Moon v. Cobb County

350 S.E.2d 461, 256 Ga. 539, 1986 Ga. LEXIS 953

• Court: Supreme Court of Georgia
• Decided: December 3, 1986
• Docket: 43570
• Status: Published

Opinions

Weltner, Justice.

In a recent opinion, Dougherty County v. Webb, 256 Ga. 474 (350 SE2d 457) (1986), Justice Gregory appended the following footnote:

“In zoning matters it is of fundamental importance to distinguish between two types of cases. The procedures are different in each. Where a constitutional attack is made against a zoning ordinance, this issue must be raised before the local governing body (county commission or city council) in order to afford that body the opportunity to amend its ordinance to bring it within constitutional limits. Village Centers v. DeKalb County, 248 Ga. 177 (281 SE2d 522) (1981). That body however, does not adjudicate the constitutionality of the ordinance. Instead, it acts in its legislative capacity should it elect to amend the ordinance. Olley Valley Estates v. Fussell, 232 Ga. 779 (208 SE2d 801) (1974). The landowner who is disappointed before the local governing body next brings a suit in superior court challenging the constitutionality of the zoning ordinance. The superior court determines the law and facts from matters presented to it with no deference to decisions made below on either fact or law. The landowner must establish the unconstitutionality of the ordinance by clear and convincing evidence. Gradous v. Bd. of Commrs. of Richmond County, 256 Ga. 469 (349 SE2d 707) (1986). A landowner who loses may appeal his case to this court where our standard of review as to the facts is the clearly erroneous test. City of Roswell v. Heavy Machines, Co., 256 Ga. 472 (349 SE2d 743) (1986); Bd. of Commrs. v. Skelton, 248 Ga. 855 (286 SE2d 729) (1982). We, of course, owe no deference to the superior court as to the law.

“The other type case is that presented by this opinion [Dougherty County v. Webb], where a special permit is sought under terms set out in the ordinance. In these circumstances the landowner must present his case on its facts and the law to the local governing body. That body acts in a quasi-judicial capacity to determine the facts and apply the law. See 3 Anderson, American Law of Zoning, § 19.17 (1977); 3 Rathkopf, The Law of Zoning and Planning, § 42-10 (1979); Olley Valley Estates, Inc., supra. A disappointed landowner travels to superior court by direct appeal, if the zoning ordinance so provides, or otherwise by mandamus. City of Atlanta v. Wansley Moving &c. Co., 245 Ga. 794 (267 SE2d 234) (1980). The superior court is bound by the facts presented to the local governing body. The law, of course, is determined anew by the superior court. In a mandamus action, the landowner is entitled to relief only where he has established before the local governing body a clear legal right to the relief sought, or demonstrates to the superior court a gross abuse of discretion. Id.”

Applying the first paragraph of that footnote to the case before us, we are unable to conclude that the landowners have been able to “establish the unconstitutionality of the ordinance by clear and convincing evidence.” Dougherty County, supra, fn. 3. Gradous v. Bd. of Commrs. of Richmond County, supra. “We do not ask whether another zoning classification might be more logically and economically ‘reasonable’ or desirable on all the facts than the one attacked, because that is not the question.” Guhl v. M.E.M. Corp., 242 Ga. 354, 355 (249 SE2d 42) (1978).

Judgment affirmed.

All the Justices concur, except Smith, J., who dissents. Clarke, P. J., disqualified.