ZONING LAW AND TRIAL OF A ZONING CASE

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1 ZONING LAW AND TRIAL OF A ZONING CASE Presented by LINDA I. DUNLAVY DUNLAVY LAW GROUP, LLC B Atlanta Avenue Decatur, Georgia (404)

2 ZONING LAW AND TRIAL OF A ZONING CASE By: Linda I. Dunlavy 1 And Brandon L. Bowen TABLE OF CONTENTS Page I. Introduction: The Power to Zone... 1 II. Proceedings before the Local Governing Body... 2 A. Drafting and Processing an Application.. 3 B. Exhaust Administrative Remedies... 4 C. Raise Constitutional Objections... 5 D. Appeal Must be Timely...8 E. Zoning Procedures Law Requirements: Take Seriously F. Follow the Open Meetings Act G. Comply with the Local Charter, Enabling Act, and Local Ordinances III. Proceedings in Superior Court A. File in the Local Superior Court, and Get the Parties Right B. Prepare to Prove Standing C. Making the Right Claims...20 D. Getting Damages and Fees IV. Proceedings in Appellate Court A. When in Doubt, File a Discretionary Appeal Application B. Determine the Proper Appellate Court C. When Filing an Application, be Persuasive & Follow the Court s Rules Special thanks to Brandon L. Bowen of Jenkins and Olson PC, who contributed major portions of this paper. - i -

3 I. INTRODUCTION Georgia law regarding development and land use derives initially from the State Constitution. Since 1983, the authority to enact development and land use regulations has been given to local government, with the General Assembly reserving the right to enact certain procedural requirements governing the exercise of that authority. The key state constitutional provisions, Article IX, Section II, Paragraphs I and IV, Georgia Constitution, provide (in pertinent part) as follows: The governing authority of each county shall have legislative power to adopt clearly reasonable ordinances, resolutions, or regulations relating to its property, affairs, and local government for which no provision has been made by general law and which is not inconsistent with this Constitution or any local law applicable thereto. Any such local law shall remain in force and effect until amended or repealed as provided in subparagraph (b). This, however, shall not restrict the authority of the General Assembly by general law to further define this power or to broaden, limit, or otherwise regulate the exercise thereof. (Paragraph 1, in part). The governing authority of each county and of each municipality may adopt plans and may exercise the power of zoning. This authorization shall not prohibit the General Assembly from enacting general laws establishing procedures for the exercise of such power. (Paragraph 4). Zoning is the regulation by a county or a municipality of the use of land within the community and of the buildings and structures thereon. Zoning generally involves the specification of uses that are permitted and the standards by which the uses must comply, i.e. set backs, lot coverage, building height, etc. The Georgia Zoning Procedures Law (discussed at more length below) states that zoning means: [T]he power of local governments to provide within their respective territorial boundaries for the zoning or districting of property for various uses and the prohibition of other or different uses within such zones or districts and for the regulation of 1

4 development and the improvements of real estate within such zones or districts in accordance with the uses of property for which such zones or districts were established. O.C.G.A (3). As alternatively stated by the Supreme Court of Georgia, zoning involves dividing a governmental unit into zones or districts and applying different standards to such zones or districts in regard to property therein. Greater Atlanta Home Builders Association v. DeKalb County, 277 Ga. 295 (2003); City of Decatur v. DeKalb County, 256 Ga. App. 46 (2002). However, not every land use regulation is zoning. Generally, it does not include a tree ordinance (Greater Atlanta Home Builders Association v. DeKalb County, supra.); licensing regulations (Fairfax M.K., citing Mayor and City Council of Baltimore v. Dembo, 123 Md. App. 527 (1988); historic preservation regulations (Cf. Buckler v. DeKalb County; 299 Ga. App. 465 (2009)); or other regulations not keying particular regulations by zoning district. Zoning does not include the granting of variances by a quasi judicial body such as a Zoning Board of Appeals or a Board of Zoning Adjustments. Bentley v. Chastain, 242 Ga. 348 (1978). These are quasi-judicial administrative decisions, the legal court challenge of which is procedurally and substantively distinct from a straight zoning court challenge. II. PROCEEDINGS BEFORE THE LOCAL BODY The first stage of any zoning case or administrative zoning matter (i.e. variance or special exception request) will be the proceedings before the local body, whether of a city or a county 2. The following are issues that should be covered at this initial stage. 2 Presenting and trying special land use permits will not be included in this paper as it is the 2

