JESTER, et al.
RED ALLIGATOR, LLC.
MCFADDEN, P. J., BRANCH and BETHEL, JJ.
County and its Board of Commissioners ("the
Commission") appeal from an order of the DeKalb County
Superior Court entering judgment against them and in favor of
Red Alligator, LLC, on Red Alligator's complaint for
injunctive and declaratory relief. The judgment prevents the
Commission from rescinding or otherwise declaring invalid its
prior approval of both a rezoning application and an
application for a Special Land Use Permit ("SLUP")
filed by Red Alligator. The County asserts that Red
Alligator's voluntary withdrawal of both the rezoning and
the SLUP applications before the Commission had the
opportunity to take a "valid" vote on them rendered
the current action moot, and that the trial court erred when
it found to the contrary. Additionally, the County argues
that the trial court erred in granting Red Alligator's
request for a declaratory judgment that the Commission's
approval of both the rezoning and SLUP applications was
valid. Finally, the County contends that because the SLUP
allows Red Alligator to have more Class B gaming machines on
its property than are allowed under state law, the trial
court erred by enjoining the Commission from taking any
additional action with respect to the SLUP. For reasons
explained more fully below, we find that this action was not
mooted by Red Alligator's withdrawal of the zoning
applications at issue before the Commission had the
opportunity to vote on them a second time. We further find,
however, that neither the rezoning petition nor the SLUP
application was properly approved and that they were
therefore void ab initio. For that reason, we reverse the
judgment of the trial court and remand for entry of judgment
in favor of the County.
relevant facts are undisputed and this appeal presents only a
question of law. Accordingly, our review of "both the
record and the decision of the court below" is de novo.
Johnson v. Allied Recycling, 323 Ga.App. 427, 427
(746 S.E.2d 728) (2013) (citation and punctuation omitted).
Ward Courtesy Rule.
current form of DeKalb County government was established by
an act passed by the General Assembly in 1981 and
subsequently approved by the electorate of DeKalb County in
1982 (the "Organizational Act"). See 1981 Ga. L.,
p. 4304-4331. Under the Organizational Act, the county's
governing authority consists of a seven-member Board of
Commissioners and a Chief Executive Officer, with all
commissioners and the CEO being elected. Id. at p.
4305, 4307-4308, § 1 (Organizational Act at §§
1(b), 2 (c), 5 (a)). As originally enacted, the
Organizational Act divided the county into five geographic
Commission districts with residents of each district electing
a Commission member to represent them. Id. at p.
4305-4307 (Organizational Act at §§ 2(b), (c)). The
remaining two commissioners were elected at large.
9 (a) (10) of the Organizational Act vests the Commission
with the power and authority
[t]o regulate land use by the adoption of a comprehensive
development plan and by the adoption of other planning and
zoning ordinances which relate reasonably to the public
health, safety, morality [, ] and general welfare of the
county and its citizens; provided, however, no planning
or zoning ordinance shall become law unless approved by the
member of the Commission representing the district in which
the subject property is located, or by one of the members of
the Commission elected from the county at large.
Id. at p. 4311, § 1 (Organizational Act at
§9 (a) (10)) (emphasis supplied). The above-emphasized
language is known as the "Ward Courtesy Rule."
1992, the Organizational Act was amended by an act passed by
the General Assembly and approved by the DeKalb County voters
(the "1992 Amendment"). 92 Ga. L., p. 6566-6583.
Under the 1992 Amendment, the county is divided into five
geographic Commission districts and also into two geographic
Commission "super districts." Id. at
p. 6567, § 1. Commissioners elected from the super
districts replaced the two at-large commissioners provided
for in the original Organizational Act. Id.
the 1992 Amendment eliminated at-large commissioners, it did
not amend the Ward Courtesy Rule. The 1992 Amendment did
provide, however, that "[a]ll laws and parts of laws in
conflict with this Act are repealed." Id. at p.
