Rock v. Head, A01A2170.

• Citation: 254 Ga. App. 382,562 S.E.2d 768
• Decision Date: 21 March 2002
• Docket Number: No. A01A2170.,A01A2170.
• Parties: ROCK v. HEAD et al.
• Court: United States Court of Appeals (Georgia)

562 S.E.2d 768

254 Ga. App. 382

ROCK v. HEAD et al.

No. A01A2170.

Court of Appeals of Georgia.

March 21, 2002.

Dillard & Galloway, G. Douglas Dillard, Atlanta, Andrea C. Jones, for appellant.

Susan M. Garrett, Decatur, Robert E. Price, Joan F. Roach, Decatur, for appellees.

SMITH, Presiding Judge.

Several plaintiffs sought judicial guidance concerning the effect of a vote by the DeKalb County Board of Commissioners with respect to defendant John Rock's application to change the zoning designation of his property from residential to office use. This appeal arises out of the trial court's order granting a declaratory judgment in favor of those plaintiffs. The facts of this case are carefully set forth in Head v. DeKalb County, 246 Ga.App. 756, 542 S.E.2d 176 (2000), and need not be repeated here. In that case, we concluded that the trial court erroneously dismissed the lawsuit on the ground that it was an untimely appeal of a zoning decision. Id. at 759(1), 542 S.E.2d 176. We also found that the alternative basis for the dismissal, the trial court's conclusion that the plaintiffs had no standing to bring the action, was based on an incorrect legal assumption. Id. at 760, 542 S.E.2d 176. We did not decide the standing issue, however, because we concluded that the issue was not fully litigated in the trial court. Id. at 760-761(2), 542 S.E.2d 176. The trial court subsequently entered another order concluding that the plaintiffs had standing to bring the lawsuit. The court also decided the issue of the effect of the board's decision, finding that the vote, although four in favor and three against rezoning, did not constitute approval of the application. Rock appeals from these rulings. We agree with the trial court that the plaintiffs had standing to bring the declaratory judgment action. In addition, under the language of the applicable Georgia law concerning approval of zoning applications in DeKalb County, we conclude that the trial court correctly found that the board's vote did not constitute an approval of Rock's application for rezoning. We therefore affirm.

1. We first address Rock's contention that the plaintiffs did not have standing to bring the declaratory judgment action. In Head, supra, we stated that the issue of whether plaintiffs had standing to obtain a declaratory judgment as to the zoning status of Rock's property depended on plaintiffs' status under the Declaratory Judgment Act. Id. at 760, 542 S.E.2d 176. Specifically, we found that whether they were entitled to have a court declare that status depended on whether they were " in need of judicial guidance to enable them to avoid incurring additional liability or jeopardizing their rights." (Punctuation and footnote omitted.) Id. at 760-761, 542 S.E.2d 176. This issue depended partly on two questions: (1) whether plaintiffs have the ability to prevent Rock from developing the property in violation of its zoning designation; and (2) whether this ability would be jeopardized by the trial court's failure to declare the zoning designation. Id. at 761, 542 S.E.2d 176.

We find the trial court's reasoning apt on this issue, and we adopt it here:

[T]he individual plaintiffs do possess standing to seek a declaratory judgment as to the zoning status of the Rock property. It is well settled that property owners may seek to prevent their neighbors from developing or using their property in violation of its existing zoning without showing special damages. See Palmer v. Tomlinson, 217 Ga. 399, 400 (1961).... Thus, if it is declared that Dr. Rock's property was not lawfully rezoned to OI and is therefore still in the RM-75 zoning districts, the plaintiffs, as neighboring property owners, would be entitled to seek injunctive relief to prevent him from using the property in violation of the zoning restrictions.¹

2. Rock argues that the majority vote in favor of his rezoning application constituted approval of his request. As correctly stated by the trial court, the current zoning status of Rock's property depends on the outcome of the board's vote, after application of Section 9(a)(10) of the DeKalb County Organizational Act. That section states that "no planning or zoning ordinance shall become law unless approved by the member of the Commission representing the district in which the subject property is located, or by one of the members of the Commission elected from the county at large." Ga. L.1981, pp. 4304, 4311 (the 1981 Act). When this provision was enacted, the DeKalb County Commission consisted of five district members and two members elected from the county at large. Id. at 4305, § 2(a). In 1992, however, the 1981 Act was amended to eliminate the election of the at-large commissioners and to replace them with two geographically distinct "commissioner districts" or "superdistricts." Ga. L.1992, pp. 6567, 6572-6575 (the 1992 Act). The 1992 Act did not amend the language of section 9(a)(10) of the 1981 Act concerning at-large commissioners, although the 1992 Act does recite that "[a]ll laws and parts of laws in conflict with this Act are repealed." Ga. L. 1992, pp. 6566, 6582, § 6.

