Schumacher v. City of Roswell, A16A0582.

• Decision Date: 27 December 2017
• Docket Number: A16A0582.
• Citation: 809 S.E.2d 262
• Parties: SCHUMACHER et al. v. CITY OF ROSWELL et al.
• Court: Georgia Court of Appeals

344 Ga.App. 135

809 S.E.2d 262

SCHUMACHER et al.

v.CITY OF ROSWELL et al.

A16A0582.

Court of Appeals of Georgia.

December 27, 2017

John R. Monroe, Atlanta, for Appellant.

Freeman Mathis & Gary, Coleen Daugherty Hosack, Dana Kristin Maine, Atlanta, for Appellee.

Barnes, Presiding Judge.

Eric Schumacher and Mike Nyden are property owners in the City of Roswell who brought this lawsuit challenging the City's adoption of a new zoning ordinance called the Unified Development Code (the "Code") on procedural due process and other grounds. The trial court granted the City's motion for judgment on the pleadings and dismissed all of the plaintiffs' claims. The plaintiffs filed a direct appeal challenging only the dismissal of their procedural due process claims, and after the appeal was transferred to this Court from the Supreme Court of Georgia, we dismissed the appeal for lack of jurisdiction on the ground that the lawsuit was a "zoning case" requiring an application for discretionary appeal. See Schumacher v. City of Roswell , 337 Ga. App. 268, 787 S.E.2d 254 (2016). The Supreme Court granted certiorari and reversed our decision to dismiss the appeal, holding that "a stand-alone lawsuit challenging an ordinance as facially invalid—unconnected to any individualized determination about a particular property—is not a ‘zoning case’ ... and does not require an application under OCGA § 5-6-35." Schumacher v. City of Roswell , 301 Ga. 635, 635, 803 S.E.2d 66 (2017). Accordingly, we vacate our previous opinion dismissing the appeal and adopt the Supreme Court's opinion as our own.

We now address the substantive legal question raised by the parties: whether the trial court erred in dismissing the plaintiffs' procedural due process claims based on the adequate state remedy doctrine. For the reasons discussed more fully below, we conclude that the trial court committed no error because Georgia's Zoning Procedures Law, OCGA § 36-66-1 et seq. (the "ZPL"), provided the plaintiffs with an adequate state remedy for alleged procedural irregularities committed by the City in the adoption of the Code.¹ Therefore, we affirm.

The factual history of this case was summarized by our Supreme Court:

As alleged in their amended complaint, [the plaintiffs] are citizens and taxpayers of the City ... and own residential property there. 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.

(Footnote omitted.) Schumacher , 301 Ga. at 635-636, 803 S.E.2d 66.

After the City Council adopted the Code and a new zoning map, the plaintiffs sued the City, challenging the manner in which the City Council had approved the UDC and map.² The plaintiffs' complaint, as later amended, alleged, among other things, that the adoption of the Code violated the ZPL and the plaintiffs' procedural due process rights under the United States and Georgia Constitutions. The complaint further alleged that the Code adversely affected each plaintiff's property and sought a declaratory judgment that the Code was void and unenforceable as illegally enacted, an injunction prohibiting its enforcement, and attorney fees and costs.

The City answered, denying the plaintiffs' allegations. The City attached and incorporated by reference to its answer certified copies of the Code, the new zoning map, and the minutes of the two City Council meetings in which the Code and map were discussed and approved. Additionally, the City filed a motion for judgment on the pleadings in which it sought the dismissal of all of the plaintiffs' claims. The plaintiffs opposed the City's motion and filed a motion for interlocutory injunction to prohibit enforcement of the Code during the litigation.

After conducting a hearing, the trial court entered an order granting the City's motion for judgment on the pleadings on all of the plaintiffs' claims and denying the plaintiffs motion for an interlocutory injunction as moot. The trial court dismissed the plaintiffs' procedural due process claims on the ground that the ZPL provided the plaintiffs an adequate state remedy for any alleged failure by the City Council to provide them with sufficient notice and an opportunity to be heard before enacting the Code. The trial court dismissed the plaintiffs' ZPL claim on the ground that, based on the pleadings before the court (including the complaint, answer, and exhibits attached to the answer), the City had complied with the notice and public hearing requirements imposed by the ZPL in adopting the Code.

