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Carson v. Brown

Court of Appeals of Georgia, Fourth Division

February 20, 2019

CARSON, JR. et al.
v.
BROWN et al. CARSON, JR. et al.
v.
BROWN et al. BROWN et al.
v.
CARSON, JR. et al.

          DILLARD, C. J., DOYLE, P. J., and MERCIER, J.

          Dillard, Chief Judge.

         These three consolidated appeals concern the partial grant of a motion for judgment on the pleadings with respect to an action by E. Howard Carson, Jr. and Red Bull Holdings II, LLC (collectively, "Carson") against the director of the Forsyth County Department of Planning and Community Development, Tom Brown, in his individual and official capacities, and against the planner technician of the same department, Carroll Williams, in her individual and official capacities (collectively, "Brown and Williams"). Carson filed a "petition for mandamus" seeking to compel Brown and Williams to process his application for a land-disturbance permit submitted in anticipation of developing certain real property in Forsyth County, and the trial court subsequently partially granted Brown and Williams's motion for judgment on the pleadings.

         The procedural history of the various appeals will be further discussed infra, but in both Case Numbers A18A1951 and A18A1978, Carson argues that, in granting the motion, the trial court erred by (1) ruling that he cannot challenge the constitutionality of a Forsyth County moratorium on certain land-disturbance applications via a petition for mandamus; (2) ruling that his challenge to the constitutionality and legality of the County's moratorium on certain land-disturbance applications really sought declaratory judgment, which was barred by sovereign immunity; and (3) denying his petition for mandamus and dismissing the action against Brown and Williams in their individual capacities. And in Case Number A18A1979, Brown and Williams cross-appeal, arguing that, in partially granting their motion for judgment on the pleadings, the trial court erred in (1) finding that Carson's action was not barred by res judicata; (2) finding that Carson's land-disturbance application was not clearly rejected; and (3) failing to dismiss the action for a failure to first exhaust administrative remedies. For the reasons set forth infra, we affirm in part and reverse in part as to Case Numbers A18A1951 and A18A1978, and affirm as to Case Number A18A1979.

         1. Jurisdiction.

         Before reaching the merits of the various appeals, we must first address our jurisdiction to entertain these cases, which Brown and Williams have challenged from the outset.[1] To that end, it is necessary to first detail how the appeals reached this Court.

         (a) Case Numbers A18A1978 and A18A1979.

         In Case Number A18A1978, Carson initially filed an application for discretionary appeal with the Supreme Court of Georgia, which then transferred the application to this Court. After reviewing the application for a discretionary appeal, we granted it after concluding that Carson had a right to a direct appeal under OCGA § 5-6-34 (a) (7), which provides, in relevant part, for direct appeals to this Court from "[a]ll judgments or orders granting or refusing to grant mandamus[.]"

         Following our grant of Carson's application on this basis, Brown and Williams filed a motion for reconsideration, arguing that Carson was required to file an application for discretionary appeal under OCGA § 5-6-35 (a) (1) because he was appealing the trial court's review of a local administrative agency's decision, citing Selke v. Carson.[2] We denied the appellees' motion for reconsideration. Thereafter, Brown and Williams filed their cross-appeal in this Court, which was docketed as Case Number A18A1979.

         (b) Case Number A18A1951.

         As discussed supra, in Case Number A18A1978, Carson initially filed an application for discretionary appeal in the Supreme Court of Georgia; but he did so out of an abundance of caution after also filing a direct appeal in Case Number A18A1951 (docketed in the Supreme Court as Case Number S18A0817). In light of the Supreme Court of Georgia's transfer of the application in Case Number A18A1978 to this Court, Carson filed a motion to transfer his direct appeal in A18A1951 from the Supreme Court to this Court as well, and the Supreme Court granted that motion.

         With three appeals then pending in this Court, we granted a consent motion by the parties to consolidate the cases. Accordingly, the issues and parties' arguments in Case Numbers A18A1978 and A18A1951 are one and the same.

          (c) Our jurisdiction to entertain these appeals.

         (i) The right to a direct appeal.