6882, §6. Relying on this language, we have previously
construed the reference to at-large commissioners found in
the Ward Courtesy Rule as having been repealed by the 1992
Amendment. Rock v. Head, 254 Ga.App. 382, 385 (2)
(562 S.E.2d 768) (2002). Rock held that with the
"at-large" language repealed, "no zoning
changes can be approved without the vote of a commissioner in
whose district the property is located." Id.
Accordingly, to become law, a zoning ordinance must receive
an affirmative vote from either the district or super
district commissioner in whose district the property is
Zoning Applications at Issue.
Alligator is a limited liability company incorporated under
the Tunica-Biloxi Indian Tribe that owns a 10.15 acre parcel
of real property in DeKalb County. This property is located
in Commission district 5 and in Commission super district 7.
Red Alligator is seeking to develop and operate a
"mixed-use, luxury resort" on the property that
would include a motel, restaurants, retail shops, and an
indoor "amusement area" for adults. This amusement
area would include, among other things, a number of Class B
coin-operated amusement machines.
2014, Red Alligator filed two separate applications with the
DeKalb County Planning Department. One of these was an
application for a SLUP to allow Red Alligator to operate a
late-night establishment on the property, while the second
application sought to have the property re-zoned from
Office-Commercial-Residential ("OCR") to C-l (local
commercial). The Commission voted on both of these
applications at its December 16, 2014 meeting. At that time,
Lee May was the commissioner representing district 5 and Stan
Watson was the commissioner representing super district 7.
Also at that time, however, May had been appointed to serve
as the interim County CEO, and he therefore could not
participate as a member of the Commission. As a result of
these circumstances, May did not vote on the two
applications. Additionally, Watson recused himself from both
votes. The remaining five members of the
Commission voted unanimously to approve both the rezoning
petition and the SLUP application. The SLUP application was
approved with conditions recommended by the county's
zoning staff, with one of those conditions being "[t]he
expansion of indoor amusement beyond 9 machines to be limited
to no more than 425 virtual reality, coin operated amusement
machines and/or simulators."
February 2015, the Commission voted to acknowledge that its
approvals of the rezoning petition and the SLUP application
were invalid, as neither application had received an
affirmative vote from the commissioner for either district 5
or super district 7. As a result of this decision, Red
Alligator filed the current lawsuit in March 2015,
seeking a declaratory judgment that neither the rezoning nor
the SLUP applications was subject to the Ward Courtesy Rule
and that the approval of both was therefore valid; an
injunction barring the Commission from rescinding or
otherwise invalidating its approval of the rezoning and the
SLUP applications; and an award of monetary damages resulting
from the Commission's interference with vested property
rights Red Alligator allegedly obtained upon approval of both
the filing of the lawsuit, the Commission continued to view
both the rezoning and the SLUP applications as pending
(rather than as approved), and placed the SLUP application on
a May 2015 agenda for a vote. Prior to that meeting, however,
Red Alligator requested the withdrawal of both applications,
and the Commission granted that request and therefore did not
vote on the application for a second time.
April 2016, the County moved for summary judgment, arguing
that because Red Alligator had withdrawn both applications
before a valid vote could be held the issues in its lawsuit
had been rendered moot. The County further argued that the
votes on both the rezoning petition and the SLUP application
were invalid because they failed to comply with the Ward
Courtesy Rule. After a hearing on the County's motion,
the trial court entered an order denying the same. Red
Alligator then submitted a "trial brief in which it
asked the trial court to enter judgment in its favor on all
of its claims based on the evidence of record, the arguments
heard at the summary judgment hearing, and the findings of
fact and conclusions of law contained in the trial
court's order denying summary judgment to the County. The
trial court thereafter entered an order of judgment in favor
of Red Alligator. The order found that Red Alligator's
withdrawal of the rezoning and SLUP applications prior to the
May 2015 vote did not render its lawsuit moot and granted Red
Alligator a declaratory judgment that the original approval
of both applications was valid, as neither was subject to the
Ward Courtesy Rule; an injunction barring the Commission from
rescinding or otherwise invalidating its prior approval of
the applications; and an award of monetary damages in an
amount to be determined.
entry of judgment in favor of Red Alligator, the County filed
an application for discretionary appeal, ...