Olley Valley Estates, Inc. v. Fussell

• Decision Date: 04 September 1974
• Docket Number: No. 28916,28916
• Citation: 232 Ga. 779,208 S.E.2d 801
• Parties: OLLEY VALLEY ESTATES, INC., et al. v. Donald FUSSELL et al.
• Court: Georgia Supreme Court

Page 801

208 S.E.2d 801

232 Ga. 779

OLLEY VALLEY ESTATES, INC., et al. v. Donald FUSSELL et al.

No. 28916.

Supreme Court of Georgia.

Sept. 4, 1974.

Rehearing Denied Sept. 24, 1974.

Edwards, Awtrey & Parker, A. Sidney Parker, Marietta, Green, Force & Alderman, William O. Green, Jr., Austell, for appellants.

Neely, Freeman & Hawkins, Paul M. Hawkins, William G. Tabb, III, Atlanta, John L. Coney, Douglasville, for appellees.

Syllabus Opinion by the Court

HALL, Justice.

This is an appeal by the developer from a decision of the Superior Court of Douglas County which ruled, following an interlocutory hearing, that the vote of the Commissioners of Roads and Revenue of Douglas County to re-zone certain property was null and void, and that all parties were enjoined from developing the property under the rezoned classification.

The background of the litigation is, briefly, that Olley Valley Estates, Inc. (hereinafter 'Olley Valley') had petitioned to re-zone its property to allow the development of a mobile home subdivision and that the commissioners by a two-to-one vote granted the requested re-zoning though opposition was advanced at the hearing by appellees. Following the vote for re-zoning, appellees brought the superior court action against Olley Valley, the county, and the commissioners individually, seeking the injunction on grounds, among others, that the vote of Commissioner Joseph T. Smith, whose affirmative vote was determinative in allowing the re-zoning, had been influenced by personal considerations and that Commissioner Smith should be held disqualified.

It is critical to our action on this appeal that the superior court terminated the hearing and issued its decision after hearing extensive evidence on the alleged disqualification from appellees, but without hearing evidence from Olley Valley and the other appellants. Appellees acquiesce in the contention that due process therefore requires a re-hearing to allow appellants to make their showing, and we will remand for that purpose. However, we are urged by appellants not to remand without determining certain of the contested points of law which will arise again on a new hearing. Accordingly, we will in this opinion decide three questions of law central to this dispute, namely, what is the standard under which a zoning commissioner may be determined to be disqualified from voting on a particular matter (Olley Valley enumerations 1(g), 4, 5, 6 and 7; County enumerations XVI and XVII); should the injunction suit be dismissed against the county commissioners in their individual capacities (3, II, III and IV); and is the evidence at the injunction hearing limited to that admitted at the initial hearing on the re-zoning request (10).

1. Turning to the first question, the parties hotly contest here whether a board of commissioners hearing a re-zoning application performs a function correctly described as quasi-judicial or quasi-legislative. The argument runs that, if the function is quasi-judicial a commissioner may be disqualified for a conflict of interest; but if the function is quasi-legislative the decision of the commissioners will stand unless it is clearly arbitrary and unreasonable, and the courts should not inquire into the motivation of the commissioners. Appellees further argue that if zoning, with its comprehensive community planning, is properly regarded as a legislative function, nonetheless re-zoning must be regarded as quasi-judicial because it requires an adjudicative determination. The superior court ruled with appellees. We find that the function in question, if it must be labeled, is quasi-legislative; but that like most labels this one does not answer the real question which is, in the case, what disqualifies the commissioner in a zoning matter?

