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City of Cumming v. Flowers

Supreme Court of Georgia

March 6, 2017

CITY OF CUMMING et al.
v.
FLOWERS et al. KERLEY FAMILY HOMES LLC et al.
v.
FLOWERS et al.

          NAHMIAS, Justice.

         This case involves the procedure by which a local zoning board's quasi-judicial decision on a variance request may be appealed to the superior court. Kerley Family Homes, LLC ("Kerley") was granted a variance by the City of Cumming's Board of Zoning Appeals ("BZA"). Neighboring homeowners aggrieved by the variance sought to appeal the BZA's decision by filing a complaint seeking a writ of mandamus and an injunction in the superior court. The defendants argued that they were entitled to summary judgment against the homeowners because the zoning variance decision was a quasi-judicial decision that can be challenged in the superior court only by a petition for certiorari under OCGA § 5-4-1. They were right, and we therefore reverse the trial court's denial of summary judgment. In doing so, we disapprove cases from this Court and the Court of Appeals - the leading one being Jackson v. Spalding County, 265 Ga. 792 (462 S.E.2d 361) (1995) - to the extent that they say that when the local zoning ordinance does not provide for a petition for certiorari, mandamus is the proper way to appeal a quasi-judicial variance decision. That line of procedural precedent was founded on unsound reasoning, and we now abandon it in order to ensure that quasi-judicial zoning decisions are appealed the same way under OCGA § 5-4-1 throughout the State, just as § 5-4-1 is consistently applied to other quasi-judicial decisions of local entities.

         1. Kerley Family Homes, LLC, was building townhouses on property it owned in Cumming. Acknowledging that its construction plans violated the requirement of the City's Zoning Ordinance that buildings be set back at least 20 feet from the adjoining property line, Kerley filed a variance application to change the required setback for buildings on some of its property. Kerley then amended that application, asking to change the required setback to 5 feet for the lots that were already built (lots 38-42) and 15 feet for the lots that had not yet been built (lots 21-37). Kerley represented that it was constructing the buildings too close to the adjoining property because the surveyor had made a mistake.

         On March 17, 2015, the City's Planning Board held a public hearing and recommended denial of the original variance plan submitted by Kerley. Kerley appealed that decision to the City's Board of Zoning Appeals, which consists of the Mayor and City Council. On April 21, 2015, the BZA held a public hearing on the variance request. The City's planning director advised the BZA that lots 38-42 were actually still under construction, and that Kerley had modified its request to ask for an 11-foot setback for lots 38-42 and had agreed to demolish the townhouse being built on lot 42 and replace it with one conforming to the 20-foot setback requirement. The planning director noted that the Planning Board had not formally considered the revised plan but that, after review, the members now individually recommended approving the revised plan. After hearing from Kerley's lawyer and two representatives of homeowners in the adjoining neighborhood, the BZA voted to grant the variance application with several conditions, including the removal of lots 21-37 from the request and the demolition of the townhouse on lot 42.

         On May 21, 2015, neighboring homeowners Robert G. Flowers and Kathleen Donovan along with Castleberry Homeowners Association Two, Inc. (collectively, "the Homeowners") filed a complaint in Forsyth County Superior Court against the City, the individual members of the City Council, the Mayor, and the "City Council and/or Members of Board of Zoning Appeals" (collectively, "the City defendants"), as well as "Kerley Family Homes, LLC and Kerley Family Homes at HR, LLC" (collectively, "the Kerley defendants"). The Homeowners sought to appeal the grant of the variance on the grounds that it was a gross abuse of discretion, arbitrary and capricious, erroneous, and ultra vires. The complaint requested a writ of mandamus to "compel[] the Defendants Mayor and City Council and/or the board of zoning appeals to comply with the law" as well as "an injunction restraining and enjoining Defendants from violating the Zoning Ordinance."

         The City and Kerley defendants both filed answers, and the City defendants then filed a motion to dismiss and a supporting brief, to which they attached portions of the City ordinances, including the Zoning Ordinance. The City defendants argued that the Homeowners' complaint should be dismissed because a challenge to the variance decision was required to come to the superior court by a petition for certiorari under OCGA § 5-4-1. The Kerley defendants joined the motion to dismiss.

