T. Eleanor Davis v. Rockdale Art Farm, Inc. ( 2020 )

SECOND DIVISION
MILLER, P. J.,
RICKMAN and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 5, 2020
In the Court of Appeals of Georgia
A19A2199. DAVIS et al. v. ROCKDALE ART FARM, INC. et al.
REESE, Judge.
The Rockdale County Board of Commissioners granted a special use permit
application filed by Appellee Art Farm Properties, LLC. Two opponents of the
application, T. Eleanor Davis and Donald F. Meyer (“the Appellants”), then filed a
petition for a writ of certiorari in the Superior Court of Rockdale County. The
superior court granted motions to dismiss the petition filed by Rockdale County and
three members of the Board of Commissioners (collectively, “the County Appellees”)
and by Art Farm Properties.1 We granted the Appellants’ application for discretionary
review. For the reasons set forth infra, we affirm the trial court’s decision.
1
The Appellants do not challenge, and we do not address, the portion of the
superior court’s order granting a motion to dismiss by Rockdale Art Farm, Inc., on
the ground that it was not a proper party to the case.
According to the certiorari petition, Art Farm Properties is the owner of three
parcels of land in Stockbridge (jointly referred to as “the Property”), zoned A-R
(agricultural-residential) pursuant to the Rockdale County Uniform Development
Ordinance (“Rockdale UDO”).2 The application sought authorization for a creative
arts learning center, or “art farm,” at which lodging would be offered for artists and
art program attendees.
After public hearings, the Board approved the application subject to certain
conditions. Specifically, the Board enacted Ordinance Number O-2018-13, “to
authorize a special use permit for [the] recreational and vacation camp[;] to impose
conditions upon said special use permit; to repeal conflicting ordinances; to set an
[October 9, 2018] effective date[.]” The “Conditions of Zoning[,]” included, inter
alia, restrictions on the time of day of outdoor activities, on the number of
consecutive nights lodgers could stay, on parking and driving, and on the use of
outdoor amplified noise.
2
See Rockdale County, Ga., Code of Ordinances, subpt. B (“Rockdale UDO”),
§§ 102-1 (title); 202-4 (division of county into districts); 206-2 (A-R agricultural-
residential district).
2
In their petition for a writ of certiorari,3 as amended on February 11, 2019, the
Appellants alleged that the Property was approximately three-tenths of a mile from
the Appellants’ property. According to the petition, the approved use of the Property
would cause the Appellants special damages, “including commercial activity noise
due to outside speakers, commercial activity light pollution due to the lighting, and
increased traffic.” Further, the Appellants alleged that they would “suffer discomfort,
loss of peace of mind, unhappiness and annoyance[,] and diminished property
values[.]” Further, because the Appellants’ property was “located at a higher
elevation than [the Property, the Appellants would] be uniquely affected by
commercial light pollution[.]”
The Appellees filed motions to dismiss the petition, arguing, inter alia, that the
Appellants lacked standing to challenge the approval of the permit. The Appellants
responded that, even if the Appellees had not waived their right to contest standing
3
The petition also sought declaratory, mandamus, and injunctive relief, and
included a request for attorney fees pursuant to OCGA § 13-6-11. The superior court
found that mandamus and injunctive relief were not procedurally available remedies,
that declaratory relief was not appropriate because the issues did not affect the
Appellants’ future plans, and that the attorney fees claim failed once the Appellants’
other claims were dismissed. The Appellants do not challenge these findings on
appeal.
3
by failing to raise the issue before the Board, the Appellants had presented evidence
of damages that were not common to the general public.
The superior court granted the Appellees’ motions to dismiss. The court
rejected the Appellants’ waiver argument:
Requiring an applicant in the position of [the Appellees] to object at the
application hearing based on standing to all who tried to speak in
opposition to a special use permit application would be both useless
under the Rockdale UDO, because the [B]oard is required to allow the
opposition to speak, and would be premature because the applicant
could not assess standing in advance of the opposition’s presentation.
The law does not require a useless act.
The superior court concluded that the Appellants had alleged only generalized
impacts and had failed to claim any unique damage that would not equally affect all
landowners in the vicinity of the Property. The court noted that it could only address
the alleged procedural deficiencies in the permit approval if the Appellants had
proper standing. Further, many of the Appellants’ complaints, “such as wastewater,
the height of the proposed buildings, the use of outdoor lighting and audio, and the
number of visitors, [were] controlled by the County permitting process.” This appeal
followed.