         Brown and Williams continue to challenge our earlier determination that Carson had a right to directly appeal in Case Number A18A1978 and, by extension, Case Number A18A1951. They also concede that, if this Court lacks jurisdiction over A18A1978, it likewise lacks jurisdiction to entertain their cross-appeal in A18A1979.[3] Brown and Williams assert that Carson was required to file an application for discretionary appeal under OCGA § 5-6-35 (a) (1) because his appeal was from the trial court's review of a decision by a local administrative agency. And once again, they rely on Selke v. Carson[4] in support of this argument.

         In Selke, the Supreme Court of Georgia dismissed a direct appeal filed by former deputy sheriffs who had been required to file an application for discretionary review. The appellants in Selke were terminated from their positions without notice and appealed their terminations to the Forsyth County Personnel Services Director, requesting that their appeals be forwarded to the Forsyth County Civil Service Board.[5] The Personnel Services Director denied the appeals because the sheriff claimed that the former deputies were terminated due to a reduction in force, and layoffs were not an appealable event; thus, the director refused to forward the appeals to the Board for its consideration.[6] The former deputies then filed a petition for writ of mandamus against the director, the board, and the county, seeking to compel the director to forward the appeals to the board.[7] The superior court thereafter granted a motion to dismiss that was filed by the appellees in Selke, and the appeal of the grant of that motion to dismiss was brought before our Supreme Court by a direct appeal.[8]

         The Supreme Court dismissed the appeal in Selke after determining that the director "made an administrative department decision refusing to forward appellants' appeals to the Civil Service Board"[9] and because that "decision was reviewed by the superior court, it was incumbent upon appellants to proceed [to the Supreme Court] by discretionary appeal."[10] Thus, the Selke Court recognized that while the general rule is that "judgments or orders granting or refusing to grant mandamus are appealable directly[, ]"[11] a direct appeal will not lie "if the underlying subject matter of a mandamus petition concerns an administrative ruling which is reviewed by a superior court[.]"[12] And the Court further explained that OCGA § 5-6-35 (a) (1) "requires an appellant to file an application for a discretionary appeal from a decision of a superior court reviewing the decision of a state or local administrative agency."[13]Stated another way, when "both the direct and discretionary appeal statutes are implicated, it is always the underlying subject matter that will control whether the appeal must be brought [under] OCGA § 5-6-34 or OCGA § 5-6-35."[14]

         Here, the record shows that in March 2016, Carson purchased Forsyth County property in the name of Red Bull and, at the time of purchase, that property was zoned in an RES3 district, which allowed for property to be developed into residential lots with a 9, 000-square-foot minimum size. Later, in August 2016, the Forsyth County Board of Commissioners imposed a 30-day moratorium on land-development permits for RES3 property that sought to develop lots with a size of less than 14, 750 square feet.[15] Then, on September 7, 2016, Carson submitted a land-disturbance permit application to the Forsyth County Department of Planning and Community Development, seeking to develop the subject property with residential lots at a minimum of 9, 000 square feet.

         The department initially accepted the application, but the next day, Williams, a planner technician, released the application back to Carson to make certain corrections. With the application amended accordingly, Carson resubmitted it, but on September 9, 2016, Williams wrote that she was "releasing this plan back to [Carson] because of the moratorium on RES3 LDP applications." Even so, she still asked Carson to provide additional information. Carson complied with this request, and the application remained pending after resubmission. Thereafter, when Carson asked Williams in writing to process the application, he received a response from the county attorney, who advised Carson that the application would not be processed and that the September 9, 2016 communication from Williams had been a rejection of same.

         As previously detailed, Carson proceeded by filing a verified petition for writ of mandamus against Brown and Williams, individually and in their official capacities, seeking an order declaring the moratorium void and ultra vires, and directing Brown and Williams to process the land-disturbance permit application. These appeals follow the trial court's partial grant of Brown and Williams's motion for judgment on the pleadings.