5 A. Drafting and Processing the Application Whether it be a rezoning, a variance, or an application for a special exception the approach taken in preparation of applications may be the difference between getting favorable results and being denied. It is extremely important to file a complete and thorough application. Be sure to thoroughly review, understand and discuss zoning maps, surrounding uses, and zoning. Be precise, i.e. make sure your legal description closes and matches your survey. Since requirements vary widely between jurisdictions, always check when in an unfamiliar jurisdiction what is required. Utilize any checklists provided by zoning and planning authorities and follow them. Use your statement of intent or impact statement not in a perfunctory manner, but as a means to try and persuade the zoning staff who will be analyzing the application, the neighboring property owners and the decision makers. Subsequent to filing the application, or even before, contact adjoining property owners and civic groups. Mail letters, set up meetings, call people - whatever it takes to get meaningful public participation, then work on getting them to support your application prior to the commencement of public hearings, if possible. Provide citizens and staff with well organized, relevant information, i.e. traffic noise; environmental study where appropriate; renderings of structures; landscape; elevations; sign and distances, photographs, etc., whatever it takes to assist in visualizing and understanding the project. Allow your self plenty of time. author s understanding that this topic will be addressed by Kyle Williams in his paper. 3

6 The more time you spend front loading the process, the more you enhance your chances of success. Where permitted (i.e. quasi-legislative processes), get the decision makers in the loop, meet with them (city councilman, commissioners, planning commissioners, NPU reps, etc.), call them, provide supporting documents to them, ask them to neighborhood meetings and ultimately persuade them. Make constitutional objections and file documents for the record where needed. Hire a court reporter if one is not provided by the local jurisdiction. This is particularly important for administrative zoning matters where the appeal is one on the record. Better to spend a few bucks on a take down, than find yourself without a transcript of the proceedings! B. Exhaust Administrative Remedies. Under Georgia law, it is generally true that a party must first exhaust available administrative remedies before taking its claim to Superior Court. DeKalb County v. Cooper Homes, 283 Ga. 111 (2008); Little v. City of Lawrenceville, 272 Ga. 340 (2000). The purpose of the exhaustion requirement is to allow the local authority an opportunity to decide the issue and prevent unnecessary judicial intervention into local affairs. The rule also is intended to promote judicial economy. See, e.g., Cooper v. Unified Government of Athens-Clarke County, 277 Ga. 360 (2003); Powell v. City of Snellville, 266 Ga. at 316 (1996) citing Village Centers v. DeKalb County, 248 Ga. 177 (1981). However, the mere existence of an unexhausted administrative remedy does not always provide a defendant with an absolute defense to court 4

7 action. AT & T Wireless PCS, Inc. v. Leafmore Forest Condominium Association of Owners, 235Ga. App. 319 (1998). There are long recognized exceptions to the exhaustion of remedies rule. For example, a litigant is not required to exhaust administrative remedies when: 1) the litigant challenges the power of the agency to issue an order; (in Leafmore exhaustion not required because litigant challenged authority of Public Works to issue building permit contrary to conditions of zoning); in DBL, Inc. v. Carson, 284 Ga.APP. 898 (2007) (exhaustion not required because litigant challenged power of Coastal Marshlands Protection Committee to issue a water bottom lease); 2) a litigant seeks to enforce a right established by the adoption of a zoning ordinance (Martin v. Hatfield, 251 Ga. 638 (1983)); 3) the administrative remedy provided is optional (Hunnicut v. Georgia Power Company, 168 Ga. App. 525 (1983)); or 4) to require exhaustion would be to require a futile act (City of Albany v. Oxford Solid Waste Landfill, Inc., 267 Ga. 283 (1996); Powell v. City of Snellville, 266 Ga. 315 (1996); Glynn County Board of Education v. Lane, 261 Ga. 544 (1991); WMM Properties, Inc. v. Cobb County, 255 Ga. 436 (1986)). However, it is better practice to exhaust your remedies by first filing an application or an appeal of an adverse administrative zoning decision rather than attempting to hang your hat on these narrowly circumscribed exceptions to the doctrine. C. Raise Constitutional Objections. Probably the most important thing a lawyer needs to do in the straight zoning case prior to a decision thereon by the local governing body is make constitutional objections. Failure to 5

