Schumacher v. City of Roswell , 301 Ga. 635 ( 2017 )

Peterson, Justice.

The Roswell City Council enacted a new Unified Development Code (the “Code”) to govern land use issues; the Code included a zoning map. Several Roswell property owners filed a lawsuit in superior court challenging the process by which the City Council enacted the Code. When the superior court ruled against the property owners, they filed a direct appeal. The Court of Appeals dismissed their direct appeal, concluding that their lawsuit was a “zoning case” under our decisions in Trend Dev. Corp. v. Douglas County, 259 Ga. 425, 425-426 (1) (383 SE2d 123) (1989), and O S Advertising Co. of Ga. v. Rubin, 267 Ga. 723 (482 SE2d 295) (1997) (“Rubin”), and thus required an application for discretionary appeal under OCGA § 5-6-35 (a) (1). But a stand-alone lawsuit challenging an ordinance as facially invalid — unconnected to any individualized determination about a particular property — is not a “zoning case” under Trend and Rubin and does not require an application under OCGA § 5-6-35. Accordingly, we reverse.

As alleged in their amended complaint, Eric Schumacher and Mike Nyden (“Plaintiffs”) are citizens and taxpayers of the City of Roswell (“City”) and own residential property there.¹ In February 2014, after conducting two public meetings, the Council of the City of Roswell (“City Council”) approved a new zoning ordinance — the Code — and a new zoning map. The Code substantially replaced the City’s existing zoning ordinance.

As detailed in meeting minutes attached as an exhibit to the answer to the amended complaint, Plaintiff Schumacher had attended and participated in the first public meeting, voicing his concerns about the proposed Code. In particular, he expressed his concerns about density and the public’s ability to understand the proposal. At the second public meeting, a letter from Schumacher’s counsel was read into the record. The letter argued that the City had not complied with state statutory procedures for adoption of a new zoning code. Among other things, the letter argued that the City had violated the law by inaccurately telling the public that the proposal would not change existing property rights. In neither meeting did Schumacher or his counsel address any issue with the zoning of any particular parcel of property

Following adoption of the Code, Plaintiffs filed suit against the City in the Superior Court of Fulton County.² The complaint, as amended, challenged the manner in which the City Council had approved the Code as contrary to law for a variety of reasons. Plaintiffs also alleged that the Code adversely affected their property. They sought a declaratory judgment that the Code was illegally enacted and, therefore, void and unenforceable, and an injunction prohibiting its enforcement, as well as attorney fees and costs.

The City denied Plaintiffs’ allegations, and attached and incorporated by reference to its answer copies of the Code, the new zoning map, and the minutes of the two City Council meetings where the Code and map were discussed and approved. The City also filed a motion for judgment on the pleadings, seeking dismissal of all of Plaintiffs’ claims. Plaintiffs opposed the City’s motion and moved for an interlocutory injunction to prohibit enforcement of the Code during the pendency of the litigation. Following a hearing, the superior court granted the City’s motion for judgment on the pleadings as to all of Plaintiffs’ claims and denied as moot Plaintiffs’ motion for an interlocutory injunction. Plaintiffs filed a direct appeal of the adverse ruling, challenging only the dismissal of some of their claims against the ordinance. The City moved to dismiss Plaintiffs’ direct appeal for lack of jurisdiction, arguing that Plaintiffs were required to comply with the application procedures for discretionary appeal. The Court of Appeals agreed and dismissed the direct appeal. Schumacher v. City of Roswell, 337 Ga. App. 268 (787 SE2d 254) (2016). We granted certiorari.

1. The enactment of the Code was not a “decision ” of an “administrative agencfy]” under OCGA § 5-6-35 (a) (1).

We have advised litigants that they must “review the discretionary application statute to see if it covers the underlying subject matter of the appeal. If it does, then the party must file an application for appeal as provided under OCGA § 5-6-35.” Rebich v. Miles, 264 Ga. 467, 469 (448 SE2d 192) (1994). As relevant here, OCGA § 5-6-35 (a) (1) requires an application for “Appeals from decisions of the superior courts reviewing decisions of. . . state and local administrative agencies.” The statutory question presented in this case is whether a city council’s adoption of a new zoning code is the “decision” of a “local administrative agenc[y].”

Our case law makes clear that an act of an administrative agency is a “decision” within the meaning of this statute only when it is a determination of an “adjudicative nature.” See State of Ga. v. Intl. Keystone Knights of the Ku Klux Klan, Inc., 299 Ga. 392, 402 (4) (a) (788 SE2d 455) (2016) (punctuation omitted). We have noted that our opinions draw a distinction between determinations of an adjudicative nature which fall within the meaning of the term “decision” as used in OCGA § 5-6-35 and “those that are legislative or quintessentially executive in nature.” Id. at 403 (4) (a). While requiring applications for discretionary review in cases where an administrative agency made a determination of an adjudicative nature, “[w]e consistently have refused ... to require applications in cases concerning executive determinations and those involving rulemaking or other determinations of a legislative nature.” Id. at 403-404 (4) (a).

