Monumedia II, LLC v. Georgia Department of Transportation , 343 Ga. App. 49 ( 2017 )

FOURTH DIVISION
DILLARD, C. J.,
RAY, P. J., and SELF, J.
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
October 4, 2017
In the Court of Appeals of Georgia
A17A0647. MONUMEDIA II, LLC v. GEORGIA DEPARTMENT
OF TRANSPORTATION.
A17A1127. MONUMEDIA II, LLC v. CITY OF ATLANTA
BOARD OF ZONING ADJUSTMENT, et al.
DILLARD, Chief Judge.
In 2013, Monumedia, II, LLC (“Monumedia”) installed three signs inside the
windows of a building located in the Buckhead area of Atlanta that were visible to
traffic on Peachtree Road. Not long after that, the City of Atlanta informed
Monumedia that the signs violated City ordinances. And one month later, the Georgia
Department of Transportation (“DOT”) similarly informed Monumedia that the signs
violated the Georgia Outdoor Advertising Control Act (“OACA”), OCGA § 32-6-70
et seq. Monumedia challenged the City’s decision before the Board of Zoning
Adjustment (“BZA”), and challenged the DOT’s decision before an administrative
law judge (“ALJ”) from the Office of State Administrative Hearings (“OSAH”), but
was unsuccessful on both fronts. Monumedia then, separately, sought review of these
decisions in the Superior Court of Fulton County, which affirmed the agencies’
decisions in both cases.
Monumedia now appeals both decisions, and because these cases arise from the
same set of facts, we have consolidated the separate appeals for review. Specifically,
in Case No. A17A0647, Monumedia contends that the superior court erred in
concluding that OACA regulates signs located inside a building, that its signs can be
characterized as “multiple message signs” under the Act, and that the DOT did not
bear the burden of showing that an exemption to the permit requirement under the Act
was not applicable. In Case No. A17A1127, Monumedia contends that the superior
court erred in concluding that the City’s sign ordinances prohibited its signs, that the
City’s violation of the Open Meetings Act did not invalidate the BZA’s ruling, and
that ex parte contacts between City officials and the BZA did not invalidate the
latter’s ruling. For the reasons set forth infra, we reverse in both cases.
The facts relevant to these cases are not significantly disputed. In February
2013, Monumedia began installing three light-emitting diode signs inside windows
of the Franco building located at 3075 Peachtree Road in the Buckhead area of
2
Atlanta. After obtaining building and electrical permits from the City, Monumedia
completed installation of the signs in August 2013 and began using them at that time.
Although the City did not require Monumedia to obtain a permit for the signs prior
to their installation, on January 15, 2014, the City notified Monumedia that its signs
in the Franco building violated the City sign ordinance applicable to that zoning
district, and it ordered Monumedia to remove the signs within 15 days or face fines
for failure to do so. On February 18, 2014, the DOT similarly notified Monumedia
that two of the signs in the Franco building visible to traffic on Peachtree Road
violated the OACA and, thus, directed it to remove them.
Monumedia challenged both the City and the DOT’s determinations. With
regard to the City’s determination, Monumedia appealed to the BZA, arguing that the
City’s relevant sign ordinance did not require permits for signs visible from the
outside but located inside a building. On June 5, 2014, the BZA held an evidentiary
hearing on the matter, and on June 10, 2014, it issued a letter denying Monumedia’s
challenge. Subsequently, Monumedia sought judicial review of that decision in the
Fulton County Superior Court. But the case was stayed pending Monumedia’s
simultaneous challenge of the DOT’s determination that the signs also violated the
OACA.
3
In the meantime, as noted supra, Monumedia also challenged the DOT’s
determination that its signs were prohibited, and therefore, the DOT submitted the
issue to an OSAH ALJ. On February 16, 2015, the ALJ conducted an evidentiary
hearing on the matter, and on November 12, 2015, she issued an initial decision
ruling that Monumedia’s signs violated the OACA and had to be removed. On
January 8, 2016, the DOT issued a final agency decision, adopting the ALJ’s ruling.
Monumedia then sought judicial review in the Fulton County Superior Court, where
its appeal of the BZA decision was pending.
