FIFTH DIVISION MCFADDEN, C. J., RICKMAN, P. J., and SENIOR APPELATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
March 25, 2021
In the Court of Appeals of Georgia A21A0039. THOMAS COUNTY, GEORGIA et al. v. WH GROUP 2, LLC.
RICKMAN, Presiding Judge.
Thomas County, the Thomas County Board of Commissioners, and the Thomas
County Director of Planning and Zoning (collectively, “Thomas County”) appeal the
trial court’s order granting summary judgment to WH Group 2, LLC. But before we
can resolve any substantive issues, we must consider our jurisdiction over this appeal.
As explained below, this appeal falls within OCGA § 5-6-35 (a) (1) and therefore
requires an application for discretionary review. No application was filed in this case,
and we therefore lack jurisdiction. As a result, we dismiss the appeal.
WH Group owns undeveloped property in Thomas County on which it intends
to build a subdivision that will include rental units. In accordance with a county ordinance, WH Group submitted a copy of its development plans for the property to
the Thomas County Director of Planning and Zoning. The director refused to submit
the plans to the Thomas County Board of Commissioners for approval based on his
determination that they did not meet the requirements of the “Thomas County Land
Use Standards Ordinance, Thomas County Sub-division Rules and Regulations, or
Thomas County Board of Commissioners restrictions.” In an affidavit, the director
averred that the plans were not submitted because they included rental units.
According to the director, the Board of Commissioners had specifically precluded
rental units in any development on the property when it approved a rezoning from
RM-1 (single family residential) to RM-11 (multi-family residential), and that
restriction was noted in the meeting minutes approving the rezoning.
After making a subsequent request that the director allow the plans to be
submitted to the Board of Commissioners, WH Group filed a Petition for Writ of
Mandamus and Complaint for Declaratory Judgment. The complaint sought a writ of
mandumus requiring Thomas County to process the plans submitted to the director
and a declaratory judgment decreeing that the restriction on rental units was improper
and illegal. After considering the parties’ cross-motions for summary judgment, the
trial court held that WH Group’s land was zoned RM-11, without any limiting
2 conditions, and ordered Thomas County to process WH Group’s site plan
accordingly. In reaching its decision, the trial court found that the county’s only
official zoning document did not indicate any conditions on the RM-11 designation
for WH Group’s land and rejected Thomas County’s reliance on unrecorded meeting
minutes as a basis for imposing a rental restriction. Thomas County appealed the trial
court’s decision.
Turning to the jurisdiction issue, we look to OCGA § 5-6-35 (a) (1), which
provides that appeals from decisions of the superior courts reviewing decisions of
state and local administrative agencies must be made by filing an application for
discretionary appeal. Thus, to determine whether Thomas County was required to file
an application for discretionary appeal in this case, we consider whether a “state or
local administrative agency” has made a “decision” under OCGA § 5-6-35 (a) (1) and
whether the superior court reviewed that agency decision.
First, we conclude that the director’s action was that of a “local administrative
agency” for purposes of OCGA § 5-6-35 (a) (1). “[I]f the underlying subject matter
of a mandamus petition concerns an administrative ruling which is reviewed by a
superior court, a direct appeal will not lie. And this rule applies to appeals of local
governmental department decisions even if no administrative appeal was taken.”
3 (Citations and punctuation omitted; emphasis in original.) Selke v. Carson, 295 Ga.
628, 629 (759 SE2d 853) (2014). Here, the director is the head of the county’s
planning and zoning department and his office is responsible for reviewing plans and
specifications to ensure they comply with rules or restrictions imposed by the Board
of Commissioners. When the director refused to forward WH Group’s plans to the
Board of Commissioners for failure to comply with those restrictions, he acted as a
local administrative department. See id.
Next, we conclude that the director made a “decision” in this case. A
“decision,” as the term is used in OCGA § 5-6-35 (a) (1), refers to an administrative
determination of an adjudicative, as opposed to an executive or legislative, nature.
State of Ga. v. Intl. Keystone Knights of the Ku Klux Klan, 299 Ga. 392, 403-404 (4)
(a) (788 SE2d 455) (2016). Administrative determinations of an adjudicative nature
“are immediate in application, specific in application, and commonly involve an
assessment of facts about the parties and their activities, businesses, and properties.”