8 raise constitutional challenges prior to the rendering of an adverse decision will result in the property owner being barred from challenging the zoning classification, unless the owner is making a facial challenge. The Supreme Court has repeatedly stated that constitutional challenges to a zoning classification cannot be brought in superior court for the first time; they must be raised first with the local governing body. Chambers of Georgia, Inc. v. Department of Natural Resources, 232 Ga.App. 632, 502 S.E.2d 553 (1998); Cobb County Bd. of Com'rs v. Poss, 257 Ga. 393, 359 S.E.2d 900 (1987). To avoid the harsh consequences of failing to raise these constitutional challenges it is recommended that constitutional challenges become a standard part of your written zoning application. Most jurisdictions require a statement of intent in support of your zoning request. Include, as a matter of routine, constitutional objections (whether or not you anticipate a negative decision) should be drafted as part of the statement of intent. For example, you need merely have a standard constitutional objections section which states something similar to as follows: The existing inconsistent zoning classifications constitute, and all zoning and plan classifications intervening between the existing inconsistent zoning classification and that required to develop this project would constitute a taking of the owner s private property without just compensation and without due process in violation of the Fifth Amendment and Fourteenth Amendment of the Constitution of the United States, and Article I, Section I, Paragraph I and Article I, Section III, Paragraph I of the Constitution of the State of Georgia and the Due Process Clause of the Fourteenth Amendment of the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. The Applicant further respectfully submits that the Board of Commissioners cannot lawfully impose more restrictive standards upon the development of the property than presently exists as to do so not only would constitute a taking of the property as set forth above, but also would amount to an unlawful delegation of their authority, in response to neighborhood opposition, in violation of Article IX, Section IV, Paragraph II of the 6

9 Georgia Constitution. Moreover, in the event of opposition to the proposed rezoning, the Applicant submits that opponents do not have standing to assert opposition and can prove no special damages as per the specially aggrieved citizen test. Constitutional challenges need not be made with such specificity. Under Ashkouti v. City of Suwanee, 271 Ga. 154, 516 S.E.2d 785 (1999), the court lightened the long standing requirements more specific requirements for the making of a legally sufficient constitutional challenge. Applicants are not required to cite a specific provision of the constitution that is violated and state the manner of the violation. A simple assertion that the denial of the rezoning would violate the applicant s constitutional rights to equal protection and due process is sufficient. However, failure to satisfy these minimal requirements will bar the suit. Id. It should also be noted that the courts have on occasion applied this rule to bar claims that do not present issues of constitutional law. For example, in Trend Development Corp. v Douglas County, 259 Ga. 425, 383 S.E.2d 123 (1989), the Supreme Court held that pleas in bar must also be raised before the local government. In that case, the plea was res judicata based on a prior zoning decision. Because the County did not raise the res judicata claim while the matter was pending before its governing body, the Supreme Court held that it was waived. Similarly, in RCG Properties, LLC v. City of Atlanta Bd. of Zoning Adjustment, 260 Ga.App. 355, 579 S.E.2d 782 (2003), in the context of an administrative appeal, the Court of Appeals held that the local government's challenge to the standing of the challenger could not be raised for the first time in court, and was waived because standing was not raised when the case was before the local Zoning Board of Adjustment. The best practical advice one can take away from these rulings is, in the utmost of caution and when in doubt file a written objection prior to any 7

