Sweet City Landfill, LLC v. Elbert Cnty.

• Decision Date: 28 August 2018
• Docket Number: A16A1794
• Citation: 818 S.E.2d 93,347 Ga.App. 311
• Parties: SWEET CITY LANDFILL, LLC et al. v. ELBERT COUNTY et al.
• Court: Georgia Court of Appeals

347 Ga.App. 311

818 S.E.2d 93

SWEET CITY LANDFILL, LLC et al.

v.ELBERT COUNTY et al.

A16A1794

Court of Appeals of Georgia.

August 28, 2018

Reconsideration Denied September 18, 2018

Lajuana Carmita Ransaw, McDonough, Michael Earl Mayo, Macon, Mary Katherine Durant, for Appellants.

Ansel Franklin Beacham III, Norman S. Fletcher, Lee Barrett Carter, Rome, Brandon Lowell Bowen, Robert Lige Walker, Cartersville, Billy Irvan Daughtry Jr., Elberton, for Appellees.

Rickman, Judge.

Appellants Sweet City Landfill, LLC, J.B. Wright, and Jack Stovall, Jr. (collectively, "Sweet City") appeal the trial court’s November 2015 order granting the motion to dismiss filed by Appellees Elbert County, The Board of Commissioners of Elbert County, and the County Manager of Elbert County (collectively, "Elbert County"). Relying on existing precedent of the Supreme Court of Georgia, we previously dismissed this appeal based on Sweet City’s failure to follow the discretionary appeal process. The Supreme Court subsequently granted Sweet City’s petition for certiorari, vacated our decision, and remanded the case to this Court for reconsideration in light of two recent decisions, Schumacher v. City of Roswell , 301 Ga. 635, 803 S.E.2d 66 (2017), and Shelley v. Town of Tyrone , 302 Ga. 297, 806 S.E.2d 535 (2017). For reasons that follow, we affirm.

Sweet City initially filed a "Verified Complaint for Declaratory Judgment, and Injunctive Relief" against Elbert County, seeking declarations that its waste disposal facility was not required to obtain a special use permit, that Elbert County’s Solid Waste Disposal Ordinance was unconstitutional on various grounds, and that Sweet City had a vested right to develop and operate a waste disposal facility notwithstanding the Elbert County zoning ordinance and map. Sweet City also sought a mandatory injunction to require Elbert County to issue a special use permit, if necessary, to allow Sweet City to develop and operate the waste disposal facility. Elbert County moved to dismiss the complaint, and Sweet City moved for summary judgment. The trial court subsequently issued an order in September 2014:

granting summary judgment to Sweet City on the grounds that the County’s Solid Waste Ordinance violated the dormant Commerce Clause of the United States Constitution, and that the July 9, 2012 Board action deprived Sweet City of equal protection under both the United States and Georgia Constitutions; declaring that Sweet City has a vested right to have the County issue "a letter of zoning and development compliance and consistency with the County’s solid Waste Management Plan"; declaring that Sweet City has a vested right to develop the property as a landfill free of any zoning and land use restrictions; and, granting a temporary injunction against the County from enacting or enforcing ordinances so as to interfere with Sweet City’s development. The superior court also denied the County’s motion to dismiss, rejecting the County’s argument that Sweet City had to exhaust its administrative remedies prior to filing suit.

Elbert County v. Sweet City Landfill , 297 Ga. 429, 431, 774 S.E.2d 658 (2015).

After granting Elbert County’s application for discretionary appeal, the Supreme Court of Georgia held that the trial court did not err in ruling that the Board of Commissioners of Elbert County (the "Board") took no action on Sweet City’s application for a special use permit, but did err in rejecting Elbert County’s argument that the trial court must dismiss the matter due to Sweet City’s failure to exhaust its administrative remedies. Id. at 432-433 (1), 774 S.E.2d 658. The Supreme Court further held that based on Sweet City’s failure to obtain a final decision from the Board, the trial court erred in reaching the merits of Sweet City’s claim of a vested right in the issuance of a letter of compliance and in addressing Sweet City’s equal protection claim. Id. at 433-434 (1), 774 S.E.2d 658. With respect to Sweet City’s facial challenge to the constitutionality of Elbert County’s solid waste ordinance, the Supreme Court held that the claim was not subject to an exhaustion requirement, but that the trial court had erred in failing to apply the balancing test set forth in Pike v. Bruce Church, Inc. , 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970), and remanded the case for it to do so. Elbert County , 297 Ga. at 434-436 (2), 774 S.E.2d 658.