(Citations and punctuation omitted.) Id. at 401 (4) (a). Such “decisions” do not,
however, require formal adjudicative procedures. Id. at 404-405 (4) (a).
The director’s action in refusing to forward WH Group’s plans to the Board of
Commissioners was a determination to reject a single submission submitted by a
4 specific applicant, and it had the immediate and particular consequence of
disallowing that applicant from obtaining the necessary approval to proceed with its
development. The decision was not based on general considerations, but was
predicated on the allowed use of a particular parcel of land and was therefore a
determination of an adjudicative nature. See Intl. Keystone Knights, 299 Ga. at 404
(a); see also Schumacher v. City of Roswell, 301 Ga. 635, 638 (2) (803 SE2d 66)
(2017) (recognizing prior Georgia Supreme Court authority that all zoning cases must
come by application for discretionary appeal and clarifying that “a ‘zoning case’ is
a case involving a ‘decision’ by an ‘administrative agency’ dealing with the zoning
or allowed use of a particular parcel of land”).
The final consideration in determining whether Thomas County was required
to file an application to appeal under OCGA § 5-6-35 (a) (1) is whether the decision
of the superior court was one that reviewed the director’s decision. We conclude that
it was such a decision.
“[W]hen we consider the nature of the proceedings in the superior court for the
purposes of OCGA § 5-6-5
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FIFTH DIVISION MCFADDEN, C. J., RICKMAN, P. J., and SENIOR APPELATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
March 25, 2021
In the Court of Appeals of Georgia A21A0039. THOMAS COUNTY, GEORGIA et al. v. WH GROUP 2, LLC.
RICKMAN, Presiding Judge.
Thomas County, the Thomas County Board of Commissioners, and the Thomas
County Director of Planning and Zoning (collectively, “Thomas County”) appeal the
trial court’s order granting summary judgment to WH Group 2, LLC. But before we
can resolve any substantive issues, we must consider our jurisdiction over this appeal.
As explained below, this appeal falls within OCGA § 5-6-35 (a) (1) and therefore
requires an application for discretionary review. No application was filed in this case,
and we therefore lack jurisdiction. As a result, we dismiss the appeal.
WH Group owns undeveloped property in Thomas County on which it intends
to build a subdivision that will include rental units. In accordance with a county ordinance, WH Group submitted a copy of its development plans for the property to
the Thomas County Director of Planning and Zoning. The director refused to submit
the plans to the Thomas County Board of Commissioners for approval based on his
determination that they did not meet the requirements of the “Thomas County Land
Use Standards Ordinance, Thomas County Sub-division Rules and Regulations, or
Thomas County Board of Commissioners restrictions.” In an affidavit, the director
averred that the plans were not submitted because they included rental units.
According to the director, the Board of Commissioners had specifically precluded
rental units in any development on the property when it approved a rezoning from
RM-1 (single family residential) to RM-11 (multi-family residential), and that
restriction was noted in the meeting minutes approving the rezoning.
After making a subsequent request that the director allow the plans to be
submitted to the Board of Commissioners, WH Group filed a Petition for Writ of
Mandamus and Complaint for Declaratory Judgment. The complaint sought a writ of
mandumus requiring Thomas County to process the plans submitted to the director
and a declaratory judgment decreeing that the restriction on rental units was improper
and illegal. After considering the parties’ cross-motions for summary judgment, the
trial court held that WH Group’s land was zoned RM-11, without any limiting
2 conditions, and ordered Thomas County to process WH Group’s site plan
accordingly. In reaching its decision, the trial court found that the county’s only
official zoning document did not indicate any conditions on the RM-11 designation
for WH Group’s land and rejected Thomas County’s reliance on unrecorded meeting
minutes as a basis for imposing a rental restriction. Thomas County appealed the trial
court’s decision.
Turning to the jurisdiction issue, we look to OCGA § 5-6-35 (a) (1), which
provides that appeals from decisions of the superior courts reviewing decisions of
state and local administrative agencies must be made by filing an application for
discretionary appeal. Thus, to determine whether Thomas County was required to file
an application for discretionary appeal in this case, we consider whether a “state or
local administrative agency” has made a “decision” under OCGA § 5-6-35 (a) (1) and
whether the superior court reviewed that agency decision.