         The superior court held a hearing on the motion to dismiss, at which the parties agreed to treat it as a motion for summary judgment and thus allow the court to consider the City ordinances attached to the filings. On March 29, 2016, the superior court denied summary judgment. The court then granted both sets of defendants' requests for certificates of immediate review, and on May 16, the City defendants and Kerley defendants filed applications for interlocutory appeal in the Court of Appeals, which were transferred to this Court because the cases involve an issue of mandamus relief and the applications were filed before January 1, 2017.[1] We granted the applications on June 22, 2016, and the City defendants and Kerley defendants both filed timely notices of appeal. The City defendants' case was orally argued on November 7, 2016, and the Kerley defendants' case was submitted for decision on the briefs. The two cases, which raise the same issue, have been consolidated for decision in this opinion.

         2. In ruling that the Homeowners could proceed on their petition for mandamus, the superior court relied on the procedural direction from this Court that "where the zoning ordinance does not provide a means of appeal from the denial of a request for a variance, the landowner travels to superior court by writ of mandamus." Shockley v. Fayette County, 260 Ga. 489, 490-491 (396 S.E.2d 883) (1990). Although the concept that the form of appeal of certain zoning decisions may depend on the local ordinance has been mentioned in several cases from this Court and the Court of Appeals, as discussed below, its foremost articulation in the context of a quasi-judicial zoning variance decision was in Jackson v. Spalding County, 265 Ga. 792 (462 S.E.2d 361) (1995). In Jackson, the local zoning ordinance provided for certiorari and the appealing parties had filed a petition for certiorari; the dispositive issue in the case was whether certiorari under OCGA § 5-4-1 was ever available to challenge a zoning variance decision. This Court clearly held - for the first time - that a zoning variance decision was quasi-judicial and thus subject to certiorari review under § 5-4-1. See Jackson, 265 Ga. at 793-794. But the Court also said that "[w]hen the zoning ordinance fails to prescribe a method of judicial review, " mandamus is the proper method to appeal a variance decision. Id. at 793. It is this part of Jackson, which we will refer to as "the local-ordinance requirement, " that the City and Kerley defendants have asked us to reconsider and reject.

         3. Before we grapple with the viability of the local-ordinance requirement, we must determine whether it applies in this case. Specifically, we must determine if the BZA's decision to grant a variance to Kerley was, like the variance decision in Jackson, quasi-judicial. If it was not, then Jackson, which rests on the quasi-judicial nature of the decision, is inapplicable, and a petition for certiorari would not be available regardless of the local ordinance. OCGA § 5-4-1 (a) says:

The writ of certiorari shall lie for the correction of errors committed by any inferior judicatory or any person exercising judicial powers, including the judge of the probate court, except in cases touching the probate of wills, granting letters testamentary, and of administration.

         Thus, "[c]ertiorari is not an appropriate remedy to review or obtain relief from the judgment, decision or action of an inferior judicatory or body rendered in the exercise of legislative, executive, or ministerial functions, as opposed to judicial or quasi-judicial powers." Presnell v. McCollum, 112 Ga.App. 579, 579 (145 S.E.2d 770) (1965).

         No party here challenges Jackson's main holding - that the variance decision at issue there was quasi-judicial. See 265 Ga. at 794-795. Applying Jackson's reasoning on that point, it is clear that the BZA's variance decision in this case was also quasi-judicial. Pursuant to the City's Zoning Ordinance, in ruling on Kerley's requested variance, the BZA (composed of the Mayor and the City Council) was required to consider "whether the facts applying to a specific piece of property warrant relief from zoning under the standards set in the [local] ordinance." Id. at 793.[2] Thus, as in Jackson, the variance decision required the zoning board to "determine[] the facts and appl[y] the ordinance's legal standards to them, " which is a "decision-making process . . . akin to a judicial act." Id. at 794. In addition, when a variance issue is brought to the BZA, §§ 113-48 and 113-49 of the Zoning Ordinance require that the board hold a hearing that is open to the public, give "due notice to the aggrieved party" of the hearing, and inform all parties of its decision in writing within a reasonable time. At the hearing in this case, the BZA heard from parties for and against granting the variance. See Jackson, 265 Ga. at 794-795.

