Administrative Law - Martin M. Wilson and Jennifer A. Blackburn

• Publication year: 2007

Administrative Lawby Martin M. Wilson^* and Jennifer A. Blackburn^**

I. Introduction and Overview

This Article surveys administrative law developments in appellate cases from June 1, 2006 through May 31, 2007. Only cases from the Georgia Supreme Court and the Georgia Court of Appeals have been reviewed. As compared to prior years, the number of cases in which administrative law principles played a significant role showed no upward spike. There are many other topics that concern elements of administra-tive law, but this Article does not address cases containing those specific subject matter topics. There is likely some duplication of cases among the subject matter topics, but only the administrative law elements are emphasized in this Article.

This Article begins with cases that concern standing to initiate certain types of proceedings and then turns to the defenses and immunities discussed in administrative law cases. Standards of review and the effects of agency actions come next, and the last substantive topic discussed is the ever-present question of a direct or discretionary appeal. This Article finishes up with a recounting of the acts enacted by the Georgia General Assembly in its 2007 regular session that affect the composition and powers of administrative agencies.

II. Standing to Initiate Proceedings

During this year's survey period, Georgia courts addressed the issue of standing in two cases, one of which was also discussed in last year's article.¹ In Massey v. Butts County,² the Georgia Supreme Court held that the plaintiff lacked standing to challenge the zoning decision because he failed to demonstrate special damages.³ The plaintiff, a property owner in Butts County, brought suit against Butts County, the Butts County Board of Zoning Appeals, and a neighboring property owner. The plaintiff alleged that a barn constructed on the neighbor's property violated the County's zoning ordinance. The trial court granted the neighbor's motion to dismiss for lack of standing, and the court of appeals affirmed.⁴ on appeal to the supreme court, the court recognized two lines of cases that addressed whether a property owner must show special damages to challenge a zoning action on a neighboring property within the same municipality.⁵ The plaintiff relied upon a string of cases that originated in Snow v. Johnston,⁶ in which the supreme court held that a property owner has standing to seek injunctive relief from a zoning action and does not need to show special damages when he or she resides in a municipality with a zoning ordinance that restricts property use to residential purposes.⁷ The defendants, however, cited Tate v. Step-hens,⁸ in which the supreme court held that a property owner must demonstrate special damages in order to seek injunctive relief from a zoning determination.⁹

In 1946 the General Assembly passed comprehensive zoning and planning legislation for municipalities, which provided for judicial review of a municipality's board of zoning adjustments decision to "[a]ny person or persons who may have a substantial interest in any decision of the board of adjustment."¹⁰ Subsequently, the General Assembly also allowed "[a]ny person or persons severally or jointly aggrieved" the right to appeal the decisions of the board of zoning appeals.¹¹ While the legislature's "'substantial interest-aggrieved citizen'" test was only statutorily applicable to judicial appeals from decisions of local boards of adjustment or zoning appeals, the supreme court adopted this standard for judicial appeals from zoning decisions rendered by all local governing authorities.¹² Because Snow was decided prior to the 1946 zoning legislation, the court in Massey held that it was no longer controlling precedent.¹³ Therefore, the supreme court held that Tate, which was decided after the zoning legislation was enacted, controlled and required the plaintiff to establish a substantial interest in the zoning decision and show special damages in order to have standing to appeal.¹⁴

In a matter of first impression, the court of appeals determined that a devisee's inchoate interest in real property may constitute a "substantial interest" and therefore allow standing to challenge a zoning decision on neighboring property.¹⁵ In Hollberg v. Spalding County,¹⁶ the appellant challenged the Spalding County Board of Commissioners' grant of a special exception permit to rezone an adjacent parcel.¹⁷ In order to challenge a zoning decision, a neighboring property owner must establish standing under the "substantial interest-aggrieved citizen" test, which requires (1) evidence of a substantial interest in the zoning decision and (2) evidence of special damages not common to all similarly situated property owners.¹⁸ The neighboring property, the property under which the appellant sought to establish standing, was devised to the appellant as a life estate in his mother's will. However, when the board of commissioners approved the special exception permit on September 23, 2004, the will was not yet settled. The appellees argued that the appellant did not have standing to challenge the special exception because the appellant did not hold title to the property at the time the special exception was granted.¹⁹ In deciding if the appellant established standing, the court applied the substantial interest-aggrieved citizen test.²⁰