First, we conclude that the director’s action was that of a “local administrative
agency” for purposes of OCGA § 5-6-35 (a) (1). “[I]f the underlying subject matter
of a mandamus petition concerns an administrative ruling which is reviewed by a
superior court, a direct appeal will not lie. And this rule applies to appeals of local
governmental department decisions even if no administrative appeal was taken.”
3 (Citations and punctuation omitted; emphasis in original.) Selke v. Carson, 295 Ga.
628, 629 (759 SE2d 853) (2014). Here, the director is the head of the county’s
planning and zoning department and his office is responsible for reviewing plans and
specifications to ensure they comply with rules or restrictions imposed by the Board
of Commissioners. When the director refused to forward WH Group’s plans to the
Board of Commissioners for failure to comply with those restrictions, he acted as a
local administrative department. See id.
Next, we conclude that the director made a “decision” in this case. A
“decision,” as the term is used in OCGA § 5-6-35 (a) (1), refers to an administrative
determination of an adjudicative, as opposed to an executive or legislative, nature.
State of Ga. v. Intl. Keystone Knights of the Ku Klux Klan, 299 Ga. 392, 403-404 (4)
(a) (788 SE2d 455) (2016). Administrative determinations of an adjudicative nature
“are immediate in application, specific in application, and commonly involve an
assessment of facts about the parties and their activities, businesses, and properties.”
(Citations and punctuation omitted.) Id. at 401 (4) (a). Such “decisions” do not,
however, require formal adjudicative procedures. Id. at 404-405 (4) (a).
The director’s action in refusing to forward WH Group’s plans to the Board of
Commissioners was a determination to reject a single submission submitted by a
4 specific applicant, and it had the immediate and particular consequence of
disallowing that applicant from obtaining the necessary approval to proceed with its
development. The decision was not based on general considerations, but was
predicated on the allowed use of a particular parcel of land and was therefore a
determination of an adjudicative nature. See Intl. Keystone Knights, 299 Ga. at 404
(a); see also Schumacher v. City of Roswell, 301 Ga. 635, 638 (2) (803 SE2d 66)
(2017) (recognizing prior Georgia Supreme Court authority that all zoning cases must
come by application for discretionary appeal and clarifying that “a ‘zoning case’ is
a case involving a ‘decision’ by an ‘administrative agency’ dealing with the zoning
or allowed use of a particular parcel of land”).
The final consideration in determining whether Thomas County was required
to file an application to appeal under OCGA § 5-6-35 (a) (1) is whether the decision
of the superior court was one that reviewed the director’s decision. We conclude that
it was such a decision.
“[W]hen we consider the nature of the proceedings in the superior court for the
purposes of OCGA § 5-6-5 (a) (1), we look to the substance of those proceedings, not
merely the form of the relief sought.” Intl. Keystone Knights, 299 Ga. at 407 (4) (b).
“If a party to a judicial proceeding attacks or defends the validity of an administrative
5 ruling and seeks to prevent or promote the enforcement thereof, the trial court must
necessarily ‘review’ the administrative decision to resolve the merits of the case.”
(Citation and punctuation omitted.) Id. at 408 (b).
Here, WH Group directly attacked the director’s decision in the mandamus
claim that it filed in superior court. It alleged, for example, that it had a clear legal
right to have its plans approved and to proceed with the proposed development, and
that the denial of that right was arbitrary, capricious, and unreasonable. WH Group
sought, among other relief, a writ compelling Thomas County to process and approve
the plans it submitted as consistent with the RM-11 zoning designation. The superior
court thereafter reviewed the administrative decision, granting relief to WH Group,
and Thomas County now appeals the decision of the superior court.
Under these circumstances, Thomas County was required by OCGA § 5-6-35
(a) (1) to bring its appeal by filing an application for discretionary appeal and its
failure to do so requires the dismissal of its direct appeal. See Intl. Keystone Knights,
299 Ga. at 408 (5).
Appeal dismissed. McFadden, C. J., and Senior Appellate Judge Herbert E .
Phipps concur.