10 decision, be it a straight zoning or an administrative zoning appeal, be it a constitutional or other objection. D. Appeal must be timely. Challenges to zoning decisions must be brought within 30 days. Village Centers, Inc. v. DeKalb County, 248 Ga. 177, 281 S.E.2d 522 (1981). This requirement can catch property owners unawares when the rezoning at issue is one instituted by the local governing body, such as the adoption of a new zoning ordinance and map. The new ordinance cannot be challenged years later, without first applying for a rezoning. Wilson v. City of Snellville, 256 Ga. 734, 352 S.E.2d 759 (1987). This time limit cannot be extended by the superior courts. The 30-day rule has been held to flow from the 30-day appeal time for appeals to the superior court. Under that case law, the 30 days run from the decision being reduced to writing. In some jurisdictions, that may only happen when the minutes of the meeting are adopted, which, under the Open Meetings Act, may be weeks later at the next regular council meeting. See Chadwick v. Gwinnett County, 257 Ga. 59, 354 S.E. 2d 420 (1987). Quite frankly, in my practice I file any appeal within 30 days of the hearing at which the decision was made---it just seems like the cautious and least fraught with peril way to proceed. The 30-day requirement does not apply outside of the straight zoning case. If the property owner is seeking the issuance of a building permit under the existing zoning classification, the proper action is to file a petition for a writ of mandamus or, if specified under the local jurisdiction s ordinance, a certiorari petition within the time specified in the local 8

11 ordinance. See Martin v. Hatfield, 251 Ga. 638, 308 S.E.2d 833 (1983). This type of case is not a constitutional challenge to a zoning ordinance, but rather the attempt to force a public officer to do his duty. The courts view this as attempting to enforce a right established by the current zoning, rather than a challenge to the current zoning. However, that being said, most practitioners will bring a suit even vaguely resembling a zoning suit within 30 days to prevent a challenge to its timeliness, and to preserve the opportunity to bring constitutional challenges. Arguably, the 30-day time bar only applies to the denial or approval of rezoning applications for specific property by a governing authority. See, e.g., Wilson v. City of Snellville, 256 Ga. 734 (1987)(challenge to City s pre-zpl adoption of new zoning ordinance and map brought by effected property owner 3 years after action found to be time barred because the published newspaper notice of the proposed zoning action was adequate); Village Centers, Inc. v. DeKalb County, 248 Ga. 177 (1981)(Zoning applicants complaint in equity challenging zoning on property almost 1-1/2 years after same applicant s rezoning request denied was time barred under 30 day limitation); Hollberg v. Spalding County, 281 Ga. App. 768 (2008) (adjoining land owner challenging decision to rezone a tract of land more than 30 days after the decision was time barred even though he coupled the challenge with an alleged ZPL violation). It does not apply where a denial of procedural due process is the crux of your case. In such instances, Georgia courts have recognized the viability of a challenge long after the expiration of the 30 day limit. The reasoning is that without due process, the rezoning is void and can be challenged at any time, as it was void. Golden v. White, 253 Ga. 111, 316 S.E.2d 460 (1984). Tilley Properties v. Bartow County, 261 Ga. 153 (1991) was decided in 1991 long after 9

12 establishment of the 30 day rule in Village Centers. The property owners in Tilley argued that the entire Bartow County Zoning Ordinance was null and void because it had not been adopted pursuant to the ZPL: 1) there was no public notice in a newspaper regarding adoption of policies and procedures; 2) there was no public hearing on the policies and procedures; and 3) there was no mention of the policies and procedures in the ordinance. The Plaintiff did not challenge the defective adoption until over four years after the Zoning Ordinance was adopted. Nonetheless, the Georgia Supreme Court held the Bartow County zoning ordinance void for failure to comply with the challenged notice and hearing requirements of the ZPL. Tilley is still good law and there is no reason to believe that the appellate courts of today would apply the 30-day time bar in a similar case today. However, clarification on this issue may come from a case currently seeking discretionary review in the Georgia Supreme Court, 400 North Landfill v. Lumpkin County, Docket #S11D0091. When the question is not whether the decision was valid, but what is the effect of the decision, then the courts have also not applied the 30-day rule on the grounds that this calls for a declaratory judgment, rather than an appeal. In Head v. DeKalb Co., 246 Ga.App. 756, 542 S.E.2d 176 (2000), there was confusion as to whether the vote actually approved or denied the rezoning, because of particular procedural rules of DeKalb County. The county attorney offered an opinion that the rezoning failed, and the neighbors went home happy. The developer s attorney convinced the county attorney that the rezoning actually did satisfy the procedural technicalities, and so the map was changed and permits issued. It was several months before the neighbors learned of this, when dirt started to be moved. They brought suit several months after 10