         Looking to Brown and Williams's jurisdictional challenge on appeal, it is undisputed that the Forsyth County Department of Planning and Community Development is a "local administrative agency" for purposes of OCGA § 5-6-35 (a) (1).[16] What is in dispute is whether a "decision" of a local administrative agency is being reviewed.

         In State v. International Keystone Knights of the Ku Klux Klan, Inc., [17] the Supreme Court of Georgia provides a thorough explanation of what constitutes a "decision" for purposes of OCGA § 5-6-35 (a) (1), [18] explaining that:

Considering the statutory text, its relevant context, the judicial precedents, and the usual understanding of American courts generally about administrative determinations of different sorts, we conclude that "decision"-as the term is used in OCGA § 5-6-35 (a) (1) with reference to administrative agencies-is most naturally and reasonably understood to refer to an administrative determination of an adjudicative nature.[19]

         In reaching this conclusion, the Supreme Court of Georgia explained that it has "consistently . . . refused . . . to require applications in cases concerning executive determinations and those involving rulemaking or other determinations of a legislative nature."[20] And more recently, in Schumacher v. City of Roswell, [21] our Supreme Court reiterated this point by noting that it has "refused to require an application in . . . zoning-related cases that were not appealing decisions of administrative agencies."[22] In both Schumacher and International Keystone Knights, the Supreme Court cited Mid-Georgia Environmental Management Group v. Meriwether County[23] as an example of a determination that was not a decision for purposes of OCGA § 5-6-35.[24]

         In Mid-Georgia Environmental Management Group, a landowner contacted Meriwether County to acquire a verification letter stating that the owner's proposed use of its property for development of a landfill complied with the county's zoning ordinance and solid waste management plan.[25] The letter also informed the county that the property owner believed the county's relevant zoning ordinance "had not been validly adopted and therefore the [c]ounty's only option was to issue the verification letter."[26] The county refused to issue the verification letter, asserting that its zoning ordinance was validly adopted and, thus, the property owner's proposed use of the land was impermissible.[27] Thereafter, the property owner filed both a declaratory judgment action as to the validity of the zoning ordinance, and a petition for writ of mandamus to require the county to issue the verification letter.[28] The trial court entered declaratory judgment in favor of the county and denied the petition for writ of mandamus, leading the property owner to seek review by the Supreme Court of Georgia.[29]

         Our Supreme Court determined in Mid-Georgia Environmental Management Group that the property owner had a right to directly appeal the trial court's ruling on the petition for writ of mandamus because the county's decision refusing to issue the requested verification letter was not a "zoning decision" for purposes of OCGA § 5-6-35.[30] And in the cases relied upon by our Supreme Court in reaching this conclusion, the Court repeatedly found a right to directly appeal in situations in which a party sought mandamus to compel the issuance of verification letters, as opposed to challenging what it deemed a "zoning decision."[31]

         Here, we must determine whether Williams's "release" of Carson's land-disturbance permit application back to him "because of the moratorium on RES3 LDP applications" and concurrent request for the provision of additional information constitute a "decision" for purposes of OCGA § 5-6-35. The Supreme Court of Georgia has previously permitted a direct appeal from a mandamus action in which a property owner sought issuance of a land-disturbance permit after no decision was made for at least three months after the application's submission, and the application was eventually rejected by the relevant city employee only after he was instructed by the board of commissioners not to issue the permit.[32] On the other hand, more recently, our Supreme Court granted an application for discretionary appeal in a case in which a property owner filed a petition for a writ of mandamus, seeking issuance of land-disturbance permits.[33]

         The only discernable distinction between these Supreme Court precedents is that, in the direct appeal, the relevant city employee failed to make any decision on the application for months after its submission, the applicant filed a petition for a writ of mandamus, and the application was only officially denied the day before the hearing on the applicant's petition for mandamus.[34] In the case brought by application for discretionary appeal, the request for a land-disturbance permit was denied by the county on the merits, and the applicant challenged the denial through the petition for writ of mandamus.[35] And in this case, in which Carson's application was simply "released" back to him due to a moratorium, we, like the trial court, conclude that no clear "decision" was made on the merits of Carson's application. Instead, even Brown and Williams's explanation that the moratorium prevented acceptance of such applications supports this conclusion: if the application could not be accepted, no decision could be rendered. Thus, because no decision was made for purposes of OCGA § 5-6-35 (a) (1), the discretionary appeal procedure was not implicated.