The plaintiffs contend on appeal that the trial court erred in entering judgment on the pleadings on their procedural due process claims.

On appeal from a grant of judgment on the pleadings, we conduct a de novo review of the trial court's order to determine whether the undisputed facts appearing from the pleadings entitle the movant to judgment as a matter of law. The grant of a motion for judgment on the pleadings under OCGA § 9-11-12 (c) is proper only where there is a complete failure to state a cause of action or defense. For purposes of the motion, all well-pleaded material allegations by the nonmovant are taken as true, and all denials by the movant are taken as false. But the trial court need not adopt a party's legal conclusions based on these facts.... Moreover, in considering a motion for judgment on the pleadings, a trial court may consider exhibits attached to and incorporated into the pleadings, including exhibits attached to the complaint or the answer.

(Citations and punctuation omitted.) Caldwell v. Church , 341 Ga. App. 852, 855-856 (2), 857 (2) (a), 802 S.E.2d 835 (2017). Guided by this standard of review, we conclude that the trial court committed no error in dismissing the plaintiffs' procedural due process claims because the ZPL provided the plaintiffs with an adequate state remedy to cure alleged procedural irregularities in the City's adoption of the Code.

"Both the Georgia and Federal Constitutions prohibit the state from depriving any person of life, liberty, or property, without due process of law." (Citations and punctuation omitted.) Atlanta City School Dist. v. Dowling , 266 Ga. 217, 218, 466 S.E.2d 588 (1996). See U. S. Const. Amend. 14 ; Ga. Const. of 1983, Art. I, Sec. I, Par. I. "Due process of law as guaranteed by the Federal and State Constitutions includes notice and hearing as a matter of right where one's property rights are involved." Dansby v. Dansby , 222 Ga. 118, 120 (1), 149 S.E.2d 252 (1966). See Sikes v. Pierce , 212 Ga. 567, 568 (2), 94 S.E.2d 427 (1956) ("It is a prerequisite to the validity of a municipal ordinance that notice be given and an opportunity for a hearing be accorded to anyone who has an interest or property right in the property which may be affected by the zoning regulation.") (citations and punctuation omitted). Personal notice to property owners is not required when a municipality adopts a new comprehensive zoning plan; rather, notice by publication satisfies due process. See Turner v. City of Atlanta , 257 Ga. 306, 306 (1), 357 S.E.2d 802 (1987) ; Wilson v. City of Snellville , 256 Ga. 734, 735 (1), 352 S.E.2d 759 (1987) ; Willingham v. White , 229 Ga. 75, 77, 189 S.E.2d 442 (1972).

Furthermore, even if municipal officials initially fail to follow proper procedures in adopting a zoning ordinance, that does not end the constitutional inquiry in light of the adequate state remedy doctrine.

Unlike a substantive due process claim, a constitutional violation of procedural due process is not complete unless and until the [s]tate fails to provide due process.... In other words, the state may cure a procedural deprivation by providing a later procedural remedy; only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation [become] actionable[.]

(Citations and punctuation omitted.) Dowling , 266 Ga. at 218, 466 S.E.2d 588. See Gregory v. Sexual Offender Registration Review Bd. , 298 Ga. 675, 690 (3), 784 S.E.2d 392 (2016) ; Jones v. Chatham County , 223 Ga. App. 455, 457 (3), 477 S.E.2d 889 (1996). See also Pryor Organization v. Stewart , 274 Ga. 487, 491 (3), 554 S.E.2d 132 (2001) ("An initial procedural violation can be cured by a subsequent procedural remedy."). "It is the state's failure to provide adequate procedures to remedy the otherwise procedurally flawed deprivation of a protected interest that gives rise to a federal procedural due process claim." (Citations and punctuation omitted.) Boatright v. Glynn County School Dist. , 315 Ga. App. 468, 470 (1), 726 S.E.2d 591 (2012). The adequate state remedy doctrine applies equally to procedural due process claims under the Georgia Constitution. See Joiner v. Glenn , 288 Ga. 208, 209-210, 702 S.E.2d 194 (2010) ; Camden County v. Haddock , 271 Ga. 664, 665 (1), 523 S.E.2d 291 (1999). And under both constitutions, "[t]he focus of the procedural due process analysis is whether the state makes adequate procedures available—not whether the plaintiff takes advantage of...