Schroeder Holdings, LLC v. Gwinnett Cnty.

• Court: Georgia Court of Appeals
• Writing for the Court: Rickman, Chief Judge.
• Citation: Schroeder Holdings, LLC v. Gwinnett Cnty., 366 Ga.App. 353, 883 S.E.2d 37 (Ga. App. 2023)
• Docket Number: A22A1585
• Decision Date: 05 January 2023
• Parties: SCHROEDER HOLDINGS, LLC et al. v. GWINNETT COUNTY.

366 Ga.App. 353

883 S.E.2d 37

SCHROEDER HOLDINGS, LLC et al.

v.GWINNETT COUNTY.

A22A1585

Court of Appeals of Georgia.

January 5, 2023

Robert Matthew Reeves, Jaletta Long Smith, Andersen Tate & Carr, for Appellant.

Frank Edward Jenkins III, Erik John Pirozzi, Jenkins Bowen & Walker; Michael Peter Ludwiczak, Melanie Felicia Wilson, for Appellee.

Valerie A. Ross, Meredith W. Germain, Turner Ross Germain, amici curiae.

Rickman, Chief Judge.

Schroeder Holdings, LLC ("Schroeder"), SunTrust Bank, as the Executor of the Estate of Douglas Nash McCurdy, Centzil Partners, LP, Centzil Management, LLC, DMC, Inc., and Y & M Corp. (collectively, "Appellants") appeal from the superior court's order granting Gwinnett County's motion for summary judgment on Appellants’ claims arising from the County's denial of Schroeder's request to rezone a parcel of land. On appeal, Appellants argue that the superior court erred by concluding that the rezoning decision was quasi-judicial and that sovereign immunity bars their claims against the County. In the alternative, Appellants contend that the superior court erred in concluding that they failed to comply with one or more of the statutory prerequisites for seeking certiorari review. For the following reasons, we affirm in part and reverse in part.

We review de novo a grant or denial of summary judgment, viewing the evidence and all reasonable conclusions and inferences drawn from it in the light most favorable to the nonmovant. City of St. Marys v. Reed , 346 Ga. App. 508, 508-509, 816 S.E.2d 471 (2018). Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Id. at 508, 816 S.E.2d 471 ; see OCGA § 9-11-56 (c).

Although we review the record in the light most favorable to Appellants as the nonmovants, the relevant facts are not in dispute. In May 2019, Schroeder filed an application to amend the County's official zoning map, requesting that an approximately 100-acre tract of land be rezoned. In support of its application, Schroeder asserted that the property had no "reasonable economic use as currently zoned" because "the cost to improve this type of property would not yield enough return with the larger tracts" required under the existing zoning classification. The Gwinnett County Board of Commissioners considered Schroeder's application at a public meeting in October 2019. In December 2019, the Board denied Schroeder's rezoning application.

On January 2, 2020, Appellants filed a complaint and petition for certiorari in Gwinnett County Superior Court. In their complaint, Appellants sought a reversal of the denial of the rezoning application and asserted claims for regulatory taking, inverse condemnation, and substantive due process violations, in addition to seeking a review of the zoning decision pursuant to a writ of certiorari. On January 3, the superior court sanctioned Appellants’ petition for certiorari and issued the writ of certiorari.

The County filed a motion to dismiss, asserting that Appellants’ claims were barred by sovereign immunity and that Appellants had failed to comply with the legal requirements for a certiorari petition and writ, including naming a respondent as well as a defendant. In their response, Appellants moved to add the Gwinnett County Board of Commissioners and its five members as parties.

After the close of discovery, the County moved for summary judgment on all of Appellants’ claims, arguing that because the Board's decision was quasi-judicial, Appellants’ only remedy was review under a writ of certiorari, but that Appellants had failed to comply with the procedural requirements for seeking that review. In addition, the County contended that sovereign immunity barred Appellants’ claims, and that claims for inverse condemnation and regulatory taking are not allowed as a matter of law in zoning cases such as this one.

Following a hearing, the superior court entered an order granting the County's summary judgment motion. The court found that Appellants could only obtain relief by seeking certiorari review of the Board's decision, and that they had failed to comply with the statutory requirements for seeking that relief, including failing to name the Board as the respondent. The court also found that Appellants’ claims were barred by the doctrine of sovereign immunity. This appeal followed.

1. Appellants contend that the superior court erred by concluding that rezoning denials are quasi-judicial decisions that can only be challenged by means of a writ of certiorari. We agree.

OCGA § 5-4-1 (a) provides, in relevant part: "The writ of certiorari shall lie for the correction of errors committed by any inferior judicatory or any person exercising judicial powers[.]" Accordingly, "certiorari is not an appropriate remedy to review or obtain relief from the judgment, decision or action of an inferior judicatory or body rendered in the exercise of legislative, executive, or ministerial functions, as opposed to judicial or quasi-judicial powers." (Citation and punctuation omitted.) City of Cumming v. Flowers , 300 Ga. 820, 823 (3), 797 S.E.2d 846 (2017).