After the case was remanded to the trial court, Elbert County repealed and replaced the challenged ordinance and filed a motion to dismiss, contending that the amended ordinance rendered the remaining claim, the facial challenge to the ordinance, moot. Following a hearing, the trial court granted Elbert County’s motion. Sweet City appeals this ruling, contending that the trial court erred in dismissing the declaratory judgment action based on mootness, failing to analyze Sweet City’s vested rights, and failing to follow the direction of the Georgia Supreme Court on remand.

1. We must first reconsider our determination that an application for discretionary appeal was required in this case. Even with recent authority from the Georgia Supreme Court, determining whether a direct appeal or a discretionary appeal is appropriate in a case involving zoning issues requires us to a navigate a tortuous path.

Pursuant to OCGA § 5-6-35 (a) (1), appeals from decisions of the superior courts reviewing decisions of state and local administrative agencies must be made by filing an application for discretionary appeal. In 1989, the Georgia Supreme Court held that "all zoning cases appealed either to the Court of Appeals or the Supreme Court of Georgia must hereafter come by application." Trend Dev. Corp. v. Douglas County , 259 Ga. 425, 426 (1), 383 S.E.2d 123 (1989). This rule also applied to appeals from a trial court’s ruling on a challenge to the constitutionality of a zoning ordinance on its face. See O.S. Advertising Co. of Ga. v. Rubin , 267 Ga. 723, 725 (2), 482 S.E.2d 295 (1997). In Schumacher v. City of Roswell , 301 Ga. 635, 636-638 (1), 803 S.E.2d 66 (2017), the Georgia Supreme Court determined that a stand-alone lawsuit challenging an ordinance as facially invalid is not a "zoning case" under Trend and Rubin and therefore does not require a discretionary application. The Schumacher Court did not overrule Trend or Rubin , instead concluding that "a careful reading of [ Trend and Rubin ] 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." Id. at 638 (2), 803 S.E.2d 66.

The issue in Schumacher was whether a city council’s adoption of a new zoning code was a "decision" of a "local administrative agency." Id. at 637 (1), 803 S.E.2d 66. A "decision," as the term is used in OCGA § 5-6-35 (a) (1), refers to an administrative determination of an adjudicative, as opposed to an executive or legislative, nature. State v. Intl. Keystone Knights of the Ku Klux Klan , 299 Ga. 392, 403-404 (4) (a), 788 S.E.2d 455 (2016). The distinction between an adjudicative determination and a legislative determination has been defined as follows:

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.

(Citations and punctuation omitted.) Id. at 401 (4) (a), 788 S.E.2d 455. In Schumacher , because the lawsuit only challenged the city council’s adoption of a development code and sought no individualized zoning-related relief, and the adoption of the new development code was prospective in nature, the majority determined that the adoption of the new code was an exercise of legislative power and therefore was not an adjudicative "decision" under the statute. Schumacher , 301 Ga. at 637 (1), 803 S.E.2d 66.

The Court in Schumacher further determined that the city council was not acting as an "administrative agency," noting that "[t]he enactment of ordinances is at the core of the City Council’s legislative functions." Id. at 638 (1), 803 S.E.2d 66.¹ Because there was not a "decision" by an "administrative agenc[y]" as required by OCGA § 5-6-35 (a) (1), the Court held that an application for discretionary appeal was not required, id., and that Trend and Rubin did not apply. Id. at 638-639 (2), 803 S.E.2d 66.

Another twist in the process of determining whether a case is a "zoning case" is that we must look not only to the issue on appeal, but to the issues raised and decided in the case below. See Schumacher , 301 Ga. at 639 (2), 803 S.E.2d 66. Although the issue on appeal in Rubin was whether a sign ordinance was unconstitutional, the Court in Schumacher noted that " Rubin still involved an appeal from an administrative agency’s denial of an individual variance request" because appeal was taken from the denial of a landowner’s application for a sign ordinance variance. Id. Thus, Rubin was a "zoning case" because it initially involved an individualized determination by an "administrative agency" as to the zoning or permitted use of a particular parcel of land. Id.

Applying these principles to this case, we conclude that this is not a "zoning case" that requires an application for discretionary appeal. When the Georgia Supreme Court remanded this case to the superior court, the only claim remaining was Sweet City’s facial challenge to the constitutionality of Elbert County’s solid waste ordinance under the dormant Commerce Clause of the United States Constitution. As in Schumacher , the adoption of the ordinance was an exercise of legislative...