         (ii) Whether an application for interlocutory appeal was required.

         Although we have concluded that no "decision" was made for purposes of OCGA § 5-6-35 (a) (1), Brown and Williams also argue that this Court lacks jurisdiction because Carson was required to follow the procedures for an interlocutory appeal because the trial court made no final ruling on the question of mandamus, and one claim remains pending below.[36]

         The Supreme Court of Georgia recently rejected a similar argument when a county asserted that an appeal was subject to dismissal because the trial court's grant of a motion to dismiss was not a final order when "it did not adjudicate all the claims against the multiple parties in the case[.]"[37] But our Supreme Court found the "final order" statute, OCGA § 5-6-34 (a) (1), irrelevant because the trial court's order "also dismissed the . . . claim for mandamus relief, and therefore was, at the time the notice of appeal was filed, immediately and directly appealable to this Court [under] OCGA § 5-6-34 (a) (7)."[38] Accordingly, because the trial court dismissed a claim for mandamus as to Brown and Williams in their individual capacities, Carson was not required to follow the interlocutory appeal procedures and was, as we held supra, entitled to a direct appeal under OCGA § 5-6-34 (a) (7).[39]

         Having concluded that we have jurisdiction over Carson's appeals, we will now proceed to considering his enumerations of error in Case Numbers A18A1951 and A18A1978.

         2. Case Numbers A18A1951 and A18A1978.

         In both Case Number A18A1951 and Case Number A18A1978, Carson contends that the trial court erred in partially granting Brown and Williams's motion for judgment on the pleadings by (1) ruling that Carson cannot challenge the constitutionality of a Forsyth County moratorium on certain land-disturbance applications via a petition for mandamus; (2) ruling that his challenge to the constitutionality and legality of the County's moratorium on certain land-disturbance applications really sought declaratory judgment, which was barred by sovereign immunity; and (3) denying his petition for mandamus and dismissing the action against Brown and Williams in their individual capacities.

         When reviewing a trial court's decision on a motion for judgment on the pleadings, we do so de novo, construing the complaint "in a light most favorable to the appellant, drawing all reasonable inferences in his favor."[40] And when, as in this case, a defendant files a motion for judgment on the pleadings "and does not introduce affidavits, depositions or interrogatories in support of the motion, such motion is the equivalent of a motion to dismiss the complaint for failure to state a claim upon which relief can be granted."[41] A motion to dismiss for failure to state a claim, then, "should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of the plaintiff's claim."[42] In this regard, the issue is whether "the undisputed facts appearing from the pleadings entitle the movant to judgment as a matter of law, "[43] and "all well-pleaded material allegations of the opposing party's pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false."[44]

         So viewed, and as discussed supra, the complaint alleges that in March 2016, Carson was interested in purchasing 17.6 acres of land in Forsyth County zoned in the RES3 district, which permitted development into a residential subdivision with lots at a minimum size of 9, 000 square feet. Carson thereafter purchased the property on March 29, 2016, and titled it in the name of Red Bull Holdings. For the next three months, in coordination with the Forsyth County Water and Sewer Department, Carson pursued plans to develop the subject property into a residential subdivision with lots at a minimum size of 9, 000 square feet.

         On August 9, 2016, during a work session of the Forsyth County Board of Commissioners, the Board voted on oral motion to approve the imposition of a 30-day moratorium on land-development permits for RES3 properties when applicants sought to "develop the RES3 at any lot square footage less than our existing table of 14, 750 square feet and that this item is approved as time sensitive." According to Carson's complaint, the referenced table, Table 11.2 (b), in footnote 1 of the Forsyth County Unified Development Code as it was in effect at the relevant time, provided as follows:

RES3 rezoning applications applied for and/or approved by the Board of Commissioners between the following dates may comply with the minimum lot size requirements as follows: (a) prior to November 1, 2007: 9, 000 square feet; (b) between November 1, 2007 and July 18, 2013: 14, 500 square feet; (c) between July 18, 2013 and October 2, 2014: 10, 000 square feet.