For the first prong of the test, the appellant asserted that he had a substantial interest in the zoning decision by virtue of being a devisee in his mother's will, which included the property adjacent to the rezoned property.²¹ The court noted, "Whether a devisee of real property has a substantial interest in a zoning decision so as to satisfy the first prong of the test is a matter of first impression in [Georgia]."²² The court further noted that the probate rules establish that "'upon the death of the owner of realty the devisees have an inchoate title in the realty, which is perfected when the executor assents to the devise.'"²³ The court finally noted that this assent "'relates back to the date of death of the testator.'"²⁴ Thus, the devise of the life estate, vested to the appellant, relates back to the date of his mother's death, which was prior to the approval of the special exception.²⁵ Therefore, the court held that the appellant's inchoate title was sufficient to give him a substantial interest in the grant of the special exception.²⁶

The second prong of the test required the appellant to show that "'his property will suffer special damage as a result of the decision complained of rather than merely some damage which is common to all property owners similarly situated.'"²⁷ Expert testimony in the record provided that the value of the land appreciated considerably since the date the special exception was granted.²⁸ Based on these findings, the court affirmed the trial court's holding that the appellant failed to establish standing under the substantial interest-aggrieved citizen test.²⁹

III. Agency Defenses and Immunities

The next three cases examine various agency defenses and immunities. In Decatur County v. Bainbridge Post Searchlight, Inc.,³⁰ the supreme court held that the attorney-client privilege exception to the Georgia Open Records Act³¹ ("ORA") did not protect the commissioners' executive session from a newspaper's open records request.³² The Bainbridge Post Searchlight (the "newspaper") challenged the commissioners' denial of its open records request for responses to grand jury presentments that were reviewed in an executive session of the commissioners' regularly scheduled meeting.³³

Official Code of Georgia Annotated ("O.C.G.A.") section 50-14-1(b)³⁴ states that "[e]xcept as otherwise provided by law, all meetings [conducted by a public agency] shall be open to the public."³⁵ However, O.C.G.A. section 50-14-2(1)³⁶ provides an exception for the attorney-client privilege, stating that a meeting "may be closed in order to consult and meet with legal counsel pertaining to pending or potential litiga-tion."³⁷ The court warned that the attorney-client privilege exception must be narrowly construed in order to uphold the legislative intent of the ORA, which is to require public agencies to conduct open meet-ings.³⁸ Because there was no "'pending or potential litigation,'" but only proposed grand jury presentments, the supreme court affirmed the trial court's holding that the attorney-client privilege did not apply to the executive session.³⁹

In a forceful dissent authored by Justice Melton and joined by Justice Benham, Justice Melton rejected the majority's holding that the information at issue was not protected by the attorney-client privi-lege.⁴⁰ Unlike the majority, the dissent did not classify the presentments as "proposed."⁴¹ The presentments were prepared by the grand jury and presented to the commissioners for review and response. The responses would likely be used to determine the charges the grand jury would pursue against the commissioners.⁴² The acts of reviewing and responding to the presentments were "directly analogous to discovery in a pending suit."⁴³ Accordingly, the dissent argued that the attorney-client privilege protected the presentments and allowed for a closed meeting.⁴⁴

In Reece v. Turner,⁴⁵ the court examined whether the appellants, as employees of the Cobb County public school system, were entitled to official immunity as provided in the Georgia constitution.⁴⁶ The appellee filed a damages claim against the appellants—all of whom were employees in supervising roles at Pebblebrook High School ("Pebble-brook")—as a result of a nonparty's, Virgil Spaur, sexual molestation of the appellee.⁴⁷ The court of appeals held that the appellants were entitled to official immunity on the damages claim, thereby reversing the trial court's holding.⁴⁸

Georgia law provides that a public officer may be personally liable only for a "ministerial act" negligently performed or a "discretionary act"...