Zoning and Land Use Law
| Publication year | 2020 |
Zoning and Land Use Law
Newton M. Galloway
Steven L. Jones
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With the close of the survey period for the seventy-first (71st) volume of the Mercer Law Review, development throughout the State of Georgia continued to thrive. While traditional brick-and-mortar commercial development is evolving, residential and industrial development remains steady. As a result, zoning challenges continued to present issues for resolution by Georgia's appellate courts. This Article identifies important zoning and land use decisions of the Georgia Supreme court (supreme court) and Georgia court of Appeals (court of appeals) issued between June 1, 2018 and May 31, 2019.1
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Generally, the decisions by Georgia's appellate courts in zoning related cases continued the transformation of legislative "zoning decisions" defined by Georgia's Zoning Procedures Law (ZPL)2 into quasi-judicial, administrative actions, imposing greater procedural and evidentiary requirements for zoning hearings and superior court appeals. However, with respect to quasi-judicial zoning decisions, the appellate courts applied the "any evidence" rule to give greater weight to lay witness opponents and greater deference to local governments. As discussed herein, these simultaneous trends are contradictory and problematic because zoning hearings have never been conducted in a manner comparable to administrative law proceedings. As a result, notable cases decided during the survey period were delivered by splintered divisions of the court of appeals, resulting in only physical precedents.3 To begin, this Article addresses important legislative developments related to the application of sovereign immunity to actions brought against local government officials in zoning decisions.
A. Sovereign Immunity: Lathrop v. Deal, HB 311 and Governor Kemp's Veto
In Lathrop v. Deal (discussed in last year's survey),4 a super majority of the Georgia Supreme Court held that sovereign immunity extends to constitutionally-based claims barring all causes of action against the state "including suits for injunctive and declaratory relief from the enforcement of allegedly unconstitutional laws" and bars actions against local government officials acting within the authority of their official capacities.5 Applied to a zoning case, the rule from Lathrop bars actions against city and county officials acting within the authority of their official positions, but it allows a claim to proceed against officials in their individual capacities. 6
The supreme court in Lathrop reiterated that sovereign immunity may only be waived by the legislature or constitutional amendment.7 So, the legislature responded in 2019 when both chambers of the
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Georgia General Assembly passed House Bill 3118 with zero "Nay" votes.9 HB 311 approved a waiver of sovereign immunity for any claim seeking declaratory or injunctive relief in an action against a state or local government official or employee, in their official capacity, challenging enforcement of an unconstitutional state statute or an unconstitutional or illegal local government ordinance or action.10
HB 311's waiver of sovereign immunity was strictly limited to claims such as those raised in Lathrop and which are typically asserted in a zoning case against county commissioners or municipal council members alleging that a zoning ordinance or decision violates the applicant(s)'s or owner(s)'s constitutional rights. Above all, HB 311 granted Georgia citizens the ability to address unconstitutional laws by seeking declaratory or injunctive relief against state and local government officials in their official capacities.11 But, Governor Kemp vetoed HB 311; therefore, without a sovereign immunity waiver from the General Assembly, the issues unresolved after the decision in Lathrop continue.12
