Stendahl v. Cobb County

• Citation: 668 S.E.2d 723,284 Ga. 525
• Decision Date: 27 October 2008
• Docket Number: No. S08A1395.,S08A1395.
• Parties: STENDAHL et al. v. COBB COUNTY et al.
• Court: Georgia Supreme Court

668 S.E.2d 723

284 Ga. 525

STENDAHL et al. v. COBB COUNTY et al.

No. S08A1395.

Supreme Court of Georgia.

October 27, 2008.

Raymond K. Williams, Weissman, Nowack, Curry & Wilco, P.C., Atlanta, for Appellants.

Fred D. Bentley Jr., Coleen D. Hosack, Bentley, Bentley & Bentley, J. Kevin Moore, John Howard Moore, Moore, Ingram, Johnson & Steele, Marietta, for Appellees.

BENHAM, Justice.

Appellants Teresa Stendahl and Timothy Cannon own property adjacent to a 65-acre parcel re-zoned by appellee Cobb County Board of Commissioners ("the Board") on the application of appellees Johnson Ferry Baptist Church and Wellstar Health System. Within 30 days of the re-zoning decision, appellants filed an action in the Superior Court of Cobb County in which they appealed the re-zoning decision pursuant to the Cobb County zoning ordinance, alleging the re-zoning decision violated the Cobb County zoning ordinance and the Board's minutes inaccurately reflected the action taken on the re-zoning application. In addition, they sought a declaration that the re-zoning decision was unconstitutional and a writ of mandamus to reverse the re-zoning decision and to deny the re-zoning application. Attached to the complaint were 136 pages of documents which had been filed with the application for re-zoning or introduced in support of or against the application while it was pending before the Board. On appellees' motions, the trial court dismissed appellants' complaint for failure to state a claim upon which relief could be granted and for failure to join as defendants the owners of the re-zoned property who the trial court found to be indispensable parties. OCGA §§ 9-11-12(b)(6)-(7); § 9-11-19. We granted the application for discretionary review filed by appellants Stendahl and Cannon to review the trial court's ruling.¹

1. A motion to dismiss for failure to state a claim upon which relief can be granted

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. 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.

Scouten v. Amerisave Mtg. Corp., 283 Ga. 72(1), 656 S.E.2d 820 (2008).

In order to have a superior court invalidate the re-zoned classification of a neighboring property, the complaining party must show the zoning change abridged the complaining party's constitutional rights, the re-zoning decision was the result of fraud or corruption, or the re-zoning power was manifestly abused to the oppression of the complaining party. Cross v. Hall County, 238 Ga. 709, 711-712, 235 S.E.2d 379 (1977). After examining the complaint and the documents attached to it,² the trial court observed that the complaint contained no allegations of fraud or corruption and determined that the allegations for reversal of the zoning decision did not and could not rise to the level of demonstrating that the Board's re-zoning decision resulted from a manifest abuse of discretion, fraud, or corruption, and that any evidence appellants produced at trial would, at most, only conflict with the evidence supporting the re-zoning decision. Employing the "any evidence" standard of review, the trial court determined that, as a matter of law, such conflicting evidence would be insufficient to overturn the zoning decision, that there was no set of provable facts asserted in appellants' claims which would entitle them to relief, and that there was no evidence appellants could introduce sufficient to warrant overturning the zoning decision. The trial court concluded by granting the motion to dismiss for failure to state a claim.

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. Mayor &c. of Savannah v. Rauers, 253 Ga. 675(1), 324 S.E.2d 173 (1985). Judicial review of the grant or denial of a re-zoning application is a de novo proceeding because the General Assembly has not provided a statutory mechanism for the direct appeal to superior court of the zoning decisions of local governing authorities. Cobb County Bd. of Commrs. v. Poss, 257 Ga. 393(4), 359 S.E.2d 900 (1987). See also Walton County v. Scenic Hills Estates, 261 Ga. 94, 95, 401 S.E.2d 513 (1991) (Zoning Procedures Law, OCGA § 36-66-1 et seq., does not grant local governments the right to create direct appeal of zoning decisions to superior court). In the de novo proceeding, plaintiffs/appellants may introduce new evidence, including expert testimony. RCG Properties v. City of Atlanta Bd. of Zoning Adjustment, 260 Ga.App. 355(1), 579 S.E.2d 782 (2003). Because appellants are entitled to de novo review, the trial court erred when it granted the motion to dismiss for failure to state a claim after applying the "any evidence" standard to the contents of the administrative record attached to the complaint and concluding there was no set of provable facts asserted in appellants' claims which would entitle them to relief as well as concluding there was no evidence appellants could introduce sufficient to warrant overturning the zoning decision. The trial court's reliance on our decisions in Jackson County v. Earth Resources, 280 Ga. 389, 391, 627 S.E.2d 569 (2006), and City of Roswell v. Fellowship Christian School, 281 Ga. 767, 642 S.E.2d 824 (2007), regarding the applicable standard of review was misplaced inasmuch as those cases did not involve the modification of a zoning ordinance, but were appeals involving a conditional use permit, a zoning technique that permits a local governing authority to exercise its discretion and permit a special use authorized by the existing zoning ordinance. Dougherty County v. Webb, 256 Ga. 474(1), 350 S.E.2d 457 (1986).

2. The trial court also dismissed the action filed in superior court for appellants' failure to join indispensable parties. See OCGA §§ 9-11-12(b)(7); 9-11-19.³

In their action, appellants named as defendants Cobb County and its Board of Commissioners, the individual commissioners, and the two re-zoning applicants (Johnson Ferry Baptist Church and Wellstar Health System). It is clear that the governing authority with the power to re-zone property and the successful re-zoning applicant are proper defendants in a suit attacking the grant of a re-zoning application. Riverhill Community Assn. v. Cobb County Bd. of Commrs., 236 Ga. 856(2), 226 S.E.2d 54 (1976). The trial court ruled that the three owners of the re-zoned property with whom Johnson Ferry and Wellstar had contracted to purchase the property, were necessary defendants because they were real parties in interest since the zoning classification ran with the land and not with the applicants for re-zoning. The trial court determined that appellants were put on notice of the failure to...