4
To establish standing in a zoning case, a citizen must have a
substantial interest, which must suffer substantial damage by reason of
the contested zoning change. A trial court’s decision with respect to
standing will not be reversed absent clear error, although we review de
novo any questions of law inherent in that decision.4
With these guiding principles in mind, we turn now to the Appellants’ claims of error.
1. The Appellants argue that the trial court erred in dismissing their petition
because the Appellees had waived the issue of standing by failing to raise it in the
administrative proceedings. Specifically, the Appellants contend that the grant was
a quasi-judicial, rather, than a legislative decision and was “tightly controlled by eight
objective criteria listed in the [UDO].” Thus, the trial court was bound by the facts
presented in the administrative record. Although the record on appeal does not
include transcripts of the public hearings, the Appellees do not contend that they did,
in fact, raise the issue of standing at the administrative level.
We have held that “when a party seeks an appeal by certiorari from the decision
of an administrative body to the superior court, the matter of standing can be waived
if not raised before the administrative body[,]” if that body was acting in a quasi-
4
Harden v. Banks County, 294 Ga. App. 327, 328 (1) (670 SE2d 133) (2008).
5
judicial capacity.5 If, on the other hand, the certiorari action constitutes an appeal of
a legislative or “zoning decision,” as defined in the Zoning Procedures Law,6 such
appeal is “conducted de novo, and new evidence, including expert testimony, may be
introduced.”7
“Zoning decision” means final legislative action by a local
government which results in:
(A) The adoption of a zoning ordinance;
(B) The adoption of an amendment to a zoning ordinance which changes
the text of the zoning ordinance;
(C) The adoption of an amendment to a zoning ordinance which rezones
property from one zoning classification to another;
(D) The adoption of an amendment to a zoning ordinance by a municipal
local government which zones property to be annexed into the
municipality; or
(E) The grant of a permit relating to a special use of property.8
5
Druid Hills Civic Assn. v. Buckler, 328 Ga. App. 485, 492 (3) (760 SE2d 194)
(2014).
6
OCGA § 36-66-1 et seq.
7
Buckler, 328 Ga. App. at 492 (3) (citation and punctuation omitted).
8
OCGA § 36-66-3 (4).
6
“Zoning power, vested in the county governing authority, is legislative.”9 The
purpose of a special use permit is “to authorize a type of land use potentially
incompatible with uses allowed in the particular zoning district, with issuance of the
permit predicated upon compliance with conditions set out in the ordinance, or in the
discretion of the local zoning authority.”10
Regarding special use permits, the Rockdale UDO provides that the Board’s
decision on each application:
shall be based on a discretionary determination as to whether or not the
applicant has met the [eight] criteria contained in [Rockdale UDO §
238-6 (m)], the use standards contained in [Rockdale UDO § 218-1 et
seq.] where applicable to the use proposed, the consistency of the
application with the comprehensive plan, the requirements of the zoning
district in which such use is proposed to be located, and any additional
conditions deemed necessary to ensure the compatibility of the
conditional use with the surrounding properties.11
9
RCG Properties v. City of Atlanta Bd. of Zoning Adjustment, 260 Ga. App.
355, 361 (1) (579 SE2d 782) (2003) (citation and punctuation omitted).
10
Fulton County v. Bartenfeld, 257 Ga. 766, 770 (2) (c) (363 SE2d 555)
(1988).
11
Rockdale UDO § 238-6 (k) (2).
7
Although the Appellants argue that the Board’s decision “was tightly controlled
by eight objective criteria listed in the Rockdale UDO under Section 238-6 (m)[,]”
as set forth above, the Rockdale UDO specifically directs the Board to use its
discretion and to consider other factors, including “the consistency of the application
with the comprehensive plan[.]”12
Based on the foregoing and our review of the facts alleged in the Appellants’
petition, the approval of the application for the special use permit constituted a zoning
decision or legislative action. The permit authorized a type of land use — a
recreational and vacation camp, or art farm — that was potentially incompatible with
the agricultural-residential uses allowed in the zoning district. Further, issuance of the
permit was based on a discretionary determination by the Board as to whether the
application satisfied certain criteria or conditions.13 Thus, the Appellees were not
12
Cf. City of Cummings v. Flowers, 300 Ga. 820, 824 (3) (797 SE2d 846)
(2017) (holding that a variance decision was quasi-judicial where the board’s
discretion was “tightly controlled” by the Forsyth County ordinance).