         In sum, the BZA's discretion was "'tightly controlled by the ordinance, '" RCG Properties, LLC v. City of Atlanta Bd. of Zoning Adjustment, 260 Ga.App. 355, 361 (579 S.E.2d 782) (2003) (citation omitted), and the BZA's decision was "immediate in application, specific in application, and . . . involve[d] an assessment of 'facts about the parties and their activities, businesses, and properties.'" State v. Intl. Keystone Knights of the Ku Klux Klan, 299 Ga. 392, 401 (788 S.E.2d 455) (2016) (citations omitted). See also Bentley v. Chastain, 242 Ga. 348, 350 (249 S.E.2d 38) (1978) (explaining that when administrative agencies "'are called upon to make factual determinations and thus adjudicate, . . . they are . . . considered to be acting in a quasi-judicial capacity'" (citation omitted)). Accordingly, the variance decision was quasi- judicial.[3]

         The Homeowners contend that Kerley's requested variance did not satisfy a number of the conditions required by the Zoning Ordinance. In particular, pointing to Kerley's admission that its failure to meet the setback requirement was due to a surveyor's mistake, the Homeowners assert that the requirement that the special circumstances necessitating the variance were "not the result of the actions of the applicant" was not fulfilled. The Homeowners argue that even though the Mayor and the City Council were purporting to act as the BZA, because they disregarded these required conditions, they actually exercised their legislative power by granting a variance that was not permitted under the current zoning regulations. The BZA may well have abused its discretion in concluding that all of the conditions were met and thus in granting the variance to Kerley, but that is a question of the correctness of the BZA's decision, not its nature. A quasi-judicial decision does not become a legislative decision simply because it was wrong. See Keystone Knights, 299 Ga. at 401 ("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." (citations omitted)).

         4. Once we have determined that the BZA's decision to grant Kerley a variance was quasi-judicial, the remaining analysis of this case should be straightforward. As Jackson held, an administrative zoning body's quasi-judicial decision comes within the scope of OCGA § 5-4-1 and thus is subject to appeal to the superior court by petition for certiorari. See Jackson, 265 Ga. at 793-794. And as this Court has often held, in conformance with the text of the mandamus statute, "'if there be a specific remedy by certiorari, the right of mandamus will not lie.'" City of Statesboro v. Dickens, 293 Ga. 540, 542 (748 S.E.2d 397) (2013) (quoting McClung v. Richardson, 232 Ga. 530, 531 (207 S.E.2d 472) (1974)). See also OCGA § 9-6-20 (explaining that "the writ of mandamus may issue to compel a due performance if there is no other specific legal remedy for the legal rights"). Because the Homeowners here sought review in the superior court by mandamus rather than certiorari, their mandamus claim was improper and the defendants should have been granted summary judgment.

         The local-ordinance requirement, however, directs a different analysis, saying that the BZA's quasi-judicial decision may be appealed by certiorari only if the City's Zoning Ordinance so provides. See Jackson, 265 Ga. at 793. It is this holding of Jackson that the City and Kerley defendants contend is unfounded and ask us to disapprove.

         The hurdle the defendants must clear is the doctrine of stare decisis, but that is not an insurmountable hurdle.

Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process . . . . Nevertheless, when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent . . . . Stare decisis is not an inexorable command; rather, it is a principle of policy and not a mechanical formula of adherence to the latest decision . . . . In considering whether to reexamine a prior erroneous holding, we must balance the importance of having the question decided against the importance of having it decided right. In doing so, we consider factors such as the antiquity of the precedent, the reliance interests at stake, the workability of the decision, and, most importantly, the soundness of its reasoning.

Woodard v. State, 296 Ga. 803, 812 (771 S.E.2d 362) (2015) (emphasis in original; citations and quotation marks omitted). See also State v. Hudson, 293 Ga. 656, 661 (748 S.E.2d 910) (2013); State v. Jackson, 287 Ga. 646, 647 (697 S.E.2d 757) (2010). An evaluation of these factors weighs ...


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