         The August 9th work session was held without notice to the public or opportunity to be heard, and the session was not memorialized in an ordinance or resolution.

         At another work session on August 23, 2016, the Board voted to approve a verbal motion to modify the previously approved moratorium so as to exempt land-disturbance permit applications for RES3 properties that sought to develop lots at a minimum size of 10, 000 square feet. The modification also provided that a public hearing on the continued moratorium would take place on September 1, 2016. This second work session was also held without notice to the public or opportunity to be heard. But on August 14, 2016, the County advertised a notice of public hearing to be held on September 1, 2016, to consider possible extension of the moratorium until December 7, 2016. Thereafter, on September 1, 2016, the Board adopted a resolution titled "A Resolution of the Forsyth County Board of Commissioners Extending until December 7, 2016, an existing moratorium on acceptance of applications for land disturbance permits on certain RES3 zoned parcels."

         On September 7, 2016, Carson submitted a land-disturbance permit application to the Forsyth County Department of Planning and Community Development, seeking to develop the subject property into a residential subdivision with 39 lots. The application was accepted by the Department and assigned a file number, and Carson paid the required filing fee and submitted the required surveys and plans. The following day, Williams told Carson that she was "releasing this plan back to you to make the following correction[s]." Under the Forsyth County Unified Development Code, the "Land Disturbance Permit Plan Review Procedures" provides as follows:

Each Land Disturbance Permit (LDP) application must be approved and a LDP issued within twelve (12) months of the initial plan submittal date. Failure to obtain a permit within twelve (12) months will require the submittal of a new Land Disturbance Permit application . . . . [C]omments will be returned to the developer and/or their agent for corrections by their engineer and/or surveyor. After the departmental comments have been addressed, and corrections to the plans are made, the developer and/or their agent will return to each reviewing department to provide evidence that such changes have been made.

         Thus, in response to Williams's communication, Carson made the requested corrections and resubmitted the application.

         On September 9, 2016, Williams responded to the resubmitted application as follows: "I am releasing this plan back to you because of the moratorium on RES3 LDP applications." Nevertheless, Williams asked Carson to provide information on a paid sewer reservation, "or any other information regarding the RES3 zoning," and said that the plan would need to be resubmitted with the requested information. Meanwhile, that same day, Carson paid a plan review fee to the Fire Marshal's Office for review of the application plans. And following the September 9, 2016 communication from Williams, Carson's LDP application "remained open and pending and [Carson] investigated the alleged moratorium, the availability of sewer for the Property, the RES3 zoning, and the pending Application." Then, nearly one month after Williams's communication with Carson, on October 6, 2016, the Forsyth County Board of Commissioners adopted an amendment to the Unified Development Code to partially delete footnote 1 containing Table 11.2 (b), except for the subparagraph permitting 10, 000 minimum square foot residential lots approved after July 18, 2013.

         Carson amended the LDP application on January 30, 2017, to update the property-owner information. Then, on February 7, 2017, Carson directed correspondence to Williams's September 9, 2016 response, providing additional information and demanding that the LDP application be processed for approval. Within that correspondence, Carson alleged that the moratorium was ultra vires, illegal, unconstitutional, and otherwise null and void. In response to this communication, the Forsyth County Attorney responded to Carson, stating that the LDP application would not be processed because Williams's September 9, 2016 communication amounted to a rejection of the application.

         Carson proceeded by filing his verified petition for writ of mandamus in the Superior Court of Forsyth County on March 10, 2017, in which he challenged "the constitutionality of the Alleged Moratorium facially, and as applied to [him] and the Property." He also alleged that the moratorium was "ultra vires, null and void," and that Brown and Williams had "failed and/or refused to take any action on [the LPD] Application." Thus, because the moratorium "is ultra vires, illegal, null, void and unconstitutional," Carson asserted that ...


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