13
See Rockdale UDO § 238-6 (k) (2); see also Manning v. A. A. B. Corp., 223
Ga. 111, 115 (1) (a) (153 SE2d 561) (1967) (holding that a county board of
commissioners did not render a quasi-judicial decision in denying a conditional use
permit for construction of a shopping center).
8
required to raise the issue of standing before the Board in order to raise the issue in
superior court.14
Further, the trial court did not clearly err in finding that the Appellees raised
standing at the first available opportunity. The Rockdale UDO sets forth procedural
requirements “for any matter concerning the issuance of a special use permit or other
matter on the agenda that requires a public hearing and a vote of the board of
commissioners,”15 including the following:
The chair shall provide an opportunity for the applicant and any who
support the applicant’s petition to speak. The chair shall provide equal
opportunity for those who wish to speak in opposition to the applicant’s
petition. The chair may limit the presentation of those for and against a
petition to a reasonable length of time, but not less than ten minutes per
side.16
Regarding the right to appeal, the Rockdale UDO provides:
Any person, persons or entities jointly or severally aggrieved by any
decision of the board of commissioners regarding a special use permit
14
See Buckler, 328 Ga. App. at 492 (3); RCG Properties, 260 Ga. App. at 361
(1).
15
Rockdale UDO § 238-4 (f) (2); see also Rockdale UDO § 238-6 (g)
(requiring public hearings on applications for special use permits).
16
Rockdale UDO § 238-4 (f) (2) (d) (emphasis supplied).
9
application may take an appeal to the superior court of the county. The
appeal shall be limited to the proceedings and record of the board of
commissioners. Any appeal must be filed within 30 days of the decision
of the board of commissioners[.]17
In fact, the Appellants complained in their petition that the Board violated this
provision by not giving them “equal time” to that given to Art Farm Properties and
other proponents. As the Appellants appear to recognize, “the standing of neighbors
to enjoin rezoning granted a property owner and the standing of neighbors to be heard
by a governing authority when considering a proposed zoning change are two
separate and distinct things.”18 To hold otherwise, would, as the County Appellees
argue, require an agency, “to include as a part of its preliminary announcements, prior
to each and every meeting, that the specific agency objects to the standing of each and
every applicant and application as to any determination that may or may not be made
by the agency in order to preserve affirmative defense.”
Having determined the Appellees did not waive their right to challenge the
Appellants’ standing, we turn now to that issue.
17
Rockdale UDO, § 238-6 (s).
18
Powers Ferry Civic Assn. v. Life Ins. Co. of Ga., 250 Ga. 419, 421 (2) (297
SE2d 477) (1982) (citation and punctuation omitted).
10
2. In their second enumerated error, the Appellants contend that they “have
shown sufficient evidence to establish standing[ ]” and that the Appellees’ “agent
admitted to the damages to [the] Appellants’ Property in his testimony (unsworn).”
As noted above, the record on appeal does not contain transcripts of the public
hearings. However, even considering the amended petition most favorably to the
Appellants,19 we conclude that the trial court did not clearly err in finding that they
had failed to establish standing.20
Under the “substantial-interest-aggrieved citizen” test, “there are two steps to
standing: First, a person claiming to be aggrieved must have a substantial interest in
the zoning decision, and second, this interest must be in danger of suffering some
special damage or injury not common to all property owners similarly situated.”21
“[B]oth prongs of the standing test must be satisfied.”22
19
See Stendahl v. Cobb County, 284 Ga. 525 (1) (668 SE2d 723) (2008).
20
See Harden, 294 Ga. App. at 328 (1).
21
The Stuttering Foundation v. Glynn County, 301 Ga. 492, 494 (2) (a) (801
SE2d 793) (2017) (citations and punctuation omitted).
22
Id. at 503 (2) (b), n. 14.
11
Here, the Appellants only generally alleged that the art farm would create
noise, light, and traffic, and that it would decrease property values, without alleging
how these effects would harm them differently than other property owners in the
area.23 Although they contend that they would be uniquely affected by commercial
light pollution because their property was located at a higher elevation than the
Property, the Appellants have not shown that other nearby properties would not also
be affected by the lighting.24 Accordingly, we affirm the dismissal of their petition.
Judgment affirmed. Miller, P. J., and Rickman, J., concur.
23
See Lindsey Creek Area Civic Assn. v. Consolidated Govt. of Columbus, 249
Ga. 488, 490-491 (292 SE2d 61) (1982).
24
See Miller v. Fulton County, 258 Ga. 882, 884 (2) (375 SE2d 864) (1989).
12