The Supreme Court of Georgia has distinguished between two types of zoning cases and explained that the procedures are different in the two types of cases. See Moon v. Cobb County , 256 Ga. 539, 539, 350 S.E.2d 461 (1986). In the first type, "a constitutional attack is made against a zoning ordinance[.]" Id. The constitutional issue "must be raised before the local governing body ... in order to afford that body the opportunity to amend its ordinance to bring it within constitutional limits." Id. ; Village Centers, Inc. v. DeKalb County , 248 Ga. 177, 178 (2), 281 S.E.2d 522 (1981) ("Before litigants seek a declaration by a court of equity that a zoning ordinance is unconstitutional as applied to their property, they must apply to the local authorities for relief by rezoning."). Local governing boards hearing such rezoning applications "are not sitting as judges," rather, "the requirement of notice is afforded to them so that they may amend the zoning ordinance if it needs to be amended, not so they can hold the ordinance constitutional or unconstitutional." (Citation and punctuation omitted.) Ashkouti v. City of Suwanee , 271 Ga. 154, 155, 516 S.E.2d 785 (1999). "When a zoning authority either grants or denies an application for re-zoning, it acts in a legislative capacity, and when the constitutionality of that legislative enactment is challenged in court, it is afforded de novo review, i.e., the superior court is not limited to examination of the evidence presented to the zoning authority." Stendahl v. Cobb County , 284 Ga. 525, 526 (1), 668 S.E.2d 723 (2008) ; see Mayor & Aldermen of the City of Savannah v. Rauers , 253 Ga. 675, 675 (1), 324 S.E.2d 173 (1985) (rejecting the proposed procedure of deciding a "constitutional challenge to the zoning ordinance on the basis of the evidence before the city council," such that "no trial de novo" would be permitted, because "the zoning authority is acting in a legislative capacity, and the constitutionality of its action in denying rezoning (adhering to the existing zoning ordinance) is being challenged in court").

The second type of zoning case is "where a special permit is sought under terms set out in the ordinance. In these circumstances the landowner must present his case on its facts and the law to the local governing body. That body acts in a quasi-judicial capacity to determine the facts and apply the law." (Citation and punctuation omitted.) Moon , 256 Ga. at 539, 350 S.E.2d 461. The second type of case is appealed to the superior court by writ of certiorari. Flowers , 300 Ga. at 825 (4), 797 S.E.2d 846 ("an administrative zoning body's quasi-judicial decision comes within the scope of OCGA § 5-4-1 and thus is subject to appeal to the superior court by petition for certiorari"). "When a party seeks certiorari review in the trial court of a decision of an administrative body acting in a quasi-judicial capacity, the trial court is bound by the facts and evidence presented to the administrative body." (Citation and punctuation omitted.) Forsyth County v. Mommies Properties, LLC , 359 Ga. App. 175, 184 (2), 855 S.E.2d 126 (2021). "The appropriate standard of review to be applied to issues of fact on writ of certiorari to the superior court is whether the decision below was supported by any evidence." (Citation and punctuation omitted.) Id. at 176, 855 S.E.2d 126.

In Diversified Holdings, LLP v. City of Suwanee , 302 Ga. 597, 600-605 (II), 807 S.E.2d 876 (2017), the Supreme Court of Georgia concluded that, for purposes of determining whether a discretionary application under OCGA § 5-6-35 (a) (1) must be filed instead of a notice of appeal under OCGA § 5-6-34 (a) (1), rulings on rezoning applications are adjudicative in nature. The Supreme Court's conclusion in Diversified calls into question the longstanding Georgia rule that a zoning authority's grant or denial of a rezoning application is a legislative act subject to de novo review by a superior court. See Stendahl , 284 Ga. at 526 (1), 668 S.E.2d 723 ; Rauers , 253 Ga. at 675 (1), 324 S.E.2d 173. We recognize that there is a strong argument that, after Diversified , rezoning decisions must be treated as quasi-judicial acts which may be reviewed only by writ of certiorari.¹ However, in Diversified , the Supreme Court did not address whether a party challenging the denial of a rezoning application must file its suit as a petition for certiorari to the superior court under OCGA § 5-4-1. And a decision of our Supreme Court "is not precedent for a point it does not actually address and resolve[,]" Ga. Dept. of Human Svcs. v. Addison , 304 Ga. 425, 434 (4) n. 9, 819 S.E.2d 20 (2018), so Diversified is not precedent for the issue of whether the denial of a rezoning application may only be challenged by way of a writ of certiorari.²

Under existing...