Agenda - Planning Commission - 05/04/2017

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April 25, 2017 I Volume 11 I Issue 8 Zoning Bulletin The Supreme Court of Georgia agreed with the Defendants, conclud- ing that the "local -ordinance requirement" must be disapproved. Local ordinances cannot create means of appeal to the superior court that are not authorized by statute, held the court. The court also held that an administrative zoning body's quasi-judicial decision comes within the scope of OCGA § 5-4-1 and thus is subject to appeal to the superior court by petition for certiorari only. Prior to this holding, the local -ordinance requirement had directed that a BZA's quasi-judicial decision may be appealed by certiorari only if the City's Zoning Ordinance so provided. Under the local -ordinance requirement, when the zoning ordinance failed to prescribe a method for judicial review, mandamus was deemed to be the proper method to appeal a variance decision. The court determined that an evaluation of factors weighed "strongly in favor of disapproving the local -ordinance requirement." The court found that the local -ordinance requirement conflicted with OCGA § 5-4-1 and the court's interpretation and ap- plication of that statute in non -zoning contexts. "The most troubling consequence of the local -ordinance requirement," said the court, "is that it allows local ordinances to effectively preempt the general certio- rari statute [OCGA § 5-4-1]." The court explained that "scheme does not comport with our Constitution, under which general laws are supreme over local ordinances, including in the field of zoning." "[J]ust as a local government cannot control by ordinance whether a direct ap- peal may be brought in the superior court, neither can a local govern- ment control by ordinance whether certiorari may be brought in the superior court under OCGA § 5-4-1," concluded the court. With regard to the facts of the case at hand, the court found that the BZA's variance decision was quasi-judicial. The variance decision "required the zoning board to `determine[ ] the facts and appl[y] the ordinance's legal standards to them,' which is a `decision -making pro- cess . . . akin to a judicial act,' " found the court. The court addition- ally noted that the variance decision was clearly quasi-judicial here because the BZA's discretion was "tightly controlled by the ordinance." Whenever a variance issue was brought to the BZA, §§ 113-48 and 113-49 of the Zoning Ordinance required that the BZA "hold a hearing that is open to the public, give 'due notice to the aggrieved party' of the hearing, and inform all parties of its decision in writing within a rea- sonable time." The Homeowners had argued that the BZA's decision was not quasi- judicial and thus not required to be appealed by petition for certiorari. The Homeowners had argued that because the BZA "disregarded" conditions of the Zoning Ordinance related to variances, the BZA "actu- ally exercised their legislative power by granting a variance that was not permitted under the current zoning regulations." The Supreme Court of Georgia rejected that argument. The court noted that the BZA 4 © 2017 Thomson Reuters