Thereafter, all the parties filed briefs, and on May 19, 2016, the superior court
held a hearing on Monumedia’s challenge to both the BZA and DOT’s rulings. On
July 15, 2016, the superior court issued two final orders, affirming the BZA and
DOT’s decisions prohibiting the signs. Subsequently, Monumedia filed applications
for discretionary appeal in both cases, which we granted. These appeals follow.
Case No. A17A0647
We first address Monumedia’s challenge to the superior court’s ruling
affirming the DOT’s decision that the signs in question are prohibited by the OACA.
In doing so, we note that the Supreme Court of Georgia has held that
4
judicial review of an administrative decision is a two-step process:
because the court reviewing an administrative decision must accept the
agency’s findings of fact if there is any evidence to support the findings,
the court must first determine if there is evidence to support the factual
findings; the court then is statutorily required to examine the soundness
of the conclusions of law drawn from the findings of fact supported by
any evidence.1
But importantly, both the superior court and this Court “review conclusions of law
de novo.”2 Bearing these guiding principles in mind, we turn now to Monumedia’s
specific claims of error in this appeal.
1. Monumedia contends that the superior court erred in concluding that the
OACA regulates, and thus prohibits, signs located inside a building. We agree.
Tasked with interpreting statutory language, we necessarily begin our analysis
with “familiar and binding canons of construction.”3 Indeed, in considering the
meaning of a statute, our charge as an appellate court is to “presume that the General
1
Handel v. Powell, 284 Ga. 550, 552 (670 SE2d 62) (2008) (punctuation
omitted).
2
Ga. Dep’t of Agric. v. Brown, 270 Ga. App. 646, 649 (2) (607 SE2d 259)
(2004) (punctuation omitted); accord Welcker v. Ga. Bd. of Examiners of
Psychologists, 340 Ga. App. 853, 854-55 (1) (798 SE2d 368) (2017).
3
Holcomb v. Long, 329 Ga. App. 515, 517 (1) (765 SE2d 687) (2014); accord
In the Interest of L. T., 325 Ga. App. 590, 591 (754 SE2d 380) (2014).
5
Assembly meant what it said and said what it meant.”4 And toward that end, we must
afford the statutory text its plain and ordinary meaning,5 consider the text
contextually,6 read the text “in its most natural and reasonable way, as an ordinary
speaker of the English language would,”7 and seek to “avoid a construction that
4
Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013)
(punctuation omitted); accord Holcomb, 329 Ga. App. at 517 (1); Martinez v. State,
325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013).
5
See Holcomb, 329 Ga. App. at 517 (1); accord Deal, 294 Ga. at 172 (1) (a);
see also Tibbles v. Teachers Retirement Sys. of Ga., 297 Ga. 557, 558 (1) (775 SE2d
527) (2015) (“A statute draws it meaning, of course, from its text.”) (punctuation and
citation omitted); Chan v. Ellis, 296 Ga. 838, 839 (770 SE2d 851) (2015) (same);
State v. Able, 321 Ga. App. 632, 636 (742 SE2d 149) (2013) (“A judge is charged
with interpreting the law in accordance with the original and/or plain meaning of the
text at issue (and all that the text fairly implies). . . .”); Singletary v. State, 310 Ga.
App. 570, 572 (713 SE2d 698) (2011) (“In construing these statutes, we apply the
fundamental rules of statutory construction that require us to construe the statutes
according to their terms, [and] to give words their plain and ordinary meaning. . . .”
(punctuation omitted)).
6
See Arizona v. Inter Tribal Council of Arizona, Inc., ___U.S. ___ (II) (B) (133
SCt. 2247, 186 LE2d 239) (2013) (“Words that can have more than one meaning are
given content, however, by their surroundings.” (punctuation omitted)); Deal, 294
Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it
appears[.]”); accord Hendry v. Hendry, 292 Ga. 1, 3 (1) (734 SE2d 46) (2012);
Holcomb, 329 Ga. App. at 517 (1); see also Tibbles, 297 Ga. at 558(1) (“The common
and customary usages of the words are important, but so is their context.”)
(punctuation and citation omitted); Chan, 296 Ga. at 839 (1) (same).
7
Deal, 294 Ga. at 172-73 (1) (a); accord Holcomb, 329 Ga. App. at 518 (1).
