Summary
In IDI Logistics v. City of Douglasville, 312 Ga. 288, 288-289, 862 S.E.2d 324 (2021) (Warren, J., concurring in denial of discretionary application), Justice Warren, joined by then-Chief Justice Nahmias, expressed uncertainty "that a party challenging the denial of a rezoning application must, in all instances, file its suit as a petition for certiorari to the superior court..."
Summary of this case from Pickens Cnty. v. Talking Rock Bluffs, LLCOpinion
S21D1267
08-16-2021
IDI LOGISTICS, LLC v. The CITY OF DOUGLASVILLE et al.
Kathryn M. Zickert, Dennis John Webb, Smith Gambrell Russell, LLP, 1230 Peachtree Street, N.E. Promenade II, Suite 3100, Atlanta, Georgia 30309, Joseph Hodgson Fowler, Hartley, Rowe & Fowler, P.O. Box 489, Douglasville, Georgia 30133-0489, Joseph Alexander Brock, Smith, Gambrell, & Russell, LLP, 655 Saint Fillans Court, Alpharetta, Georgia 30022, for Appellant. Theodore Paul Meeker, Sumner Meeker, LLC, 14 East Broad Street, Newnan, Georgia 30263, for Appellee. Joshua Adam Scoggins, Miles Hansford & Tallant, LLC, 202 Tribble Gap Road Suite 200, Cumming, Georgia 30040, for Amicus Appellant.
Kathryn M. Zickert, Dennis John Webb, Smith Gambrell Russell, LLP, 1230 Peachtree Street, N.E. Promenade II, Suite 3100, Atlanta, Georgia 30309, Joseph Hodgson Fowler, Hartley, Rowe & Fowler, P.O. Box 489, Douglasville, Georgia 30133-0489, Joseph Alexander Brock, Smith, Gambrell, & Russell, LLP, 655 Saint Fillans Court, Alpharetta, Georgia 30022, for Appellant.
Theodore Paul Meeker, Sumner Meeker, LLC, 14 East Broad Street, Newnan, Georgia 30263, for Appellee.
Joshua Adam Scoggins, Miles Hansford & Tallant, LLC, 202 Tribble Gap Road Suite 200, Cumming, Georgia 30040, for Amicus Appellant.
Upon consideration of the Application for Discretionary Appeal, it is ordered that it be hereby denied.
All the Justices concur.
Warren, Justice, concurring in the denial of discretionary application.
In its application for discretionary appeal, IDI Logistics, LLC, raises two enumerations of error: that the trial court "erred as a matter of law in finding that lay concerns expressed about existing and increased truck traffic warranted the City's denial of" the rezoning application, and that the trial court committed reversible error because there was "no competent evidence in the record to support its decision." A common theme that runs through both of these enumerations, but which is not itself enumerated as a basis for this Court to grant IDI's discretionary application, is IDI's complaint that the superior court in this case somehow applied the wrong standard of review. And the predicate of that complaint is that IDI was required to dispute the City's denial of IDI's rezoning application via certiorari to the superior court under OCGA § 5-4-1 et seq.
But IDI's complaint sidesteps a more foundational question: whether it was required to utilize the certiorari procedure under OCGA § 5-4-1 et seq. in the first place. To that end, IDI does not dispute, as part of this discretionary application, that OCGA § 5-4-1 et seq. was the correct procedural mechanism for its suit. The superior court even noted as part of its order denying certiorari that IDI "has not challenged the procedures used but rather has limited its enumeration of errors to Respondents’ interpretation of the facts and its application of" the zoning ordinance, while also noting that City of Cumming v. Flowers , 300 Ga. 820, 797 S.E.2d 846 (2017), "changed the review of zoning decisions to certiorari pursuant to OCGA § 5-4-1."
I am less certain of what IDI assumes here: that a party challenging the denial of a rezoning application must, in all instances, file its suit as a petition for certiorari to the superior court under OCGA § 5-4-1 et seq. Compare Stendahl v. Cobb County , 284 Ga. 525, 526-527, 668 S.E.2d 723 (2008) (holding, with regard to a constitutional challenge brought by a claim for declaratory judgment, that "[w]hen a zoning authority either grants or denies an application for re-zoning, it acts in a legislative capacity, and when the constitutionality of that legislative enactment is challenged in court, it is afforded de novo review, i.e., the superior court is not limited to examination of the evidence presented to the zoning authority"); Mayor & Aldermen of the City of Savannah v. Rauers , 253 Ga. 675, 675, 324 S.E.2d 173 (1985) (rejecting proposed procedure of deciding a "constitutional challenge to the zoning ordinance on the basis of the evidence before the city council," such that "no trial de novo" would be permitted, because "the zoning authority is acting in a legislative capacity, and the constitutionality of its action in denying rezoning (adhering to the existing zoning ordinance) is being challenged in court") with Diversified Holdings, LLP v. City of Suwanee , 302 Ga. 597, 600-605, 807 S.E.2d 876 (2017) (concluding that rulings on rezoning applications are adjudicative in nature for purposes of determining whether discretionary applications under OCGA § 5-6-35 (a) (1) must be filed instead of notice of appeal under OCGA § 5-6-34 (a) (1) ). However, because IDI has not raised this issue in its discretionary application, and has not otherwise preserved the issue for our review by (for example) contemporaneously filing a separate suit for injunctive relief or mandamus in the superior court, as the aggrieved parties in Flowers did in a similar case about zoning variances, see Flowers , 300 Ga. at 820-821, 797 S.E.2d 846, I see no basis on which we can grant the application on that question, and otherwise concur that the application IDI presents should be denied under Supreme Court Rule 34.
I am authorized to state that Chief Justice Nahmias joins in this concurral.