Cobb County v. Herren

496 S.E.2d 558, 230 Ga. App. 482, 98 Fulton County D. Rep. 755, 1998 Ga. App. LEXIS 194
CourtCourt of Appeals of Georgia
DecidedFebruary 6, 1998
DocketA97A2262
StatusPublished
Cited by6 cases

This text of 496 S.E.2d 558 (Cobb County v. Herren) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cobb County v. Herren, 496 S.E.2d 558, 230 Ga. App. 482, 98 Fulton County D. Rep. 755, 1998 Ga. App. LEXIS 194 (Ga. Ct. App. 1998).

Opinions

Ruffin, Judge.

Appellees Sara Allgood Herren and her family (“the Allgood family”) filed a Petition for Certiorari in superior court seeking a review of the Cobb County Board of Zoning Appeals’ denial of the family’s request for a land disturbance permit for a mobile home park they owned. Cobb County, as respondent in certiorari, moved to dismiss the petition because it did not contain a bond or pauper’s affidavit as required by OCGA § 5-4-5 and was not endorsed with the sanction of the appropriate judge in accordance with OCGA § 5-4-3. The superior court denied the motion, permitted the Allgood family to amend their petition in accordance with OCGA § 5-4-10 and sanctioned the petition. Cobb County filed an application for interlocutory appeal, arguing that the court erred in allowing the family to amend with a late sanction beyond the 30-day time period of OCGA § 5-4-6. We granted the application, and for the following reasons, reverse the decision of the superior court.

The underlying facts are not in dispute. The Allgood family operated the Allgood mobile home park on property located on Atlanta Road in Cobb County. Although the mobile home park violated the Cobb County zoning ordinance adopted in 1972, the family’s use of the land predated the adoption of the ordinance and thus it was deemed a prior existing nonconforming use. In 1996, the Allgood family planned to renovate the park. In preparation thereof, the family removed approximately 90 percent of the existing mobile homes. Cobb County, however, refused to permit the renovations, which included the placement of approximately 140 new mobile homes, concluding that the mobile home park was no longer a legal, grandfathered, non-conforming use. The Allgood family petitioned for a land disturbance permit, which the county denied. The family appealed to the Cobb County board of zoning appeals (“the board”), which affirmed the county’s decision on November 26, 1996.

The Allgood family filed a petition for certiorari in the superior court on December 26, 1996 against the board and its individual members. As respondent in certiorari, Cobb County moved to dismiss [483]*483the petition because it was not filed within 30 days with the appropriate sanction and bond or pauper’s affidavit attached. In response to the motion to dismiss, the Allgood family admitted that they did not include a bond or pauper’s affidavit, believing that it was not required. They also admitted that the petition lacked the sanction of the appropriate judge and moved to amend the petition. On April 9, 1997, the superior court denied the county’s motion to dismiss and permitted the family to amend in accordance with OCGA § 5-4-10. However, the court declined to sanction the family’s petition for certiorari nunc pro tunc to December 26, 1996. On May 5, 1997, the superior court sanctioned the petition for certiorari, together with the amendments permitted by the April 9 order.

The issue presented in this appeal is whether the failure to obtain the requisite sanction from the appropriate judge is an amendable defect in certiorari proceedings. We find that it is not amendable if the 30-day time requirement for applying for certiorari under OCGA § 5-4-6 (a) has expired.

Initially, we note that the Allgood family properly sought review of the board’s denial of the land disturbance permit by petitioning for a writ of certiorari. Section 134-96 of the Cobb County Zoning Ordinance provides that “[a]ny person or persons severally or jointly aggrieved by any decision of the board of zoning appeals may take an appeal to the superior court. The appeal to the superior court shall be by writ of certiorari.” See also Jackson v. Spalding County, 265 Ga. 792 (1) (462 SE2d 361) (1995) (county can specify means of judicial review of zoning matters, including denials of applications for variances and conditional use permits); Dougherty County v. Webb, 256 Ga. 474 (1) (350 SE2d 457) (1986).

To obtain a writ of certiorari, an aggrieved party, such as the All-good family, must petition the superior court for the county in which the case was tried, setting forth plainly and distinctly the errors complained of. OCGA § 5-4-3. Furthermore, “[a]ll writs of certiorari shall be applied for within 30 days after the final determination of the case in which the error is alleged to have been committed. Applications made after 30 days are not timely and shall be dismissed by the court.” OCGA § 5-4-6 (a). The language of OCGA § 5-4-6 is “certain, positive, and unequivocal.” Hitt v. City of Atlanta, 103 Ga. App. 717, 718 (120 SE2d 339) (1961) (applying substantially similar language of former Code Ann. § 19-209).

Viability of a petition for a writ of certiorari is also contingent upon the party obtaining the sanction of the appropriate judge. “[Upon] the filing of the petition in the office of the clerk of the superior court, with the sanction of the appropriate judge endorsed thereon, together with the bond or affidavit... it shall be the duty of the clerk to issue a writ of certiorari.” (Emphasis supplied.) OCGA [484]*484§ 5-4-3. Absent the sanction, the clerk of the superior court has no authority to either file the application for certiorari or issue the writ. Bellew v. State Hwy. Dept., 127 Ga. App. 301 (193 SE2d 202) (1972). Sanctioning is an integral part of the application for certiorari and without it, the certiorari process cannot move forward.

Moreover, a superior court judge is not vested with judicial discretion to grant or deny a sanction of a petition for certiorari when that petition is presented to the judge for sanction more than 30 days after the final determination of the underlying case. Hitt, supra at 718; see also Williams v. Brownlee, 147 Ga. App. 831 (250 SE2d 567) (1978) (writ sanctioned and issued more than 30 days from the date of the board’s decision was properly dismissed for failure to comply with statutory deadline); Goldstein v. Smith, 141 Ga. App. 493, 494 (2) (233 SE2d 864) (1977) (amendment to petition containing a true petition for writ of certiorari and a sanction filed after the 30 days had run did not save the petition from dismissal). To hold that the judge had such discretion would amount to rewriting OCGA § 5-4-6. See Hitt, supra. Accordingly, in the instant case, the superior court judge had no discretion to sanction the Allgood family’s petition for a writ of certiorari after the 30-day statutory deadline had run.

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Cite This Page — Counsel Stack

Bluebook (online)
496 S.E.2d 558, 230 Ga. App. 482, 98 Fulton County D. Rep. 755, 1998 Ga. App. LEXIS 194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cobb-county-v-herren-gactapp-1998.