A review of all the Georgia cases cited by the parties on this point makes clear that the Georgia view is that commissioners in voting on either a zoning or rezoning proposal are functioning in a legislative capacity. E.g., Cota v. Northside Hospital Assn., 221 Ga. 110, 112, 143 S.E.2d 167; Vulcan Materials Co. v. Griffith, 215 Ga. 811, 816, 114 S.E.2d 29; Humthlett v. Reeves, 212 Ga. 8, 90 S.E.2d 14; Toomey v. Norwood Realty Co., 211 Ga. 814, 817, 89 S.E.2d 265; Morgan v. Thomas, 207 Ga. 660, 664, 63 S.E.2d 659; Barr v. City Council of Augusta, 206 Ga. 756(4), 58 S.E.2d 825; Story v. City of Macon, 205 Ga. 590, 594, 54 S.E.2d 396. This is also, incidentally, the view of the Fifth Circuit which recently, in South Gwinnett Venture v Pruitt, 491 F.2d 5 (5th Cir. 1974), wrote with two dissents and one special concurrence that zoning was quasi-legislative and that there was no difference between the functions of zoning and re-zoning. The en banc opinion reversed the decision of the three-judge panel of the Fifth Circuit, which had found zoning legislative and re-zoning judicial. 482 F.2d 389 (5th Cir. 1973). The Fifth Circuit also wrote that it would not apply its own earlier case of Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964) to zoning cases. 491 F.2d p. 7, n. 1. Hornsby had stated that 'A governmental agency entrusted with the licensing power . . . functions as a legislature when it prescribes these standards, but the same agency acts as a judicial body when it makes a determination that a specific applicant has or has not satisfied them.' 326 F.2d p. 608. Building on the suggestion in Hornsby, our Court of Appeals in Rogers v. Mayor, &c. of Atlanta, 110 Ga.App. 114, 137 S.E.2d 668 wrote that the grant or withholding of a special use permit under a zoning ordinance was a judicial function. The Fifth Circuit has now disclaimed the reading that Rogers gave Hornsby, undercutting Rogers to that extent. However, Rogers may have continued viability because of the same fact that makes it irrelevant to this appeal: the special use permit considered in Rogers is basically different from an act of re-zoning, and many respectable authorities suggest that the former is properly regarded as a quasijudicial act even though the latter is not. ¹

In any event, labeling a zoning or re-zoning function 'quasi-legislative' will not terminate the inquiry into a commissioner's disqualification if he has a financial interest in the subject on which he is voting. This was the clear implication of the analogous cases of Story v. City of Macon, 205 Ga. 590, 54 S.E.2d 396 and Crawford v. Brewster, 225 Ga. 404, 169 S.E.2d 317 both of which concerned city councilmen subject to the conflict of interest provisions of Code § 69-204. The reasoning which underlies this conclusion that self-interested voting is improper despite its legislative character is set forth in 8 McQuillin, Municipal Corporations § 25.57 (1965): 'Furthermore, zoning ordinances and regulations should be designed to promote the general welfare and other objectives specified in the statutes, rather than to benefit individual property owners or to relieve them from the harshness of the general regulation as applied to their property. Thus, a zoning measure may be invalid by reason of the fact that a member of the council which enacted the zoning ordinance or amendment, or a member of the zoning commission which recommended its enactment had an interest, direct or indirect, in the affected property, although in some cases the interest of a municipal legislator has not been regarded as material on the issue of the validity of the zoning measure. In any case, a remote or speculative interest will not warrant abrogation of the municipal action in which the officer participated.'

The usual test has been stated as follows: 'Fraud or bad faith with respect either to context or manner of arriving at a decision in an administrative zoning matter, is sufficient ground for judicial reversal thereof. But the motives of a zoning board are not, except with respect to fraud or bad faith, open to inquiry on judicial review.' 8A McQuillin, Municipal Corporations § 25.313 (1965). Several analogous and helpful cases are discussed in the treatise, Rathkopf. The Law of Zoning and Planning, Ch. 22, § 3 (1972 Supp. for use in 1974) which concludes that 'It would seem that the general rule against inquiring into the motives of the legislative body gives way as a matter of public policy where there is an allegation or appearance of corruption or fraud.' In short, the unimportance to this point of the distinction between quasi-judicial and quasi-legislative labels has been recognized (see Note, Disqualification of Councilman for Personal Interest, 57 Mich.L.Rev. 423, 425 (1959)), and it has been suggested that 'Although the courts have generally refrained from stating that the rule of nonreview of motives in legislative action should be abandoned, such a result has in effect been reached by various techniques which include invalidating legislative action where 'fraud' in involved, or classifying an action as quasi-judicial when in other circumstances it has been treated as legislative. Conceding that the...