Schumacher v. City of Roswell

• Decision Date: 30 June 2017
• Docket Number: S16G1703.
• Parties: SCHUMACHER et al. v. CITY OF ROSWELL.
• Court: Georgia Supreme Court

301 Ga. 635

803 S.E.2d 66

SCHUMACHER et al.

v.CITY OF ROSWELL.

S16G1703.

Supreme Court of Georgia.

Decided: June 30, 2017

John R. Monroe, JOHN MONROE LAW, PC, 9640 Coleman Road, Roswell, Georgia 30075, for Appellant.

Dana Kristin Maine, Connor McGinnis Bateman, FREEMAN MATHIS & GARY, LLP, 100 Galleria Parkway, Suite 1600, Atlanta, Georgia 30339, for Appellee.

PETERSON, Justice.

The Roswell City Council enacted a new Unified Development Code (the "Code") to govern land use issues; the Code included a zoning map. Several Roswell property owners filed a lawsuit in superior court challenging the process by which the City Council enacted the Code. When the superior court ruled against the property owners, they filed a direct appeal. The Court of Appeals dismissed their direct appeal, concluding that their lawsuit was a "zoning case" under our decisions in Trend Development Corp. v. Douglas County, 259 Ga. 425, 425-426 (1), 383 S.E.2d 123 (1989), and O . S . Advertising Co. v. Rubin, 267 Ga. 723, 482 S.E.2d 295 (1997) ( " Rubin"), and thus required an application for discretionary appeal under OCGA § 5-6-35 (a) (1). But a stand-alone lawsuit challenging an ordinance as facially invalid—unconnected to any individualized determination about a particular property—is not a "zoning case" under Trend and Rubin and does not require an application under OCGA § 5-6-35. Accordingly, we reverse.

As alleged in their amended complaint, Eric Schumacher and Mike Nyden ("Plaintiffs") are citizens and taxpayers of the City of Roswell ("City") and own residential property there.¹ In February 2014, after conducting two public meetings, the Council of the City of Roswell ("City Council") approved a new zoning ordinance—the Code—and a new zoning map. The Code substantially replaced the City's existing zoning ordinance.

As detailed in meeting minutes attached as an exhibit to the answer to the amended complaint, Plaintiff Schumacher had attended and participated in the first public meeting, voicing his concerns about the proposed Code. In particular, he expressed his concerns about density and the public's ability to understand the proposal. At the second public meeting, a letter from Schumacher's counsel was read into the record. The letter argued that the City had not complied with state statutory procedures for adoption of a new zoning code.

Among other things, the letter argued that the City had violated the law by inaccurately telling the public that the proposal would not change existing property rights. In neither meeting did Schumacher or his counsel address any issue with the zoning of any particular parcel of property.

Following adoption of the Code, Plaintiffs filed suit against the City in the Superior Court of Fulton County.² The complaint, as amended, challenged the manner in which the City Council had approved the Code as contrary to law for a variety of reasons. Plaintiffs also alleged that the Code adversely affected their property. They sought a declaratory judgment that the Code was illegally enacted and, therefore, void and unenforceable, and an injunction prohibiting its enforcement, as well as attorney fees and costs.

The City denied Plaintiffs' allegations, and attached and incorporated by reference to its answer copies of the Code, the new zoning map, and the minutes of the two City Council meetings where the Code and map were discussed and approved. The City also filed a motion for judgment on the pleadings, seeking dismissal of all of Plaintiffs' claims. Plaintiffs opposed the City's motion and moved for an interlocutory injunction to prohibit enforcement of the Code during the pendency of the litigation. Following a hearing, the superior court granted the City's motion for judgment on the pleadings as to all of Plaintiffs' claims and denied as moot Plaintiffs' motion for an interlocutory injunction. Plaintiffs filed a direct appeal of the adverse ruling, challenging only the dismissal of some of their claims against the ordinance. The City moved to dismiss Plaintiffs' direct appeal for lack of jurisdiction, arguing that Plaintiffs were required to comply with the application procedures for discretionary appeal. The Court of Appeals agreed and dismissed the direct appeal. Schumacher v. City of Roswell, 337 Ga. App. 268, 787 S.E.2d 254 (2016). We granted certiorari.

