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Jester v. Red Alligator, LLC.

Court of Appeals of Georgia, Fifth Division

October 31, 2017

JESTER, et al.
v.
RED ALLIGATOR, LLC.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          Branch, Judge.

         DeKalb County and its Board of Commissioners ("the Commission")[1] 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.

         The 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).

         The Ward Courtesy Rule.

         The 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. Id.

         Section 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."

         In 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."[2] 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.

         Although 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 located. Id.

         The Zoning Applications at Issue.

         Red 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.[3]

         In July 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[4] 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.[5] 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."

         The Current Lawsuit.

         In 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[6] 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 applications.

         Despite 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.

         In 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.

         Following entry of judgment in favor of Red Alligator, the County filed an application for discretionary appeal, ...


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