13 the rezoning, and were not barred by the 30-day limitation. E. ZONING PROCEDURES LAW REQUIREMENTS: TAKE SERIOUSLY In enacting the Zoning Procedures Law, O.C.G.A. Section et. seq., in 1986, the General Assembly established minimum procedures governing the exercise of zoning power by local governments in order to assure that due process is afforded to those potentially affected by the exercise. See, e.g., City of Roswell v. Outdoor Systems, Inc., 274 Ga. 130 (2001); McClure v. Davidson, 258 Ga. 706, 710 (1988). These procedures provide for the advertising of the public hearing on a requested rezoning, the installation of signs on the property and notice to neighboring property owners within 15 to 45 days prior to the public hearing on the rezoning request. The procedures set forth in the ZPL are mandatory; the state legislature did not state that the procedures were to be used as guidelines by local governments. McClure, 258 Ga. at 710. So if a local government adopts a zoning ordinance or makes a zoning decision without following the notice and hearing requirements of the ZPL, what are the consequences? In McClure v. Davidson, 258 Ga. 706 (1988) for example, the rezoning of a 20-acre tract from A-1 to B-1 was set aside due to failure to observe the advertising requirements of O.C.G.A (c). The result most local governments fear came to pass in Tilley Properties, Inc. v. Bartow County, 261 Ga. 153 (1991). There, after a rezoning application had been denied, the unsuccessful applicant sued Bartow County on grounds that it was not required to secure rezoning of the property because the ordinance had not been adopted in compliance with the 11

14 ZPL. The unsuccessful property owners urged that no valid ordinance even existed in Bartow County since it had not, prior to adopting zoning policies and procedures, held the public hearing required in O.C.G.A The Supreme Court agreed, and invalidated the entire Bartow County zoning ordinance. See, also, C & H Development, LLC, v. Franklin County, 294 Ga.App. 792 (2008). In this very recent case the Court of Appeals held that notice of public hearing on a property owner's request for a conditional use permit, published 46 days before the scheduled date of the hearing, was insufficient to satisfy provision of Zoning Procedures Law requiring such notice to be published [a]t least 15 but not more than 45 days prior to the date of the hearing. The county's approval of the permit following the hearing was held invalid, even though the 45th day after publication of the notice was a Sunday. Because the hearing was not actually noticed or scheduled for the Sunday, the 45 day period was to be measured backward from the date of the hearing. As a practical matter, the zoning applicant has no control over compliance with advertising and notice provisions. However, if the applicant has any reason to believe that the local government has messed up in following the mandates of the ZPL, it would behoove the applicant to raise this issue with the staff of the local government and have the matter deferred if need be to allow for the compliance with ZPL procedures rather than run the risk of a later challenge which may lead to the voiding of the zoning action. 12

15 F. Follow the Open Meetings Act. On occasion, a rezoning or administrative zoning decision will be taken in violation of the Open Meetings Act, O.C.G.A et seq.beck v. Crisp County Zoning Bd. of Appeals, 221 Ga.App. 801, 472 S.E.2d 558 (1996). (T)he test for the applicability [of the Open Meetings Act] is two-pronged: first, is the meeting one of a governing body of an agency or any committee thereof?; and second, is the meeting one at which official business or policy of the agency is to be discussed or at which official action is to be taken, Red & Black Pub. Co. v. Board of Regents, 262 Ga. 848, 854, 427 S.E.2d 257 (1993); Jersawitz v. Fortson, 213 Ga.App. 796, 798, 446 S.E.2d 206 (1994). As such, the vote to grant a rezoning in an executive session would be improper, even under threat of lawsuit. However, the discussion of a court decision setting aside a rezoning in executive session is not a meeting when no official action is taken. Gumz v. Irvin, 300 Ga.App. 426 (2009). The attorney-client exception to the Open Meetings Act should only be used to discuss potential litigation, rather than to vote on the merits of the rezoning decision. The applicant should ensure that the vote taken is proper, as in the event of a challenge to the grant of the application, it may be struck down. G. Comply with the local charter, enabling act, and local ordinances All municipalities are created by a charter adopted by the General Assembly and available and indexed in volume 42 of the Official Code of Georgia. Likewise, the Board of Commissioners of counties were all created by enabling or organizational acts. The Acts are not 13

