David H. Flint, Esq.
Schreeder, Wheeler & Flint, LLP
1100 Peachtree Street N.E., Suite 800
Atlanta, GA 30309-4516
Administrative Hearings and Procedures
|Table of Contents|
|I.||Nature of Administrative Versus Legislative Zoning Decisions||1|
|II.||Administrative Zoning Decisions in Contrast to Legislative Zoning Decisions||1|
|III.||Procedural Due Process Protection in Administrative Zoning Hearings||3|
|IV.||Judicial Review of Administrative Decisions||4|
|1.||Importance of Exhaustion of Administrative Remedies||4|
|2.||Standing to Bring Challenge||4|
|3.||Nature of Appeal||6|
|4.||On the Record Review||7|
|5.||Standard of Review||7|
|V.||Judicial Review of Legislative Decisions||8|
|2.||Nature of Appeal||9|
|3.||Nature of Remedy||10|
|4.||Burden of Proof in Rezoning Decisions||11|
|VI.||Special Use Permits: A Special Case||11|
|VII.||Summary and Conclusion||13|
I. NATURE OF ADMINISTRATIVE VERSUS LEGISLATIVE ZONING DECISIONS
Zoning decisions at the local government level are of two types. One is legislative, the other administrative. Different procedural rules apply depending on which type of decision is being made. It is therefore imperative to understand the different nature of these decisions and then how the procedural rules differ.
II. ADMINISTRATIVE ZONING DECISIONS IN CONTRAST TO LEGISLATIVE ZONING DECISIONS
Administrative zoning decisions are defined, not by the body or board that makes the decision, but by the nature of the decision being made. For example, at one instance a board of commissioners may make administrative decisions, such as the grant of a variance, while at another it makes legislative decisions, such as the rezoning of property. We must then examine the nature of the decision to determine whether it is administrative or legislative.
Usually, local government administrative decisions are judicial in nature; in fact, they are often referred to as quasi-judicial. That is because the decisions are made in accordance with the typical judicial decision-making process. They usually directly affect the rights of individuals or entities who have an interest in the property subject to an administrative decision. Typical local administrative zoning decisions include the grant or denial of variances, approval or disapproval of subdivision plats, and review of administrative decisions made by zoning officials. The body considering the decision receives evidence, usually during a public hearing, decides the facts, and applies the facts to the standards in the zoning ordinance to arrive at a decision either approving or not approving the issue at hand. Special concern is required when the body hearing the administrative decision is a legislative body, such as when there is an appeal from a Board of Appeals issuance of a variance to a Board of Commissioners. In such cases, the Board of Commissioners is sitting effectively in a quasi-judicial capacity, and should act accordingly.
Legislative decisions are those which have broad-based application and are in the nature of policy making by the local government. They are more apt to apply to the general population than impact specific individuals. Adoption of an ordinance, in this context a zoning ordinance, is the most typical example of legislative decision making. Under the Georgia Zoning Procedures Law, the General Assembly defined the following as legislative decisions: adoption of a zoning ordinance, amendment to a zoning ordinance, the rezoning of property from one zoning classification to another, and the grant of a special use permit. (However, special use permits are becoming a sort of hybrid beast and are discussed below). Since these are deemed legislative decisions, only the governing body of the local government may make them. In the case of cities, that is reserved exclusively to the city council or city commission; in the case of counties, legislative decisions are reserved exclusively to the board of commissioners. A planning commission appointed by the local governing body may make recommendations to the governing body, but the ultimate decision rests within the legislative discretion of the local governing body.
Legislative decisions are not bound by specific rules or standards. They are intended to have broad application, and though subject to constitutional limitations, legislative decisions are based upon broad discretionary powers inherent in the legislative process. This is true although the local government is required to adopt standards governing decisions of rezoning property.
III. PROCEDURAL DUE PROCESS PROTECTION IN ADMINISTRATIVE ZONING HEARINGS
Since administrative zoning decisions typically affect the rights of individuals whose property is subject to regulation by a local government, certain procedural due process safeguards are necessary. Those safeguards generally include notice of a hearing, a right to present evidence, a right to representation by counsel, the right to cross-examine witnesses, and the right to a written decision based on the evidence presented at the hearing.
Due process at the local government level does not require strict procedural rules as would be expected in a court of law. Not only that, public hearings are conducted by non-lawyers who are not expected to follow rules of civil procedure as required of a court. Thus, a more relaxed proceeding is acceptable, although it must meet a minimal level of fairness. For added protection, administrative zoning decisions are subject to appeal to the superior court.
Of supreme importance is the right to a fair hearing and a written decision based on the record of evidence adduced at the hearing.
IV. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS
1. Importance of Exhaustion of Administrative Remedies
Prior to attempting to take an administrative matter to Court, it is important to make sure the party has exhausted any administrative remedies available. That would include filing any sort of administrative appeal possible, to the next higher authority. Otherwise, the case is subject to dismissal. In the limited circumstance where the appeal is back to a body that has decided the matter previously, an administrative appeal can be found "futile" and deemed not required. However, this is a risky gambit, and a litigant is better off attempting to exhaust any administrative appeal before filing suit.
