Agenda - Planning Commission - 05/04/2006

Home

Page 8 --April 25, 2006 Appeal -- Neighbor attempts to block expansion of charter school buildings School was exerapt from local zoning ordinances Citation: Ladzinske v. Allen, Supreme Cout~ of Georgia, No. S05A1866 (2006) GEORGIA (01/17/06) -- A company leased a building that was used as a charter i school in DeKalb County. In 2001, the Department of Public Works determined that the school was exempt from the local zoning ordinance. In November 2003, the company applied for a permit to construct a new building. The application was approved by the county, and the permit was posted in plain view on the property where the building was to be erected. Ladzinske, who lived across the street from the school~ complained to the county in April and May 2004. Importantly, his objections came after the con- §traction of the new building had begun. An investigation into his complaints put construction on hold, but the county ultimately aff'a'med that the school was exempt from zoning ordinances, and that the new building was a valid accessory use to the school's operation. In November 2004, Ladzinske sued, arguing that the school should not have been exempt from the zoning ordinances, and that, therefore, the pen'nit should not have been issued. The trial court found that, even though the permit had been posted at the school in a conspicuous place, Ladzinske had failed to appeal the issuance of the permit in a timely fashion. In addition, the court found that, since the company had spent over $6.4 million on the project, it had a vested fight in the permit. Ladzinske appealed. DECISION: Appeal dismissed. Although the court found Ladzinske was an aggrieved party, and was thereby able to appeal the administrative decision to ~ant the disputed building permit, he did not follow the correct appeals process. His appeal had to be dismissed. A state law required that "all appeals ... reviewing decisions of... state and local administrative agencies must be brought to [the Superior] Court by way of the discretionary appeal procedures." Additionally, the court had ruled that "[w]hen a case involve[d] ... the review of an administrative decision, a party must file an application to appeal." The intent of the law was to ~ve appellate courts discretion not to entertain a case if it had already been heard by at least two lower decision- making bodies, which could include a zoning board or commission, or a lower court. Since Ladzinske initially chose not to appeal to the zoning board, only one lower body had heard his case. The court found, however, that the "absence of a second review on the mefits [of his claim were] due to [his] own decision to 'opt out' of the administrative process." Therefore, Ladzinske had to follow the discretionary appeals process, and file for permission to appeal. Since he failed to do so, his appeal was dismissed. see also: O.S. Advertising Co. of Ga. v. Rubin, 482 S.E. 2d 295 (1997). see also: Trend Dev. Corp. v. Douglas Cou, n~_, 383 S.E. 2d 123 (1989). © 2006 Quinlan Publish,ng Group. Any reproduction is prohibited. For more information Cease catl (61~ 542-0048. 68