16 codified in the Georgia Code but are listed in the General Laws. These documents will often contain the procedures governing the adoption of resolutions and ordinances, and may be applicable to rezoning procedures. For example in Head v. DeKalb Co., 246 Ga.App. 756, 542 S.E.2d 176 (2000), the DeKalb County organizational act provided that a zoning could not be approved without the affirmative vote of either the district commissioner or the commissioner at large for the district wherein the property lies. Because of a change in the form of the county government (the designation of Super District Commissioners ), it was unclear as to whether the organizational act had indeed been complied with when the rezoning action was supported by the Super District Commissioner but not the District Commissioner. Ultimately, the court decided that Super District Commissioner was not the same as at-large commissioner and therefore the rezoning had not been approved under the terms of the organizational act. In the case of Little v. City of Lawrenceville, 272 Ga. 340, 528 S.E.2d 515 (2000), the neighbor challenging a rezoning contended the city did not follow the procedure required in its charter for adopting a rezoning. The court held that the Zoning Procedures Law preempts any local procedure applying to rezoning. Hence, if the provision can be seen as a procedural provision, it may be preempted by the ZPL. However, if the ZPL does not address a particular procedure, i.e. occupy the same field as a local ordinance provision; the local ordinance provision must be complied with. For example, in Harden v. Banks County, 294 Ga. App. 327 (2008), a rezoning application was approved by the Board of Commissioners but later the zoning decision was declared void by the Court of Appeals for the failure of the local jurisdiction to 14

17 comply with own ordinance. The local ordinance required the filing of a site plan in support of the application for rezoning; none had been provided by the applicant. In spite of the Board s approval, the Court of Appeals voided the zoning action for failure to comply with its own substantive application requirements. However, be aware that failure to comply with mere parliamentary rules or local procedural requirements in the processing of a zoning application may be upheld under the authority of South Georgia Power Co. v. Baumann, 169 Ga. 649 (1925). III. PROCEEDINGS IN SUPERIOR COURT A. File in the local superior court, and get the parties right. 1) Straight Zoning Cases: Zoning suits are suits in equity, and are heard in superior courts. Village Centers, Inc. v. DeKalb County, 248 Ga. 177, 178, 281 S.E.2d 522 (1981). A zoning appeal of a straight zoning case is not really an appeal in form or substance. It is a de novo proceeding wherein the court determines whether the zoning decision was constitutional based upon the evidence submitted to the trial court---not the evidence before the Board of Commissioners or the City Council. Unlike with administrative zoning appeals, the proceeding is not limited to a review of the record and a determination as to whether the local body committed legal error. Id. The typical challenge is a challenge to the constitutionality of a zoning ordinance, and thus cannot be tried in State Court. The challenge in a straight zoning case is always to the constitutionality of the existing zoning, not whether the proposed zoning is constitutional or provides a higher and better 15

