Quarters Decatur, LLC v. City of Decatur

• Decision Date: 23 October 2018
• Docket Number: A18A1063
• Citation: 347 Ga.App. 723,820 S.E.2d 741
• Parties: The QUARTERS DECATUR, LLC v. The CITY OF DECATUR et al.
• Court: Georgia Court of Appeals

347 Ga.App. 723

820 S.E.2d 741

The QUARTERS DECATUR, LLC

v.The CITY OF DECATUR et al.

A18A1063

Court of Appeals of Georgia.

October 23, 2018

Edward H. Wasmuth Jr., Dennis John Webb Jr., Kathryn M. Zickert, Atlanta, for Appellant.

Stephen Gervaise Quinn, Bryan Andrew Downs, Decatur, for Appellee.

McFadden, Presiding Judge.

Real estate developer The Quarters Decatur, LLC petitioned in superior court for a writ of mandamus to compel the City of Decatur and its planning director, Angela Threadgill, to take action on The Quarters’s application for approval of a preliminary subdivision plat for a townhouse development. The superior court dismissed the petition for failure to state a claim pursuant to OCGA § 9-11-12 (b) (6) and The Quarters appeals. Because the petition’s allegations, viewed in the light most favorable to The Quarters, do not disclose with certainty that no set of facts consistent with the allegations could be proved that would entitle The Quarters to mandamus relief, we reverse.

1. Procedural history.

The ruling on appeal is the superior court’s grant of motions to dismiss The Quarters’s mandamus petition for failure to state a claim upon which relief may be granted. See OCGA § 9-11-12 (b) (6). Such a motion

should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of the relief sought by the claimant, the complaint is sufficient and a motion to dismiss should be denied. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

Anderson v. Flake , 267 Ga. 498, 501 (2), 480 S.E.2d 10 (1997) (citations omitted).

The Quarters sought mandamus relief, which is "an extraordinary remedy to compel a public officer to perform a required duty when there is no other adequate legal remedy." R. A. F. v. Robinson , 286 Ga. 644, 646 (1), 690 S.E.2d 372 (2010) (citation omitted); see also OCGA § 9-6-20. To obtain such relief, a party must establish "that (1) no other adequate legal remedy is available to effectuate the relief sought; and (2) the applicant has a clear legal right to such relief." SJN Properties v. Fulton County Bd. of Assessors , 296 Ga. 793, 800 (2) (b) (ii), 770 S.E.2d 832 (2015) (citation and punctuation omitted). So the dispositive question for the superior court was whether the allegations of the mandamus petition, construed most favorably to The Quarters, disclosed with certainty that The Quarters could not show that it had a right to relief and no other adequate legal remedy to obtain it.

In its petition for mandamus, The Quarters alleged that on April 7, 2017, it submitted for approval a preliminary plat of a townhome development, along with all required forms and plans. The City’s Unified Development Ordinance ("the ordinance")¹ in effect at that time set out a procedure and a timeline. It provided,

[w]ithin 30 days after the submission [to the City’s Zoning Administrator] of the preliminary plat and other materials submitted for conformity thereof to this [ordinance] and negotiations with the [developer] on changes deemed advisable and the kind and extent of improvements to be made by him, the Planning Commission shall hold a public hearing on the application and shall express its recommendations regarding approval as conditional approval and state the conditions of such approval, if any, or if disapproval, shall express its disapproval and its reasons therefor.

It further provided that, within six months after receiving conditional approval of the preliminary plat, the developer could submit for approval a final plat that conformed substantially to the preliminary plat. Then, "[w]ithin 30 days after submission of the final plat and supplementary material required for approval, the Planning Commission shall express its recommendation," and "[n]ot later than 3 days after a recommendation by the Planning Commission, the final plat and other supplementary material will be transmitted by the Zoning Administrator on behalf of the Planning Commission to the City Commission for final action." In some circumstances the ordinance authorized an alternative to the usual procedure—a recommendation by the Planning Commission and then final action by the City Commission. In those specified circumstances, the Zoning Administrator was authorized, in name of the Planning Commission and City Commission, to issue a final approval on her own authority. In either case, the ordinance required some action on the part of the Zoning Administrator that would lead to a final action on the plat by the City.

