Jackson v. Spalding County , 265 Ga. 792 ( 1995 )

Carley, Justice,

dissenting.

Under the applicable zoning ordinance of Spalding County, the denial by the Board of Appeals of an application for a variance is to be appealed by filing a petition for certiorari in the superior court. The majority holds that this ordinance is constitutional. In my opinion, the ordinance is unconstitutional and I must, therefore, respectfully dissent.

It has long been recognized that certiorari is a limited remedy for obtaining judicial review of the decision of an inferior judicatory or body rendered in the exercise of its judicial or quasi-judicial powers. City of Cedartown v. Pickett, 193 Ga. 840, 842 (1) (20 SE2d 263) (1942); Bryant v. Bd. of Ed. of Colquitt County, 156 Ga. 688 (1) (a) (119 SE 601) (1923). Because Art. I, Sec. II, Par. III of our constitution provides that the legislative, judicial, and executive powers “shall remain forever separate and distinct,” an ordinance which purports to authorize certiorari as a means to obtain judicial review of the decision rendered by an inferior judicatory or body other than in the exercise of its judicial or quasi-judicial powers would be unconstitutional. Presnell v. McCollum, 112 Ga. App. 579, 580 (3) (145 SE2d 770) (1965). See also Bentley v. Chastain, 242 Ga. 348, 351 (1) (249 SE2d 38) (1978). Presnell establishes the rule that certiorari is not a method of review “available in a zoning case where the discretion of the court might be interposed for that of the governing authority acting on its own discretion in a legislative or ministerial capacity.” Owens v. Cobb County, 230 Ga. 707, 708 (198 SE2d 846) (1973). Accordingly, resolution of these appeals is dependent upon whether the denial of an application for a zoning variance is within the Board of Appeals’ exercise of its judicial or quasi-judicial powers. If it was, the ordinance authorizing certiorari as the means of obtaining judicial review of that decision would not violate the constitutional mandate of separation of powers. If it was not, the ordinance would violate that constitutional mandate.

It is clear that, in denying an application for a zoning variance, the Board of Appeals exercises administrative, rather than judicial or quasi-judicial, powers. Bentley v. Chastain, supra at 349 (1). Because the denial of an application for a variance of a zoning ordinance is administrative, rather than judicial or quasi-judicial, judicial review by means of certiorari is not available. International Funeral Svcs. v. DeKalb County, 244 Ga. 707, 709 (1) (261 SE2d 625) (1979). See also South View Cemetery Assn. v. Hailey, 199 Ga. 478, 482 (5) (34 SE2d 863) (1945). Administrative

decisions are not to be taken lightly or minimized by the judiciary. Review overbroad in scope would have the effect of substituting the judgment of a judge or jury for that of the agency, thereby nullifying the benefits of legislative delegation to a specialized body. Since the agency is exercising neither judicial nor legislative, but administrative, powers, the separation of powers doctrine along with this policy of respect must play a role in determining the nature of the review of agency decisions by the courts. . . . Therefore, the only review authorized is that inherent in the power of the judiciary: Whether the agency acted beyond the discretionary powers conferred upon it, abused its discretion, or acted arbitrarily or capriciously with regard to an individual’s constitutional rights.

Bentley v. Chastain, supra at 351, 352 (1). Thus, the only constitutionally proper means for obtaining judicial review of the administrative denial of an application for a zoning variance is through a proceeding seeking a writ of mandamus requiring the issuance of the variance. International Funeral Svcs. v. DeKalb County, supra at 709 (1).

