LIVE OAK GROUP, LLC v. CITY OF TYBEE ISLAND, GEORGIA ( 2016 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 08, 2016
The Court of Appeals hereby passes the following order:
A17A0097. LIVE OAK GROUP, LLC v. THE CITY OF TYBEE ISLAND,
GEORGIA et al.
Live Oak Group, LLC sought a planned unit development amendment from
the City of Tybee Island, Georgia, and the members of its city council. After the City
denied the amendment, Live Oak filed a “Zoning Appeal and Petition for Writ of
Mandamus” in the superior court, which granted summary judgment to Live Oak as
to its claim for inverse condemnation and denied summary judgment to the City on
the same claim. The superior court also denied Live Oak’s federal takings claim
without addressing the merits. On appeal, this Court held that the superior court erred
in granting summary judgment to Live Oak on its inverse condemnation claim and
denying summary judgment to the City on that ground. See City of Tybee Island v.
Live Oak Group, LLC, 324 Ga. App. 476 (751 SE2d 123) (2014). In addition, this
Court concluded that the superior court erred in denying Live Oak’s federal takings
claim and remanded the case for consideration of that claim. See id. On remand, the
superior court granted summary judgment in favor of the City on Live Oak’s takings
claim. Live Oak then filed this direct appeal. We, however, lack jurisdiction.
All appeals in zoning cases require an application for discretionary appeal. See
OCGA § 5-6-35 (a) (1); Nelson v. Fulton County, 262 Ga. App. 382, 382-383 (585
SE2d 710) (2003); see also Dunlap v. City of Atlanta, 272 Ga. 523, 523-524 (531
SE2d 702) (2000) (an application for discretionary appeal is required even when a
party seeks to attack an administrative decision by way of filing suit in superior court,
rather than by seeking an administrative appeal); O S Advertising Co. of Ga., Inc. v.
Rubin, 267 Ga. 723, 724 (1) (482 SE2d 295) (1997) (“If the underlying subject-matter
is zoning, an application for discretionary appeal must be filed.”). Live Oak’s failure
to follow the proper appellate procedure deprives us of jurisdiction over this appeal,
which is hereby DISMISSED.
Court of Appeals of the State of Georgia
09/08/2016
Clerk’s Office, Atlanta,____________________
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.