18 use. If there is a substantial gap between the existing zoning and the proposed zoning, the aggrieved property owner may wish to allege that the intervening zoning classifications are also not constitutional, in order to avoid having the existing zoning struck down, only to have the local government rezone the property to an intervening classification that still does not allow the desired use. The straight zoning case will ultimately be decided by the judge, as the constitutionality of a zoning decision is not a jury question. Dover v. City of Jackson, 246 Ga.App. 524, 541 S.E.2d 92 (2000). Further, the appropriate decision, if the court finds the current zoning unconstitutional, is not to rezone the property, but only to order the property rezoned in a constitutional fashion. Town of Tyrone v. Tyrone LLC, 275 Ga. 383, 384, 565 S.E.2d 806 (2002). This last point is one the local government attorney should keep in mind when defending the case, because, in the event that the local government loses, the judge may order the property rezoned in a specific manner, particularly if the parties submit proposed orders. The court should be advised that should the existing zoning classification be found to be unlawful, the proper remedy would be to direct that the property be rezoned by the local authority not the court! Straight zoning cases are brought against the city or county making the zoning decision. Suits against counties should be brought against the county. Ga. Const., Art. 9, Sec. 1, Para. I.; see also Guhl v. Tuggle, 242 Ga. 412, 249 S.E.2d 219 (1978). Entities such as planning commissions or boards of zoning appeals are not proper parties as they do not have the power to zone. Riverhill Community Ass n v. Cobb County Bd. of Com rs, 236 Ga. 856, 226 S.E.2d 54 16

19 (1976). If the challenge is to a successful rezoning of other person s property, the successful applicant (and property owner if not the applicant) should be named as a party. Riverhill Community Ass n v. Cobb County Bd. of Com rs, 236 Ga. 856, 226 S.E.2d 54 (1976). They would have the right to intervene were they not named, and the decision needs to be binding on them as well. If the challenge is to a successful rezoning of other person s property, the successful applicant (and property owner if not the applicant) should be named as a party. Riverhill Community Ass n v. Cobb County Bd. Of Comm rs, 236 Ga. 856, 226 S.E.2d 54 (1976). They would have the right to intervene were they not named, and the decision needs to be binding on them as well. Individual city council members or county commissioners are not necessary or proper defendants in their individual capacity. They can be named in their official capacity, but that may be superfluous in a challenge to a rezoning denial. When mandamus is sought, however, a public officer must be named, and the local government itself is not a proper party. See City of Homerville v. Touchton, 282 Ga. 237, 647 S.E.2d 50 (2007) (here, failing to name a public official resulted in the dismissal of the suit). If a claim of personal wrongdoing exists, claims can of course be brought against individual government officials. Otherwise, officials have legislative immunity in their individual capacity against challenges in zoning suits. Whipple v. City of Cordele, 231 Ga.App. 274, 499 S.E.2d 113 (1998). The proper jurisdiction is the county where the local government sits, which of course is also where the land lies. 17

20 2) Administrative Zoning Appeals A zoning board sitting in consideration of variances, special exceptions or appeals of administrative decisions sits in a quasi-judicial capacity (applying facts before it to the law as set forth in the ordinance). As such, the Georgia Supreme Court has held that a local jurisdiction may specify the method for judicial review. Beugnot v. Coweta County, 231 Ga.App. 715, 500 S.E.2d 28 (1998); Jackson v. Spalding County, 265 Ga. 792 (1995). If a specific method of judicial review is not specified, i.e. certiorari or appeal, then mandamus is the vehicle for appealing an administrative zoning decision. City of Atlanta v. Wansley Moving Company, 245 Ga. 794 (1980). Mandamus, under O.C.G.A et seq., has some of its own rules, including a very short timeframe for the hearing. As such, a well-prepared applicant can get its case ready, file mandamus and seek a quick hearing, leaving the local government little time to prepare. Where certiorari is the vehicle required by the local ordinance, the practitioner is faced with numerous procedural perils. The practitioner must be extremely careful no matter how inane the requirements may appear to be to follow the statutory certiorari requirements to the letter. Although it may appear nonsensical to secure a certiorari bond and a certificate of payment of costs as required by the certiorari statute, O.C.G.A. Section et seq., do so! Be sure to secure the sanction from the judge before filing and get the clerk to issue the writ when you file. Persist with local authorities who may be as unfamiliar with the rather bizarre requirements to secure the necessary documents precedent to the filing. If you do not, the consequences are flat out dismissal of your appeal. Certiorari appeals can be dismissed for 18

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