Powell v. City of Snellville
| Decision Date | 28 May 2002 |
| Docket Number | No. S02A0059, No. S02A0060. |
| Citation | 563 S.E.2d 860,275 Ga. 207 |
| Parties | POWELL v. CITY OF SNELLVILLE et al. (Two Cases). |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Webb, Tanner & Powell, Anthony O.L. Powell, Robert J. Wilson, Lawrenceville, for appellant.
Jenkins & Nelson, Frank E. Jenkins III, Peter R. Olson, Cartersville, for appellees.
Appellant Mary Kathryn Powell, the owner of a parcel of real property in the City of Snellville, appeals from the trial court's grant of summary judgment to the defendants in the lawsuits Ms. Powell filed against them over the zoning classifications placed on her property. For the reasons that follow, we dismiss Ms. Powell's direct appeals, treat her appellate pleadings as an application for discretionary review, and deny further review of the trial court's actions.
In 1993, Ms. Powell owned an 11-acre parcel of land in Gwinnett County which she planned to sell for development as a parking lot for a shopping center to be built on adjacent property. At Ms. Powell's request, the City of Snellville annexed Ms. Powell's property in July 1993 and, over Ms. Powell's objection, zoned the property as "Office and Institutional" with a condition prohibiting the property from being developed as a parking lot. In December 1993, Powell filed suit in superior court against the city, its mayor, council members, planning director, and planning commission, contesting the zoning classification imposed on her property and the city's refusal to re-zone the property to what Ms. Powell deemed a constitutional classification. She also sought damages under 42 USC § 1983 for alleged intentional and malicious interference with her contractual and property rights, damages under OCGA § 36-33-4, and a declaratory judgment that the Atlanta Regional Commission's interpretation of a rule promulgated by the Department of Natural Resources was unconstitutional. While Powell's lawsuit was pending in superior court, the city re-zoned the property from "Office and Institutional" to "Neighborhood Business," again with the prohibition against development as a parking lot for the planned adjacent mall. In July 1994, Ms. Powell filed a second lawsuit in superior court in which she contended the "Neighborhood Business" classification was unconstitutional, sought damages pursuant to 42 U.S.C. § 1983, and alleged that OCGA § 36-67A-5 had been violated by city council members who voted on the second zoning classification while they were defendants in her first appeal and thereby potentially exposed to personal liability. The superior court granted summary judgment to appellees in both cases and, relying on Village Centers v. DeKalb County, 248 Ga. 177, 281 S.E.2d 522 (1981), ruled Ms. Powell was precluded from challenging the constitutionality of the zoning classification(s) imposed on her property since she had not applied to the city for re-zoning of her property. This Court granted Ms. Powell's application for discretionary appeal and reversed the superior court's judgments, holding that Ms. Powell was not required to perform a futile act in order to obtain judicial review of her claim that her property was unconstitutionally zoned. Powell v. City of Snellville, 266 Ga. 315, 467 S.E.2d 540 (1996). In July 2000, with Ms. Powell's consent, the city re-zoned Ms. Powell's property to "Planned Residential Community." The superior court, in several orders issued over a four-year period, granted summary judgment to appellees on all counts in both cases, with the final order being issued June 6, 2001. Case No. S02A0059 is Ms. Powell's appeal from the final judgment entered on the December 1993 complaint, and Case No. S02A0060 is her appeal from the final judgment entered on the July 1994 complaint.
1. The city maintains appellant is not entitled to directly appeal the trial court's judgments because the trial court was engaged in reviewing zoning decisions made by the local zoning tribunal and appeals therefrom must come by way of application. OCGA § 5-6-35(a)(1); Trend Dev. Corp. v. Douglas County, 259 Ga. 425(1), 383 S.E.2d 123 (1989). See also Consolidated Govt. of Columbus v. Barwick, 274 Ga. 176(1), 549 S.E.2d 73 (2001); King v. City of Bainbridge, 272 Ga. 427(1), 531 S.E.2d 350 (2000). "`It is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.'" Rowland v. State, 264 Ga. 872(1), 452 S.E.2d 756 (1995). Appellant filed in this Court applications to appeal the trial court's judgments, as well as direct appeals from the trial court's final judgments. Citing King v. City of Bainbridge, supra, and Sprayberry v. Dougherty County, 273 Ga. 503, 543 S.E.2d 29 (2001), this Court dismissed appellant's applications in an unpublished order in which we stated appellant had the right to directly appeal the orders granting summary judgment to the city because the orders were not reviewing the decisions of an administrative agency. Having now received and reviewed the entire records of both appeals in conjunction with the direct appeals, we now conclude that the complaints appellant filed in the superior court...
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