6
makes some language mere surplusage.”8 In summary, when the language of a statute
is “plain and susceptible of only one natural and reasonable construction, courts must
construe the statute accordingly.”9
Turning to the statute at issue, in explaining the legislative policy behind the
OACA, OCGA § 32-6-70 (a) provides:
The General Assembly declares it to be the policy of this state that the
erection or maintenance of outdoor advertising in areas adjacent to the
rights of way of roads of the state highway system, which roads are also
a part of the interstate and primary systems of highways within the state,
shall be regulated in accordance with the terms of this part and the
regulations promulgated by the commissioner pursuant thereto and that
all outdoor advertising which does not conform to the requirements of
this part is a public nuisance.10
And in defining the types of signs to be regulated, OCGA § 32-6-71 (14) provides:
8
In the Interest of L.T., 325 Ga. App. at 592 (punctuation omitted); accord
Holcomb, 329 Ga. App. at 518 (1).
9
Holcomb, 329 Ga. App. at 518 (1) (punctuation omitted); accord Luangkhot
v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013); see also Deal, 294 Ga. at 173
(1) (a) (“[I]f the statutory text is clear and unambiguous, we attribute to the statute its
plain meaning, and our search for statutory meaning is at an end.” (punctuation
omitted)).
10
(Emphasis supplied).
7
“Outdoor advertising” or “sign” means any outdoor sign, light, display,
device, figure, painting, drawing, message, placard, poster, billboard, or
other thing which is designed, intended, or used to advertise or inform,
any part of the advertising or information contents of which are visible
from any place on the main traveled way of the interstate or primary
highway systems.
Construing this statute according to its plain meaning, the word “outdoor” is
commonly understood as “[t]hat is done, exists, lives, or is used, out of doors, without
the house, or in the open air.”11 And applying the rules of English grammar,12 the term
“outdoor” in this statute modifies “sign,” as well as all the other enumerated terms.
Indeed, as Monumedia’s expert in English grammar explained during the hearing
before the ALJ, the “word ‘outdoor’ controls [the] whole list, including the phrase
‘other thing.’” But here, it is undisputed that Monumedia’s signs are located inside
the Franco building. Given these particular circumstances, Monumedia’s signs cannot
11
The Compact Oxford English Dictionary 1234 (2d ed. 1991); see Couch v.
Red Roof Inns, Inc., 291 Ga. 359, 361 (1) (729 SE2d 378) (2012) (looking to
dictionary for plain and ordinary meaning of word); A. A. Prof’l Bail v. State, 265 Ga.
App. 42, 44 (592 SE2d 866) (2004) (same).
12
See Deal, 294 Ga. at 173 (1) (a) (noting that in construing statutory text,
“courts sometimes refer to the rules of English grammar . . . inasmuch as those rules
are the guideposts by which ordinary speakers of the English language commonly
structure their words, and the legislature is presumed to know the rules of grammar”
(citation and punctuation omitted)).
8
be characterized as outdoor signs that are subject to regulation or prohibition under
the OACA.13
Nevertheless, the DOT argues that the adjective “other” immediately preceding
the word “thing” in OCGA § 32-6-71 (14) displaces the adjective “outdoor” as a
modifier of “thing,” and therefore, “other thing” can be construed as including indoor
signs. But putting aside the fact that this construction tortures logic and the rules of
English grammar, the DOT’s attempt to task the term “other” with such heavy lifting
runs afoul of the statutory-construction canon “ejusdem generis,” which provides:
[W]hen a statute or document enumerates by name several particular
things, and concludes with a general term of enlargement, this latter
term is to be construed as being ejusdem generis [i.e., of the same kind
or class] with the things specifically named, unless, of course, there is
something to show that a wider sense was intended.14
13
See Ne. Ga. Cancer Care, LLC v. Blue Cross and Blue Shield of Ga., Inc.,
315 Ga. App. 521, 531-32 (1) (b) (i) (726 SE2d 714) (2012) (holding that statute
requiring health insurance plan to accept any qualified medical provider who was
willing to accept terms or conditions of plan did not apply to for-profit health
maintenance organization because statute by its terms was inapplicable to for-profit
entities).
14
Ctr. for a Sustainable Coast v. Coastal Marshlands Prot. Comm., 284 Ga.
736, 737-38 (1) (670 SE2d 429) (2008).