B. Expansion of City of Cumming v. Flowers: York v. Athens College of Ministry, Inc.
In City of Cumming v. Flowers,13 the Georgia Supreme Court held that (regardless of the appeal method prescribed in the local government's zoning ordinance) a "quasi-judicial" decision by a local government official, board, or governing authority must be appealed by writ of certiorari to the superior court.14 A variance was at issue in Flowers, but dicta therein suggested that the supreme court might apply its holding to an appeal of a decision involving "special approval," known also as a special exception, special permit, special use permit, or conditional use (collectively, SUP).15 The court of appeals applied the holding of Flowers in York v. Athens College of Ministry, Inc.16
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A SUP allows land uses that are not permitted within a zoning district as a matter of right but may be compatible with permitted uses allowed in the zoning district at a specific location.17 In other words, "the ordinance provides that [the SUP] shall be allowed only upon the condition that it be approved by the appropriate governmental body" pursuant to analysis of approval criteria set out in the ordinance.18 ZPL specifically identifies "[t]he grant of a permit relating to a special use of property"—in other words, approval of a SUP—as a "final legislative" zoning decision.19
The distinction between a legislative local government decision and a quasi-judicial decision is critically important. A legislative decision is a "general inquiry" not bound to specific circumstances, facts, people, or property; rather, it "'results in a rule of law or course of policy that will apply in the future.'"20 An appeal of a legislative zoning decision is direct, and the standard of review is de novo.21 Therefore, the petitioner (usually, the zoning applicant whose request was denied) may introduce new evidence, including expert testimony, arguments, and issues to the superior court that were not presented in the zoning hearing below.22
In contrast, a quasi-judicial decision applies facts to criteria set forth in black-letter law and results in the establishment of rights and obligations or resolves specific disputes.23 A quasi-judicial decision "'is tightly controlled by the ordinance.'"24 A quasi-judicial decision is appealed by writ of certiorari from a decision of an inferior tribunal (in zoning cases, usually the local governing body), and the superior court sits as an appellate judiciary.25 The "any evidence" standard applies, limiting the superior court's review to the facts, evidence, and issues raised before the local governmental body or official.26
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Adoption of a zoning ordinance and map have long been held to be legislative.27 The rezoning of a specific parcel has also been deemed legislative because approval of rezoning amends the zoning map, which is part of the zoning ordinance.28 Decisions on variances, plat approval (preliminary and final), and approval of building and construction permits have historically been deemed quasi-judicial because they do not amend the local government's zoning ordinance. 29
Before 1998, SUPs were not included within the definition of a "zoning decision" under ZPL and considered pursuant to a process that was like a variance—more quasi-judicial than legislative, to which the "any evidence" standard applied.30 In 1998, ZPL was amended and redefined "zoning decision" to include SUPs, as follows:
[F]inal legislative action by a local government which results in:
(A) The adoption of a zoning ordinance;
(B) The adoption of an amendment to a zoning ordinance which changes the text of the zoning ordinance;
(C) The adoption of an amendment to a zoning ordinance which rezones property from one zoning classification to another;
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(D) The adoption of an amendment to a zoning ordinance by a municipal local government which zones property to be annexed into the municipality; or
(E) The grant of a permit relating to a special use of property.31
In fact, the amicus curiae brief in York pointed out that the 1998 amendment to ZPL classified special exceptions as legislative, and ZPL makes it clear that approval of a SUP is a "final legislative action."32 After 1998, cases continued to treat SUP decisions as quasi-judicial.33 Georgia's appellate courts, however, did not attempt to reconcile ZPL until the decision in York.
In York, Athens College of Ministry, Inc. (ACM) applied for a SUP to build a 100 plus acre collegiate seminary. The local government approved it with conditions. Prior to the decision, neighborhood opponents (the opponents) who objected, by letter, to the approval of the SUP, appealed to superior court by writ of certiorari. In the Oconee County Superior Court, ACM and the local government objected to the opponents standing to challenge SUP approval for the first time.34
A majority of the panel held that granting the SUP was a quasi-judicial decision because the local government was required to apply criteria of approval for the SUP set out in the zoning ordinance.35 Because approval of ACM's SUP was quasi-judicial, the superior court's review was limited to the "any evidence" standard.36 Below, neither
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ACM nor the local government challenged the opponents' standing when confronted with their letter of opposition.37 Having failed to challenge the opponents' standing below, ACM and the County could not challenge the opponents' standing for the first time on appeal.38 Though York involved a standing challenge, its rationale (if expanded) also requires substantive issues to be raised, and evidence to be presented thereon to the local government during the zoning hearing or to be precluded from consideration on appeal by the superior court.39
The majority in York gave no credence to the ordinance's characterization of the decision because "'substance matters far more than form, and the courts need not capitulate to the label that a government body places on its action.'"40 To determine whether a...
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