled to a direct appeal or must file an application to appeal from a mandamus action." Mid-Georgia Environmental Mgmt. Group v. Meriwether County, supra. Appellees have moved to dismiss this appeal because of Ladzinske's failure to follow the discretionary appeal procedures as required by OCGA § 5-6-35(a)(1). That statutory provision requires that "all appeals from `decisions of the superior courts reviewing decisions of ... state and local administrative agencies' must be brought to this Court by way of the discretionary appeal procedures set forth in OCGA § 5-6-35. [Cits.]" Ferguson v. Composite State Bd. of Medical Examiners, 275 Ga. 255, 256(1), 564 S.E.2d 715 (2002).

In interpreting and applying OCGA § 5-6-35(a)(1), this Court first looked to the underlying subject matter in zoning cases, beginning with Trend Development Corp. v. Douglas County, 259 Ga. 425(1), 383 S.E.2d 123 (1989). O S Advertising Co. of Ga. v. Rubin, 267 Ga. 723, 724(1), 482 S.E.2d 295 (1997). We subsequently ruled in Rebich v. Miles, 264 Ga. 467, 448 S.E.2d 192 (1994) that, if the underlying subject matter of the appeal, even in non-zoning cases, concerns the review of an administrative decision, then the discretionary appeal procedures must be followed. Ferguson v. Composite State Bd. of Medical Examiners, supra. Thus, "[w]hen a case involves mandamus, but also the review of an administrative agency ruling, a party must file an application to appeal. [Cit.]" Mid-Georgia Environmental Mgmt. Group v. Meriwether County, supra. This requirement also applies where "an administrative decision is attacked by way of a declaratory judgment action. [Cits.] And it applies to appeals of local governmental department decisions even if no administrative appeal was taken. [Cit.]" Dunlap v. City of Atlanta, 272 Ga. 523, 524, 531 S.E.2d 702 (2000).

The clear intent of OCGA § 5-6-35 "`"was to give the appellate courts ... the discretion not to entertain an appeal where the superior court had reviewed a decision of certain specified lower tribunals (i.e., two tribunals had already adjudicated the case)."' [Cit.]" Ferguson v. Composite State Bd. of Medical Examiners, supra. This rationale for requiring a discretionary application does not apply where the person who seeks to appeal was not a party to the administrative proceedings, unless he had standing to participate therein, but purposely opted out at the administrative level. Ferguson v. Composite State Bd. of Medical Examiners, supra at 258(2), fn. 19, 564 S.E.2d 715; Best Tobacco v. Dept. of Revenue, 269 Ga.App. 484, 485-486, 604 S.E.2d 578 (2004).

Ladzinske did not actually become a party to any administrative proceeding, and the DeKalb County Code does not contain any provision which would have enabled him to participate at the administrative level before and during the...