As mentioned above, during the public hearing on Rock's application, four board members voted in favor of rezoning, and three voted against. Head, supra at 757, 542 S.E.2d 176. Rock's property is located in District 2 and Superdistrict 6. The commissioners from these districts voted against the rezoning, although the Superdistrict 7 commissioner voted in favor. Id. Applying section 9(a)(10) of the 1981 Act to these facts, the trial court stated that

the rezoning did not receive the affirmative vote of any commissioner in whose district the property is located. It is further undisputed that DeKalb County no longer has any commissioners who are "elected from the county at large," having replaced the at-large commissioners with two superdistrict commissioners. Therefore, the requirements of § 9(a)(10) were not satisfied by the affirmative vote of ... the superdistrict commissioner for District Seven, not an "at-large" commissioner.

Rock correctly points out that, when construing a statute, a court must "look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy." OCGA § 1-3-1(a). And as stated in City of Jesup v. Bennett, 226 Ga. 606, 608(2), 176 S.E.2d 81 (1970), we must give a statute the construction that "will effectuate the legislative intent and purpose." Rock also accurately states that we must construe a statute "to make all its parts harmonize and to give a sensible and intelligent effect to each part." Houston v. Lowes of Savannah, 235 Ga. 201, 203, 219 S.E.2d 115 (1975). Rock argues that the trial court's construction of the 1981 Act as it applies to the board's vote violates these principles, maintaining that the "interpretation finds no basis in any intention of the General Assembly" and "makes no effort to harmonize and reconcile the basic statute with the subsequent amendment." He further argues that the trial court's ruling creates a new requirement not found in either the 1981 Act or the 1992 Act—"the alternative of consent of the Super District Commissioner in whose district the property is located." Finally, Rock maintains that the ruling "fundamentally alters" the anti-majoritarian exception to majority rule found in section 9(a)(10) to permit a two-person dissent to overrule a four- or five-person majority.

To cure the supposed ills created by the trial court's ruling, Rock urges us to conclude that the 1992 Act "simply substitutes Super District Commissioners for At Large Commissioners." Under this construction, the approval of either superdistrict commissioner would satisfy the 1981 Act. According to Rock, such an interpretation is consistent with the General Assembly's intent, avoids a repeal by implication, and avoids rendering any part of the 1981 Act meaningless.

We do not agree. "The construction of statutes must square with common sense and sound reasoning." (Citation and punctuation omitted.) Tuten v. City of Brunswick, 262 Ga. 399, 404(7)(a)(i), 418 S.E.2d 367 (1992). The trial court's interpretation is logically sound. The 1992 Act eliminated at-large commissioners and divided the county into two geographically distinct superdistricts, and one commissioner must be chosen from each. Although the 1992 Act does not expressly amend section 9(a)(10) of the 1981 Act concerning the vote of at-large commissioners, the 1992 Act does state that all "parts of laws" in conflict with the 1992 Act are repealed. Ga. L.1992, p. 6582. Thus, construing the "at-large" language to have been repealed by the 1992 Act, no zoning changes can be approved without the vote of a commissioner in whose district the property is located. Neither the district commissioner nor the superdistrict commissioner from the district in which Rock's property is located voted in favor of the rezoning, and the application therefore was not approved. We agree with appellees that the trial court's interpretation of section 9(a)(10) "upholds the validity of the statute and requires no inferences or leaps of faith."

In addition, we conclude that the underlying basis for the remainder of Rock's arguments, his contention that the trial court's interpretation violates the legislative intent underlying the 1981 Act, is incorrect. He argues that the legislative intent as revealed by the scheme of the 1981 Act is that the seven-member board govern itself by majority rule with the exception of the limited anti-majoritarian vote in the context of zoning amendments, as set out in section 9(a)(10). He argues that under the prior law, a four-three vote could be defeated only in the narrow situation that occurred when the three-person minority was composed of the district commissioner and both at-large commissioners and that a simple substitution, "in form and substance," of superdistrict...