Agenda - Planning Commission - 05/04/2017

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Zoning Bulletin April 25, 2017 I Volume 11 I Issue 8 even if the local ordinance does not so provide. It also addressed whether local ordinances can create means of zoning appeal to the superior court that are not authorized by state statute. The Background/Facts: Kerley Family Homes ("Kerley") was building townhouses on property it owned in the City of Cumming (the "City"). Apparently based on a surveyor mistake, Kerley discovered that it was constructing buildings closer to adjoining property than the City's Zoning Ordinance setback permitted. Kerley filed a variance ap- plication to change the required setback for some of the buildings on its property. After the City's Planning Board denied the variance applica- tion, the City's Board of Zoning Appeals ("BZA") granted it with sev- eral conditions. Thereafter, neighboring homeowners (the "Homeowners") appealed the grant of the variance to superior court. The Homeowners complaint requested a writ of mandamus to compel the BZA "to comply with the law." The City, joined by Kerley (collectively, the "Defendants"), filed a motion to dismiss the Homeowners' complaint. The Defendants argued that the Homeowner's challenge to the variance decision was required under state statutory law—OCGA § 5-4-1—to come to the superior court by a petition for certiorari. Thus, the Defendants argued that since the Homeowners' action should be dismissed because the Homeowners erred in brining the challenge by a writ of mandamus. OCGA § 5-4-1(a) provides that "[t]he writ of certiorari shall lie for the correction of errors committed by any inferior judicatory or any person exercising judicial powers, including the judge of the probate court, except in cases touching the probate of wills, granting letters testamentary, and of administration." Thus, "[c]ertiorari is not an ap- propriate remedy to review or obtain relief from the judgment, decision or action of an inferior judicatory or body rendered in the exercise of legislative, executive, or ministerial functions, as opposed to judicial or quasi-judicial powers." The parties agreed to treat the motion to dismiss as a motion for summary judgment, and the superior court ultimately denied the sum- mary judgment. In ruling that the Homeowners could proceed on their petition for mandamus, the superior court relied on the procedural direction of the Supreme Court of Georgia, which had, in prior case law, provided that "where the zoning ordinance does not provide a means of appeal from the denial of a request for a variance, the land- owner travels to superior court by writ of mandamus" (the "local - ordinance requirement"). The Defendants appealed. They argued that "the local -ordinance requirement" was unfounded and asked the appeals court to "disap- prove" it. The appeal was transferred to the Supreme Court of Georgia. DECISION: Judgment of Superior Court reversed. © 2017 Thomson Reuters 3