The mandamus petition alleged that no action was taken on The Quarters’s plat. It alleged that the City and Threadgill refused to submit the preliminary plat to the Planning Commission for a public hearing or recommendations. Over the next month and a half, a representative of The Quarters attempted several times to reach Threadgill to ask about the status of its submission, but Threadgill did not return that person’s calls. On May 23, The Quarters’s representative spoke with Threadgill, who refused to comment on the submission at that time. After The Quarters’s attorney wrote Threadgill asking for comments, on June 8 the City’s attorney sent The Quarters a document titled "Plat Review Comments—Zoning" containing Threadgill’s comments. Among other things, Threadgill required The Quarters to make some changes not required by the ordinance.

On June 16, 2017, The Quarters submitted a revised preliminary plat that addressed most of Threadgill’s comments but did not make the changes not required by the ordinance. In a June 16 letter, The Quarters’s attorney set forth its objections to the latter items. Two days later, the City revised the ordinance to require those changes. Over the next month, The Quarters’s representative left several messages for Threadgill asking about the status of its submission, to which Threadgill did not respond.

On July 21, 2017, The Quarters filed its petition for mandamus, in which it asserted that it was entitled to have its preliminary plat reviewed under the version of the ordinance in effect when it submitted the preliminary plat, to have the preliminary plat approved, or, at a minimum, to have a public hearing on the preliminary plat before the Planning Commission and a decision from the City Commission. The City and Threadgill moved to dismiss the petition under OCGA § 9-11-12 (b) (6), arguing that The Quarters had no clear right to the relief sought, that it had not exhausted its available remedies, and that it had no vested right in the application of the version of the ordinance in effect at the time it submitted the preliminary plat. The City separately moved to dismiss the petition under OCGA § 9-11-12 (b) (6), arguing that the relief sought by The Quarters can only be performed by individual officials, not the City. Agreeing with all of these arguments, the superior court granted both motions. We review that ruling de novo. Blalock v. Cartwright , 300 Ga. 884, 885 (I), 799 S.E.2d 225 (2017).

2. Clear right to relief .

The City and Threadgill argue that the superior court was correct in dismissing the mandamus petition because the petition "failed to demonstrate a clear legal right to mandamus relief." But the petition alleged that The Quarters submitted a preliminary plat that complied with requirements of the ordinance but did not receive the type of consideration prescribed by the ordinance, and the City and Threadgill have not established that The Quarters could not possibly introduce evidence within the framework of the petition to demonstrate the necessary right to relief.

A clear right to relief exists where an official or agency fails entirely to act or commits a gross abuse of discretion in performing a public duty that the official or agency is required by law to perform. SJN Properties , 296 Ga. at 800 (2) (b) (ii), 770 S.E.2d 832. Mandamus is the proper remedy when a governmental board fails to conduct a hearing as required by law. Acree v. Walls , 240 Ga. 778, 784 (1), 243 S.E.2d 489 (1978). Moreover, "[w]hen the law requires an official to exercise discretion, mandamus will lie to compel that discretion be exercised, [although it will not] dictate the result." Ga. Assoc. of Professional Process Servers v. Jackson , 302 Ga. 309, 313 (2), 806 S.E.2d 550 (2017). The petition alleged that The Quarters submitted a preliminary plat that complied with requirements of the ordinance. This submission triggered an obligation of the City and Threadgill to consider and act on the submission. The City’s Planning Commission was required to hold a public hearing and issue a recommendation on the preliminary plat within a particular time frame, which Threadgill, as the City’s Zoning Administrator, was required to then forward to the City Commission for final action. Alternatively, Threadgill could herself approve the plat. The petition alleged that neither course of action occurred. In other words, it alleged the inaction of a public agency or official charged with acting in a particular manner. Mandamus is a remedy for such inaction. See Hilton Constr. Co. v. Rockdale County Bd. of Ed. , 245 Ga. 533, 540 (4), 266 S.E.2d 157 (1980). Consequently, the mandamus petition and attached ordinance did not "disclose with certainty that [The Quarters] would not be entitled to relief under any state of provable facts." Ewing v. City of Atlanta , 281 Ga. 652, 654 (2), 642 S.E.2d 100 (2007). See Clairmont Dev. Co. v. Morgan , 222 Ga. 255, 258-259 (2), 149...