9
Specifically, the word “other” will generally be read as “other such like,” so that
“persons or things therein comprised may be read as ejusdem generis with, and not
of a quality superior to or different from, those specifically enumerated.”15
Consequently, the phrase “other thing” in OCGA § 32-6-71 (14) is more
appropriately construed as referring to other modes of outdoor advertising.16
15
Standard Oil Co. v. Swanson, 121 Ga. 412, 415 (49 S.E. 262) (1904) (citations
and punctuation omitted).
16
See Ctr. for a Sustainable Coast, 284 Ga. at 737-39 (1) (holding that, under
the principle of ejusdem generis, phrase “otherwise alter,” as used in statute
describing marshlands activities for which a permit must be obtained from Coastal
Marshlands Protection Committee, applies only to the extent that runoff alters the
marshlands in a direct physical manner akin to removing, filling, dredging, or
draining the marshlands and not more expansively to any upland activities that might
eventually cause runoff); Ga. Bd. of Chiropractic Examiners v. Ball, 224 Ga. 85, 89
(160 SE2d 340) (1968) (“It is a well known rule that in construing a statute where
certain acts are specified which are followed by a general expression referring to
other acts, such other acts must be of like character with those named. Ejusdem
generis is a rule of construction to ascertain and give effect to legislative intent [as
reflected in the plain meaning of the relevant text].” (punctuation omitted) (emphasis
added)); Swanson, 121 Ga. at 415 (“[When] a statute or other document enumerates
several classes of persons or things, and immediately following, and classed with
such enumeration, the clause embraces ‘other’ persons or things, the word ‘other’ will
generally be read as ‘other such like,’ so that persons or things therein comprised may
be read as ejusdem generis with, and not of a quality superior to or different from,
those specifically enumerated. This rule is well established in this State.” (citations
omitted) (emphasis added)); see also Montgomery Cty. v. Hamilton, 337 Ga. App.
500, 507 (788 SE2d 89) (2016), cert. denied (Feb. 27, 2017) (holding that the canon
of ejusdem generis applied because “each of the listed services provide for the health,
safety, or welfare of the residents of the unincorporated area.”); Longleaf Energy
10
Finally, the DOT argues that reading the phrase “other thing” to include signs
located inside of buildings is consistent with the “legislative intent” behind the
OACA, which this Court has stated “is to protect the public traveling along the
highway from distractions.”17 But regardless of whether the DOT’s construction of
the statute would better achieve the General Assembly’s aforementioned “intent”
Associates, LLC v. Friends of Chattahoochee, Inc., 298 Ga. App. 753, 759 (681 SE2d
203) (2009) (“Under the rule of statutory construction known as ‘ejusdem generis,’
when a generally described activity such as ‘otherwise is subject to regulation’
follows an enumeration of specifically described activities, the general activity will
ordinarily be construed as referring to the same kind or class of activity as the
preceding specific activities, unless something shows that a wider sense was
intended.” (punctuation omitted) (emphasis added)); ANTONIN SCALIA & BRYAN A.
GARNER, READING LAW: THE INTERPRETATION OF STATUTORY TEXTS 199 (1st ed.
2012) (“The principle of ejusdem generis essentially says just that: It implies the
addition of similar after the word other.”). Cf. Dep’t of Transp. v. Montgomery Tank
Lines, Inc., 276 Ga. 105, 107-08 (1) (575 SE2d 487) (2003) (holding that the phrase
of enlargement in the statute providing that “any other element of actual damages
recoverable in actions for negligence” showed that a wider sense was intended, and
thus, ejusdem generis did not control) (emphasis supplied)).
17
Eagle West, LLC v. Ga. Dep’t of Transp., 312 Ga. App. 882, 886 (720 SE2d
317) (2011) (punctuation omitted); see Holcomb, 329 Ga. App. at 518 (1) n. 15
(explaining that “[a]s a part of an act passed by the General Assembly and approved
by the governor, the [codified] preamble of a statute may properly be considered by
our courts to the extent that it sheds light on the meaning of the substantive terms
contained in the statute”). But see generally BellSouth Telecommunications, LLC v.
Cobb County, ___ Ga. App. ___ (802 SE2d 686, 695-97) (2017) (Dillard, J.,
concurring) (outlining reasons for generally disfavoring any discussion of “legislative
intent” in the context of statutory interpretation).