The conclusion that enactment of a new development code is an exercise of legislative power — and thus not an adjudicative “decision” under the statute — is compelled by our case law:

Administrative determinations of a legislative nature are prospective in application, general in application, and often marked by a general factual inquiry that is not specific to the unique character, activities or circumstances of any particular person. Determinations of an adjudicative nature, on the other hand, are immediate in application, specific in application, and commonly involve an assessment of facts about the parties and their activities, businesses, and properties.

Id. at 401 (4) (a) (citations and punctuation omitted). Nothing about the adoption of a new development code fits within this definition of “decision.”

The lawsuit filed in superior court challenged only one action: the Roswell City Council’s adoption of the Code. The suit seeks no individualized zoning-related relief. Nothing in the adoption of the Code focused on “the unique character, activities or circumstances of any particular person,” or involved an “assessment of facts about the parties and their activities, businesses, and properties.” There was no individualized determination by any level of city government. The adoption of the Code was prospective in nature, as the adopting City ordinance provided that the Code was to take effect after June 1, 2014, and was to apply for the entire City. Thus, the adoption of the Code was not a “decision” as we have interpreted that statutory term.

Moreover, the City Council was not acting as an “administrative agenc[y].” The enactment of ordinances is at the core of the City Council’s legislative functions. Indeed, the City arguedbelow that the defendant City Council members should be dismissed from the suit by virtue of their legislative immunity because they had “engaged in a legislative function” in adopting the Code. OCGA § 5-6-35 (a) (1) requires both a “decision” and an “administrative agenc[y]”; this case has neither, and thus the statute does not require an application for discretionary appeal.

2. Trend and Rubin do not apply here.

Trend and Rubin do not require a different result. Trend and Rubin both announced that applications are required to appeal in “zoning cases.” Rubin, 267 Ga. at 723 (“Adhering to our decision in Trend . . . we reiterate that all appeals in zoning cases require an application”); Trend, 259 Ga. at 425 (1) (“The Court takes this opportunity to advise bench and bar that appeals in zoning cases will henceforth require an application.”). But a careful reading of those cases shows that they can be reconciled with OCGA § 5-6-35 (a) (1) because a “zoning case” is a case involving a “decision” by an “administrative agenc[y]” dealing with the zoning or allowed use of a particular parcel of land. No such decision is at issue here.

In Trend, an appeal was taken from the denial of a landowner’s petition to rezone certain property That’s the sort of individualized determination that we would generally consider a “decision” under the statute. See Keystone Knights, 299 Ga. at 401 (4) (a). The agency making the decision — the county commission — did not qualify as an “administrative agenc[y]” at the time Trend was decided. See Geron v. Calibre Cos., 250 Ga. 213, 216 (1) (296 SE2d 602) (1982) (holding “a county commission is not an administrative agency” for purposes of OCGA § 5-6-35 (a) (1)). Seven years after Trend, however, we explicitly overruled Geron on this point, holding that, when performing a function that is “the equivalent of the function of an administrative agency,” boards of commissioners are administrative agencies under OCGA § 5-6-35 (a) (1). See Swafford v. Dade County Bd. of Commrs., 266 Ga. 646, 647 (1) (469 SE2d 666) (1996). Because Trend involved a “decision” of what we now understand to have been an “administrative agenc[y]” — and this case did not — Trend does not compel the filing of a discretionary application here.

In Rubin, the agency in question was the City of Atlanta Board of ZoningAdjustment, likely an “administrative agenc[y]The appeal was taken in the superior court from the denial of a landowner’s application for a sign ordinance variance, and then appealed to this Court. 267 Ga. at 724. As in Trend, that sort of determination is generally considered a “decision.” Id. In Rubin, the landowner added to the variance request a claim that the ordinance was unconstitutional. Notwithstanding that the issue on appeal was the constitutional claim, however, Rubin still involved an appeal from an administrative agency’s denial of an individual variance request. Here, in contrast, Plaintiffs make a stand-alone challenge to a legislative act by a legislative body; there is no claim regarding the zoning of any particular parcel of land, no decision regarding any parcel of land, and no appeal from any such decision. This case is not a “zoning case” under Trend or Rubin.³

Trend announced that “appeals in zoning cases” would “henceforth” have to be brought by application under the statute. Trend, 259 Ga. at 425 (1). But the context of Trend and Rubin makes clear that when those decisions refer to “zoning cases,” they mean cases involving individualized determinations by an “administrative agenc[y]” as to the zoning or permitted use of particular parcels of land.⁴ The City asserts in its brief before us that the adoption of the Code and new map for the entire City “incidentally[ ] rezoned Appellants’ property.” Even assuming this is correct, however,⁵ Plaintiffs assert no claim and appeal from no individualized decision to change the zoning of any particular property or to grant or deny a request for a variance as to any particular property Rather, they make various allegations about the process by which the Code was adopted — including that the City falsely told the public that the Code would not affect residential property owners and would not increase housing density — then baldly allege that the Code “adversely affects” their property Although Plaintiffs thus allege — as they must to have standing — that they were harmed by the City’s actions, those allegations do not convert their lawsuit into a “zoning case” as we used that term in Trend and Rubin.