In footnote 3 of its opinion, the majority cites three cases as authority for the proposition “that judicial review by certiorari is an appropriate remedy for reviewing a zoning board’s denial of a special use permit.” However, none of those cases is controlling authority for that proposition. In Martin Marietta Corp. v. Macon-Bibb County Planning &c. Comm., 235 Ga. 689 (221 SE2d 401) (1975), the property owner had sought both mandamus and certiorari “in an abundance of precaution because of legal procedural uncertainties” and, in both cases, the superior court ruled on the merits. On appeal, this court likewise merely addressed the merits of both cases without anywhere discussing the appropriateness of either remedy. The majority’s reliance upon Dougherty County v. Webb, 256 Ga. 474, 477 (2), fn. 3 (350 SE2d 457) (1986) is also misplaced. The language in that case stating that if an ordinance so provides, review may be had by a procedure other than mandamus is clearly obiter dictum. The majority also relies upon Manning v. A. A. B. Corp., 223 Ga. 111, 115 (1) (a) (153 SE2d 561) (1967), but has misconstrued its holding. That case specifically rejects the contention that certiorari was “the exclusive remedy.” Manning further holds that “the board of commissioners was not acting as a judicial body, and it did not render a judicial or quasi-judicial judgment” and, citing Presnell, concludes that mandamus is “the proper remedy.” Thus, Manning is authority for exactly the opposite principle than that for which the majority cites it.

In any event, this case deals with the denial of a variance, not the denial of a special use permit. Unlike any case cited by the majority, International Funeral Svcs. and Bentley v. Chastain do constitute authority for the principle that the denial of an application for a variance is an administrative, not a judicial or quasi-judicial, decision and that certiorari is not, therefore, applicable. The majority at 794 acknowledges that “some language in the Bentley decision supports that view,” but, citing Shockley v. Fayette County, 260 Ga. 489 (396 SE2d 883) (1990), concludes that “this court has adopted a different interpretation. Indeed, Shockley, supra at 491, states that “[w]e have recognized that the powers delegated to a board of zoning appeals are neither judicial nor legislative, but are quasi-judicial and quasi-legislative. Bentley v. Chastain, [supra].” What the majority fails to recognize, however, is that this statement in Shockley is not only obiter dictum, but is also an erroneous interpretation of the holding in Bentley. In Bentley, supra at 349 (1), footnote 3 sets forth the argument of one party that the board of zoning appeals exercises legislative powers and footnote 4 sets forth the argument of the other party that the board exercises judicial powers. After setting forth these arguments, this Court held:

Decided September 25, 1995 Reconsideration denied October 27, 1995.

We do not find either argument controlling. The Board of Zoning Appeals is an administrative agency and its powers are distinct from the legislative and judicial powers established in the Georgia Constitution.

Bentley v. Chastain, supra at 349 (1). Thus, Shockley erroneously relied upon the footnotes in Bentley, which set forth the rejected arguments regarding the exercise by the board of zoning appeals of legislative or judicial powers, and ignored the actual holding of Bentley, which was that the board exercises only administrative powers. Accordingly, insofar as Shockley’s interpretation of Bentley is no more than erroneous obiter dictum, it does not constitute authority for the principle that the denial of an application for a variance is a judicial or quasi-judicial decision.

The majority further states that its “ruling today is consistent with Bentley that a superior court may not engage in a de novo review of a zoning appeals board’s decision.” It is axiomatic that a superior court may not engage in a de novo review when reviewing a decision by means of certiorari. Therefore, it is of no consequence that the majority’s holding is consistent with Bentley in that regard. What is of significant consequence, however, is that the majority’s holding is inconsistent with Bentley and International Funeral Sues, insofar as those decisions hold that a board of zoning appeals exercises administrative, rather than judicial, powers and that certiorari is not, therefore, an available remedy to review a decision by the board. Under those cases, the Spalding County ordinance is unconstitutional insofar as it purports to authorize certiorari as a means to obtain judicial review of the Board of Appeals’ denial of an application for a zoning variance. Therefore, I must respectfully dissent to the judgment and to the disapproval of International Funeral Svcs., supra.

I am authorized to state that Justice Thompson joins in this dissent.

Wilson, Brock & Irby, Dick Wilson, Jr., J. Stuart Teague, Jr., for appellants. Jenkins & Nelson, Frank E. Jenkins III, Peter R. Olson, for ap-pellees.