11
(which, for all of the reasons noted supra, we think unlikely), we are charged with
“interpreting the law in accordance with the original and/or plain meaning of the text
at issue (and all that the text fairly implies), as well as with faithfully following the
precedents established by higher courts.”18 And importantly, both our constitutional
system of government and the law of this State “prohibit the judicial branch from
amending a statute by interpreting its language so as to change the otherwise plain
and unambiguous provisions.”19 Here, under the plain meaning of its text, the OACA
only regulates outdoor advertising. Thus, the DOT’s argument that its interpretation
of the statute more effectively achieves the statute’s overall policy concerns should
18
In re Whittle, 339 Ga. App. 83, 88-89 (1) (793 SE2d 123) (2016)
(punctuation omitted).
19
Id. at 89 (1) (punctuation omitted); see also Richardson v. State, 276 Ga.
639, 640 (1) (581 SE2d 528) (2003) ( “Courts of last resort must frequently construe
the language of a statute, but such courts may not substitute by judicial interpretation
language of their own for the clear, unambiguous language of the statute, so as to
change the meaning.” (punctuation omitted)).
12
be directed toward the General Assembly, not this Court.20 Accordingly, we reverse
the superior court’s ruling.
2. Given our holding in Division 1 supra, we need not address Monumedia’s
remaining enumerations of error in Case No. A17A0647.
Case No. A17A1127
Turning to Monumedia’s challenge to the superior court’s ruling affirming the
BZA’s decision that the signs in question are prohibited by the City’s sign ordinances,
we first note “that the construction of a zoning ordinance is a question of law for the
courts.”21 And since statutes or ordinances “which restrict an owner’s right to freely
use his property for any lawful purpose are in derogation of the common law, they
must be strictly construed and never extended beyond their plain and explicit
20
See Gary v. State, 338 Ga. App. 403, 409 (2) (790 SE2d 150) (2016) (“The
remedy for this problem . . . lies with the General Assembly, not with this Court.”);
In re Whittle, 339 Ga. App. at 88 (1) (holding that if appellant’s policy arguments are
ultimately to prevail, they should be made to our General Assembly, not an appellate
court).
21
Stanfield v. Glynn Cty., 280 Ga. 785, 786 (2) (631 SE2d 374) (2006); accord
City of Dunwoody v. Discovery Practice Mgmt., 338 Ga. App. 135, 139 (2) (789 SE2d
386) (2016). The City’s sign ordinances are contained in a chapter of the City’s
zoning ordinance. See City of Atlanta Code of Ordinances § 16-28A.001 (“This
chapter shall be known and may be referred to as the ‘Sign Ordinance of the City of
Atlanta.’”).
13
terms.”22 Furthermore, any ambiguities in the language employed in zoning statutes
“should be resolved in favor of the free use of property.”23 Bearing these guiding
principles in mind, we will now address Monumedia’s specific claims of error in this
appeal.
3. Monumedia contends that the superior court erred in concluding that the
City’s sign ordinances prohibited its signs located inside the Franco building. Once
again, we agree.
As the Supreme Court of Georgia has held, “[t]he principles that guide our
consideration of the meaning of statutes are settled ones, and we apply those same
principles when we consider the meaning of an ordinance.”24 Thus, we look first to
“the text of the ordinance, and if the text is clear and unambiguous, we look no
further, attributing to the ordinance its plain meaning.”25 In doing so, we attribute to
22
Stanfield, 280 Ga. at 787 (2) (punctuation omitted); accord Discovery
Practice Mgmt., 338 Ga. App. at 139 (2); Cherokee Cty. v. Martin, 253 Ga. App. 395,
396 (1) (559 SE2d 138) (2002).
23
Stanfield, 280 Ga. at 787 (2) (punctuation omitted); accord Golden Isles
Outdoor, LLC v. Lamar Co., LLC, 331 Ga. App. 494, 500 (1) (771 SE2d 173) (2015).
24
Daniel Corp. v. Reed, 291 Ga. 596, 597 (732 SE2d 61) (2012); accord
Golden Isles Outdoor, LLC, 331 Ga. App. at 496 (1).
25
Daniel Corp., 291 Ga. at 597.