We acknowledge there is one case like this one in which we have found an application to be required. In Outdoor West, Inc. of Ga. v. Coweta County, 270 Ga. 527 (512 SE2d 604) (1999), we dismissed by order a direct appeal for failure to file an application. The order said, in full:

As this is an appeal from a decision in a zoning case, appeal to this Court is by the application procedures of OCGA § 5-6-35. O S Advertising Co. v. Rubin, 267 Ga. 723, 724 (1) (482 SE2d 295) (1997); Trend Dev. Corp. v. Douglas County, 259 Ga. 425 (383 SE2d 123) (1989). In fact, Outdoor West, Inc., has, prior to this direct appeal, filed such an application (Outdoor West, Inc. of Georgia v. Coweta County, Georgia, S98D1665). The application was denied by this Court on August 14,1998. Accordingly, this direct appeal is dismissed.

Id. at 527. Two justices dissented, explained that what the majority believed was a “zoning case” was actually a stand-alone constitutional challenge to a sign ordinance, and concluded the direct appeal was appropriate. See id. at 527-528 (Carley, J., dissenting, joined by Hunstein, J.) (noting absence of any evidence that there had been any “final administrative decision or that Outdoor West ha[d] prosecuted any appeal therefrom by any method”).

Outdoor West is a clear outlier; we have refused to require an application in other zoning-related cases that were not appealing decisions of administrative agencies. Compare Mid-Ga. Envtl. Mgmt. Group, LLLP v. Meriwether County, 277 Ga. 670, 671-672 (1) (594 SE2d 344) (2004) (citing Trend rule and concluding, because no zoning decision had been made, that appellant had a right to a direct appeal — and that Court properly dismissed discretionary application — to seek review of denial of mandamus action to compel county to issue a verification letter and a declaratory judgment that county’s zoning ordinance was not validly enacted), with id. at 676 (Hines, J., dissenting) (“[A] 11 zoning decisions, whether determining the initial zoning classification or otherwise, are administrative. This Court has declared this principle to be a ‘bright-line’rule, [citing Rubin] Today, the majority erases this rule.”); see also King v. City of Bainbridge, 272 Ga. 427, 428 (1) (531 SE2d 350) (2000) (unanimously denying appellee’s motion to dismiss appeal pursuant to Rubin, because the order being appealed from (the grant of an injunction to enjoin appellant from violating city’s zoning ordinance) did not involve the review of the decision of a local administrative agency); Harrell v. Little Pup Dev. & Constr., 269 Ga. 143, 144 (1) (498 SE2d 251) (1998) (citing Rubin and unanimously concluding that direct appeal was proper; case did not involve superior court review of an administrative decision where appellants brought action for injunctive relief to enforce rezoning conditions imposed against neighboring landowner and “did not join their action for injunctive relief with any appeal from an adverse administrative decision”). Moreover, but for the issuance of a dissent, Outdoor West would be an unpublished order without precedential value. See Spurlock v. Dept. of Human Resources, 286 Ga. 512, 514 (2) (690 SE2d 378) (2010) (unpublished orders serve as neither binding nor physical precedent). We do not find Outdoor West controlling, and expressly disapprove it to the extent inconsistent with our holding today

We reverse the decision of the Court of Appeals and remand for proceedings consistent with this opinion.

Judgment reversed.

Melton, R J., Hunstein, Nahmias, Blackwell, and Grant, JJ., concur. Hines, C. J., Benham, J., and Judge VerdaM. Colvin dissent. Boggs, J., disqualified.

1 A third plaintiff named in the complaint has not filed an appearance in the appeal.

2 The original complaint named the Mayor of Roswell and City Council members as additional defendants, but they were not named as defendants in the Plaintiffs’ amended complaint.

3 Notwithstanding the dissent’s extended discussion of stare decisis, today we decide only that Trend and Rubin do not apply here. Whether they should be reconsidered in an appropriate case is another question for another day.

4 If the City Council’s adoption of a new zoning code were the “decision” of a “local administrative agenc [y]the fact that Plaintiffs did not appeal from that decision and instead filed a stand-alone lawsuit challenging the decision would not entitle them to a direct appeal; the statute may not be so easily evaded. See Hamryka v. City of Dawsonville, 291 Ga. 124, 125 (2) (728 SE2d 197) (2012).

5 It is not clear exactly what the City means by saying Plaintiffs’ property was “rezoned,” i.e., to what extent the Code changed what uses of Plaintiffs’ property were permissible. The City does not point to anything in the voluminous attachments to its answer that addresses that question, and the amended complaint does not allege that Plaintiffs’ property was “rezoned.”