O S Advertising Co. of Georgia, Inc. v. Rubin , 267 Ga. 723 ( 1997 )

Fletcher, Presiding Justice.

The issue in this case is whether persons who challenge the constitutionality of zoning ordinances should have a right of direct appeal. Adhering to our decision in Trend Development Corp. v. Douglas County,¹ we reiterate that all appeals in zoning cases require an application and dismiss this direct appeal for lack of jurisdiction.

O S Advertising built a nonconforming outdoor advertising sign and applied for a variance from the City of Atlanta Board of Zoning Adjustment. In its variance application, O S Advertising alleged that several city ordinances regulating signs were unconstitutional both on their face and as applied to its sign. The board denied the variance. After the superior court upheld the board’s decision, we granted O S Advertising’s first application for a discretionary appeal. On appeal, we affirmed the decision denying the variance, but remanded for the trial court to consider O S Advertising’s facial challenge to the city sign ordinances.² On remand, the superior court ruled that some regulations were unconstitutional, but upheld others. O S Advertising filed both an application for discretionary appeal and a direct appeal. This Court denied the application because there was no reversible error and dismissed the direct appeal based on Trend. On motion for reconsideration, we vacated the dismissal order and reinstated this direct appeal to consider the jurisdictional issue.

1. OCGA § 5-6-35 (a) (1) provides that appeals from superior courts reviewing decisions of local administrative agencies require an application for appeal. In Trend, we held that appeals in zoning cases required an application because they were appeals from court decisions “reviewing a decision of an administrative agency within the meaning of OCGA § 5-6-35 (a) (l).”³ This holding established a bright-line rule for both litigants and the appellate courts. If the underlying subject-matter is zoning, an application for discretionary appeal must be filed.⁴

This procedure does not deny a party in a zoning case the right to appellate review.⁵ It merely permits this Court to consider the appellant’s enumerations of error in a streamlined process that omits oral arguments and a written opinion. In reviewing discretionary applications for appeals, our rules require us to grant the application when the trial court commits reversible error or a precedent is desirable.⁶

2. Relying on the rationale in Trend, O S Advertising argues that this Court should make an exception to the rule requiring an application in all appeals involving zoning. It argues that the rule in Trend should not apply where the superior court addresses a claim challenging the constitutionality of a zoning ordinance on its face. In that situation, it contends the superior court is not acting as a reviewing court ruling on an appeal from an administrative agency, but rather is acting as a trial court hearing a facial constitutional challenge to a city ordinance.

Although there are fallacies in the rationale in Trend,¹ we decline to create an exception to its holding in this case. O S Advertising’s proposed distinction would create confusion concerning the proper procedure to follow in appeals in zoning cases without providing property owners or zoning authorities any additional review of their substantive claims. Moreover, it would permit litigants to control the appellate procedure, contrary to legislative intent, by raising a facial challenge to every zoning ordinance.^{7 8} More problematic, it would impose on both the parties and this Court the difficult task of determining whether the superior court acted in its role as a “trial court” or as a “reviewing court” in each zoning case. As a result, parties would file both an application and a direct appeal to avoid the risk of reaching a conclusion different from this Court and thus losing their right to any appellate review. Because the decision in Trend provides a clear, efficient, and fair rule, we follow it here and dismiss this direct appeal.

Appeal dismissed.

All the Justices concur, except Carley, J., who dissents.

1 259 Ga. 425 (383 SE2d 123) (1989).

2 OS Advertising Co. v. Rubin, 263 Ga. 761 (438 SE2d 907) (1994).

3 259 Ga. at 425.

4 See Alexander v. DeKalb County, 264 Ga. 362, n. 4 (444 SE2d 743) (1994).

5 See Leah J. Sears, “Discretionary Appeals Work Well in. Domestic Relations Cases,” 105 Pulton Co. Daily Rep. 246 at 1-2 (Dec. 19, 1994) (describing court’s process in reviewing discretionary applications).

6 Ga. Sup. Ct. R. 33.

7 See, e.g., Shockley v. Fayette County, 260 Ga. 489, 491 (396 SE2d 883) (1990) (Hunt, J., concurring).

8 See Scruggs v. Dept. of Human Resources, 261 Ga. 587, 588 (408 SE2d 103) (1991) (“The legislature did not intend for parties to regulate litigation.”); cf. Rebich v. Miles, 264 Ga. 467, 469 (448 SE2d 192) (1994) (underlying subject-matter generally controls in determining proper appellate procedure to prevent parties from governing process).