1. The enactment of the Code was not a "decision" of an "administrative agenc [y]" under OCGA § 5-6-35 (a) (1).

We have advised litigants that they must "review the discretionary application statute to see if it covers the underlying subject matter of the appeal. If it does, then the party must file an application for appeal as provided under OCGA § 5-6-35." Rebich v. Miles, 264 Ga. 467, 468, 448 S.E.2d 192 (1994). As relevant here, OCGA § 5-6-35 (a) (1) requires an application for "Appeals from decisions of the superior courts reviewing decisions of ... state and local administrative agencies." The statutory question presented in this case is whether a city council's adoption of a new zoning code is the "decision" of a "local administrative agenc[y]."

Our caselaw makes clear that an act of an administrative agency is a "decision" within the meaning of this statute only when it is a determination of an "adjudicative nature." See State of Georgia v. Intl. Keystone Knights of the Ku Klux Klan, Inc., 299 Ga. 392, 401 (4) (a), 788 S.E.2d 455 (2016) (citations and punctuation omitted). We have noted that our opinions draw a distinction between determinations of an adjudicative nature which fall within the meaning of the term "decision" as used in OCGA § 5-6-35 and "those that are legislative or quintessentially executive in nature." Id. at 403 (4) (a), 788 S.E.2d 455. While requiring applications for discretionary review in cases where an administrative agency made a determination of an adjudicative nature, "[w]e consistently have refused ... to require applications in cases concerning executive determinations and those involving rulemaking or other determinations of a legislative nature." Id. at 403-404 (4) (a), 788 S.E.2d 455.

The conclusion that enactment of a new development code is an exercise of legislative power—and thus not an adjudicative "decision" under the statute—is compelled by our case law:

Administrative determinations of a legislative nature are prospective in application, general in application, and often marked by a general factual inquiry that is not specific to the unique character, activities or circumstances of any particular person. Determinations of an adjudicative nature, on the other hand, are immediate in application, specific in application, and commonly involve an assessment of facts about the parties and their activities, businesses, and properties.

Id. at 401 (4) (a), 788 S.E.2d 455 (citations and punctuation omitted). Nothing about the adoption of a new development code fits within this definition of "decision."

The lawsuit filed in superior court challenged only one action: the Roswell City Council's adoption of the Code. The suit seeks no individualized zoning-related relief. Nothing in the adoption of the Code focused on "the unique character, activities or circumstances of any particular person," or involved an "assessment of facts about the parties and their activities, businesses, and properties." There was no individualized determination by any level of city government. The adoption of the Code was prospective in nature, as the adopting City ordinance provided that the Code was to take effect after June 1,

2014, and was to apply for the entire City. Thus, the adoption of the Code was not a "decision" as we have interpreted that statutory term.

Moreover, the City Council was not acting as an "administrative agenc [y]." The enactment of ordinances is at the core of the City Council's legislative functions. Indeed, the City argued below that the defendant City Council members should be dismissed from the suit by virtue of their legislative immunity because they had "engaged in a legislative function" in adopting the Code. OCGA § 5-6-35 (a) (1) requires both a "decision" and an "administrative agenc[y]"; this case has neither, and thus the statute does not require an application for discretionary appeal.

2. Trend and Rubin do not apply here.

Trend and Rubin do not require a different result. Trend and Rubin both announced that applications are required to appeal in "zoning cases." Rubin, 267 Ga. at 723, 482 S.E.2d 295 ("Adhering to our decision in Trend... we reiterate that all appeals in zoning cases require an application"); Trend, 259 Ga. at 425 (1), 383 S.E.2d 123 ("The Court takes this opportunity to advise bench and bar that appeals in zoning cases will henceforth require an application."). But a careful reading of those cases shows that they can be reconciled with OCGA § 5-6-35 (a) (1) because a "zoning case" is a case involving a "decision" by an "administrative agenc[y]" dealing with the zoning or allowed use of a particular parcel of land. No such decision is at issue here.

In Trend, an appeal was taken from the denial of a landowner's petition to rezone certain property. That's the sort of individualized determination that we would generally consider a "decision" under the statute. See Keystone Knights, 299 Ga. at 401 (4) (a), 788 S.E.2d 455. The agency making the decision—the county commission—did not qualify as an "administrative agenc[y]" at the time Trend was decided. See Geron v. Calibre Cos., 250 Ga. 213, 216 (1), 296 S.E.2d 602 (1982) (holding "a county commission is not an administrative agency" for purposes of OCGA § 5-6-35 (a) (1) ). Seven years after Trend, however, we explicitly overruled Geron on this point, holding that, when performing a function that is "the equivalent of the function of an administrative agency," boards of commissioners are administrative agencies under OCGA § 5-6-35 (a) (1). See Swafford v. Dade County Bd. of Commrs., 266 Ga. 646, 647 (1), 469 S.E.2d 666 (1996). Because Tren...