14
those words their ordinary, logical, and common meanings, unless a clear indication
of some other meaning appears.26 Additionally, we read the ordinance as a whole
“according to the natural and most obvious import of the language, without resorting
to subtle and forced constructions, for the purpose of either limiting or extending its
operation.”27And importantly, as we consider the meaning of an ordinance, we
“remember that it is not to be construed in a vacuum, but in relation to other
ordinances of which it is a part, and all ordinances relating to the same subject matter
are to be construed together, and harmonized wherever possible.”28
Focusing on the particular ordinances at issue in this matter, City of Atlanta
Code of Ordinances § 16-28A.008 (2) provides: “The following signs shall not be
required to obtain a sign permit: . . . [a]ny sign inside a building.” Monumedia argues
that this section of the City’s sign ordinances should end any inquiry as to whether
its signs are permitted, as those signs are undisputedly located inside the Franco
building. But the City argues that the sign ordinances that specifically pertain to the
26
Id. (punctuation omitted).
27
Id. (punctuation omitted).
28
Id. (punctuation omitted).
15
“Buckhead Village District,”29 where the Franco building is—also
undisputedly—located, prohibit Monumedia’s signs. In particular, the City cites to
three subsections of City of Atlanta Code of Ordinances § 16-28A.010 (19), the first
of which, subsection (c) (iii), provides:
Signs shall be permitted in the SPI-9 District as follows: . . . [t]he
combined area of permitted business identification signs shall not
exceed ten percent of the total aggregate area of the walls that face the
public right-of-way or which face a private drive and are visible from a
public right-of-way provided however that at least 60 square feet of
combined sign area is allowed. No individual sign shall exceed 200
square feet.
The City also argues that Monumedia’s signs are prohibited by § 16-28A.010 (19)
(h), which provides: “General advertising signs shall not be permitted.” And the City
further claims that the signs are prohibited by § 16-28A.010 (19) (i), which states:
“No animated, flashing, neon, changing signs or internally illuminated signs shall be
allowed.”
Given the language in these subsections, the City contends that, although signs
located inside a building admittedly do not require permits, such signs can still be
29
See City of Atlanta Code of Ordinances § 16-28A.010 (19) (a) - (i) (1995).
16
regulated and, in fact, prohibited altogether. In further support of this contention, the
City notes that, similar to signs inside a building, “incidental signs” also do not
require a permit under § 16-28A.008,30 but are nevertheless specifically regulated by
other sections of the City’s sign ordinance.31
Based on our review of the City’s sign ordinances, we agree that signs not
requiring permits under § 16-28A.008 can still be regulated. But in light of that same
review, we find that, just as it did with regard to incidental signs, the City employed
explicit language regulating interior signs when it apparently wished to do so. Indeed,
§ 16-28A.010 (36), pertaining to the NC District, exemplifies the City’s legislative
nous in action. Specifically, § 16-28A.010 (36) (c) (iv) (1) provides:
. . . In addition to the NC District general sign regulations, the following
shall also apply to the Cascade Heights NC-6 District: . . . Window
signs: Signs visible from the public right-of-way which touch or are
30
See City of Atlanta Code of Ordinances § 16-28A.008 (7) (1995) (“The
following signs shall not be required to obtain a sign permit: . . . Incidental signs not
exceeding 35 square feet in sign area.”).
31
See City of Atlanta Code of Ordinances § 16-28A.007 (l) (1995) (“The
following general regulations shall apply to all signs located in the city: . . . Incidental
signs may be located in any R-G, O-I, R-LC, commercial, industrial, special public
interest or planned development district, subject to all other requirements of this
chapter 28A and the code of ordinances, provided no such incidental sign shall
exceed 35 square feet in area.”).
17
located within one foot of any window pane of glass on either the inside
or the outside of a building shall be limited to one sign per facade with
each sign no larger than six square feet.
