In Re Application of the City of Barnesville ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 17, 2018
The Court of Appeals hereby passes the following order:
A19D0074. IN RE APPLICATION OF THE CITY OF BARNESVILLE,
GEORGIA.
The City of Barnesville, Georgia, applied to the superior court for a permit
under the Abandoned Cemeteries and Burial Grounds Act, OCGA §§ 36-72-1 et seq.,
to disinter and relocate human remains and burial objects in a cemetery located on
property owned by the City. The superior court denied the application, and the City
now seeks discretionary review. The City’s application brief does not explain why the
City filed a discretionary application, and based on the materials before us, no
provision of OCGA § 5-6-35 applies here.1 Thus, it appears that the City has a right
of direct appeal pursuant to OCGA § 5-6-34 (a) (1).
If a party timely applies for discretionary review of a directly appealable order,
1
According to the parties’ application briefs, the City initially directed its
application to the Lamar County Commission, which granted the requested permit.
Descendants of people buried in the cemetery then appealed to the superior court. The
superior court vacated the commission’s ruling on the ground that the City was
required to file its application in the superior court, not with the county commission.
See OCGA § 36-72-14 (a) (“the superior court having jurisdiction over the real
property wherein the cemetery or burial ground is located shall have exclusive
jurisdiction over [a] permit application” filed by “any agency, authority, or political
subdivision of the state”). The City then re-filed its application in the superior court.
Based on this sequence of events, the City may have believed that OCGA § 5-6-35
(a) (1), governing appeals from superior court orders reviewing the decisions of lower
tribunals, applied here, requiring a discretionary application in this case. But that
Code section is not applicable because the superior court order to be appealed did not
review the county commission’s decision.
we will grant the application under OCGA § 5-6-35 (j). Thus, this application for
discretionary appeal is hereby GRANTED. The City shall have ten days from the date
of this order to file a notice of appeal, if it has not already done so. The clerk of the
superior court is directed to include a copy of this order in the appeal record
transmitted to this Court.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
09/17/2018
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.