But similar language referencing interior or signs inside of windows is notably absent
in § 16-28A.010 (19), and, therefore, we do not construe this subsection to prohibit
such signs. And our plain reading of the ordinance is in keeping with longstanding
tenets of statutory construction: “expressio unius est exclusio alterius (expression of
one thing implies exclusion of another) and expressum facit cessare tacitum (if some
things are expressly mentioned, the inference is stronger that those not mentioned
were intended to be excluded).”32 Indeed, if the City had desired to regulate signs
inside of buildings in the Buckhead Village District, it could have done so as it did
in the Cascade Heights District.33 In any event, and at the very least, the various
32
Turner v. Ga. River Network, 297 Ga. 306, 308 (773 SE2d 706) (2015)
(punctuation omitted); see also Alexander Props. Group, Inc. v. Doe, 280 Ga. 306,
309 (1) (626 SE2d 497) (2006) (holding that based on the principles of expressum
facit cessare tacitum and expressio unius est exclusion alterius, the list of actions in
a statute is presumed to exclude actions not specifically listed); Hammock v. State,
277 Ga. 612, 615 (3) (592 SE2d 415) (2004) (holding that because one subsection of
statute expressly excluded application of defense of habitation between members of
the same family, other sections that did not contain such limiting language showed
that the General Assembly’s allowance of such defense).
33
See Lucas v. Beckman Coulter, Inc., 339 Ga. App. 73, 78 (1) (793 SE2d 119)
(2016) (holding that if General Assembly had wished to created an exception to an
18
sections of the City’s sign ordinance at issue here create ambiguity as to whether
Monumedia’s signs can be regulated, and “the decisive rule of construction in this
case is that ambiguities in a zoning ordinance must be resolved in favor of the
property owner.”34
Moreover, in November 2014, well after the BZA concluded that Monumedia’s
signs violated the City sign ordinance, the City Council of Atlanta amended the
ordinance to specifically address signs located inside of buildings. Toward that end,
City of Atlanta Code of Ordinances § 16-28A.007 (q) now provides:
“Notwithstanding the provisions of Sec. 16-28A.008 (2) certain signs inside of a
building may require a permit to demonstrate that such signs conform with the district
regulations where said signs function in a manner that is substantially equivalent to
immunity provision in one subsection of statute, it could have done so as it did in
prior subsection); WMW, Inc. v. Am. Honda Motor Co., Inc., 311 Ga. App. 1, 4 (1)
(714 SE2d 689) (2011) (holding that if the General Assembly had meant for a
corporate “dealership” or “dealer” to be defined according to the corporation’s
facilities, it could have done so as it did with a noncorporate or individual dealer in
another section of the statute).
34
JWIC, Inc. v. City of Sylvester, 278 Ga. 416, 417 (2) (603 SE2d 247) (2004);
see Screven Cty. Planning Comm’n v. S. States Plantation, LLLP, 279 Ga. 404, 405-
06 (1) (614 SE2d 85) (2005) (holding that county land regulation was at least
ambiguous concerning whether it required the paving of existing, unpaved county
roads that abut a proposed subdivision and, thus, ruling in favor of the property
owner).
19
signs that would require a permit if placed on the outside of that building.” This
amendment further evinces the correctness of our conclusion that the ordinance did
not previously prohibit signs inside of buildings, “since we must presume that the
legislative addition of language to the [ordinance] was intended to make some change
in the existing law.”35 Thus, the superior court erred in concluding that the City’s sign
ordinances prohibited its signs located inside the Franco building. And accordingly,
we reverse the superior court’s ruling.
4. Given our holding in Division 3, we need not address Monumedia’s
remaining claims of error in Case No. A17A1127.
For all these reasons, we reverse the superior court’s ruling in both cases.
Judgment reversed in both cases. Ray, P. J., and Self, J., concur.
35
Wausau Ins. Co. v. McLeroy, 266 Ga. 794, 796 (2) (471 SE2d 504) (1996);
see Nuci Phillips Mem’l Found., Inc. v. Athens Clarke Cty. Bd. of Tax Assessors, 288
Ga. 380, 383 (1) (703 SE2d 648) (2010) (“All statutes are presumed to be enacted by
the legislature with full knowledge of the existing condition of the law and with
reference to it. Furthermore, when a statute is amended, from the addition of words
it may be presumed that the legislature intended some change in the existing law.”
(punctuation and citation omitted)); Evans v. Gwinnett Cty. Public Sch., 337 Ga. App.
690, 693-94 (1) (788 SE2d 577) (2016) (holding that because we presume an
amendment was intended as a change to the law and since the legislature expressly
added “school districts” to the organizations regulated by the statute, it follows that
under the prior law school districts were not included).
20