2. Standing to Bring Challenge
Of course, an essential question the Court will ask on any appeal is whether the plaintiff has standing. There are many bases for standing in Georgia law, such as taxpayer standing for ultra vires actions; standing to bring challenges to deprivation of constitutional rights; and the substantial-interest/aggrieved citizen standing test for zoning appeals, among others. A plaintiff takes standing where he can find it, and if any of those can be satisfied, that will be sufficient. Often, the zoning ordinance will contain a statement specific to administrative appeals akin to "any person aggrieved by the decision" can bring a challenge. In the recent decision of RCG Properties, LLC v. City of Atlanta Bd. of Zoning Adjustment, 260 Ga.App. 355, 579 S.E.2d 782 (2003), the City tried to challenge the standing of RCG to bring its challenge, and the Court dismissed it as being raised too late since it was not raised before the BZA. The Court relied upon the notion that no new evidence can be presented in an appeal of a quasi-judicial decision, and the standing issue was raised for the first time in superior court, and thus too late. Thus, if the standing issue is not raised at the first hearing, it is too late to challenge it later.
However, the Supreme Court did not appear to apply that rule in Massey v. Butts County, 281 Ga. 244, 637 S.E.2d 385 (2006), where it considered the standing to challenge the issuance of a building permit for a barn, a clearly administrative, quasi-judicial proceeding. A footnote in the case notes that the record does not contain the portion of the Butts County Zoning Ordinance containing procedures for appeals and "accordingly we will not address appellant's standing to appeal the decision of the Butts County Board of Zoning Appeals." 281 Ga. at 245. Yet, despite not caring to address standing to bring the challenge below, the Court went on to find that the appeal, seeking a declaration that the barn was not a permitted use, and an injunction requiring its removal, must be dismissed for lack of standing. The Court further found that the "substantial-interest/aggrieved citizen" test applied to all attempts to bring equitable relief or declaratory relief to attack or enforce a zoning decision.
This opinion, which overtly refers to two lines of cases on standing, would seemingly overrule sub silentio the decision of the Court of Appeals in Rock v. Head, 254 Ga.App. 382, 562 S.E.2d 768 (2002), where the Court held that nearby property owners have standing to bring an appeal to challenge a zoning decision without showing special damages: "It is well settled that property owners may seek to prevent their neighbors from developing or using their property in violation of its existing zoning without showing special damages." 254 Ga. at 383. Apparently it is not well-settled enough!
A cautious practitioner would do well to have evidence to satisfy the substantial-interest/aggrieved citizen standing test even in an administrative appeal, as it is never clear which standard the Courts will choose to apply.
3. Nature of Appeal
In Georgia, appeals of administrative local government decisions are taken directly to the superior court. Appeals are initiated in one of three ways: writ of certiorari, appeal, or mandamus. The local government dictates the method or procedure for appeal in its ordinance. For example, the local government may provide that appeals from local government administrative decisions must be made to the superior court by writ of certiorari. In such cases, the procedures under O.C.G.A. chapt. 5-4 must be followed. Those provisions for certiorari apply to appeals from decisions of inferior tribunals to the superior court. The second procedure is found in O.C.G.A. chapt. 5-3, which deals with appeals from inferior tribunals to the superior court. The standards are different than certiorari, but the procedures are detailed in the appeals chapter and must be followed. The third is by petition for mandamus. This procedural vehicle for appeal is required when the local zoning ordinance is silent as to the method of appeal to the superior court.
4. On the Record Review
Judicial review of a local government zoning or administrative decision is a review of the record only. Our constitutionally based doctrine of separation of powers requires a very limited judicial review of administrative decisions. Thus, the court in its review will not receive new evidence, but will review the record of evidence presented to the administrative agency. The court does not substitute its judgment for that of the administrative agency, but merely reviews the record to determine whether the agency acted beyond its discretionary powers, abused its discretion, or acted arbitrarily or capriciously regarding an individual's constitutional rights.
This limited judicial review of the record applies regardless of the method used to appeal the decision to the superior court. That is, whether the appeal is by writ of certiorari, appeal under the statutory provisions, or mandamus, the court is still limited to a review of the record before the local government administrative agency.
5. Standard of Review
The superior court, in its review of the record of evidence presented to the administrative decision agency, determines whether the agency abused its discretion or whether the appellant is entitled to relief as a matter of law. Under this review, the "any evidence" rule of administrative review applies. Thus, the court, in consideration of the record of the proceedings before the administrative agency, determines whether there is any evidence which supports the decision of the administrative agency. If so, then the court's duty is to uphold the administrative decision.
V. JUDICIAL REVIEW OF LEGISLATIVE DECISIONS
The law has been well established for some time that the appropriate test for standing to challenge a rezoning decision would be the substantial-interest/aggrieved citizen test. Of course, the owner of the property satisfies this test. The litigation has arisen only when neighbors attempt to challenge the standing of others. In this, the Court is very reluctant to allow a neighbor to interfere with the right of use of property granted by the local government at the owner's request, and so the standing test is difficult.
In order to challenge on the merits a decision of a governing authority to rezone, plaintiffs must show special damages under the substantial interest-aggrieved citizen test. The Courts have assigned two steps to standing: first, that a person claiming to be aggrieved must have a substantial interest in the zoning decision, and second, that this interest be in danger of suffering some special damage or injury not common to all property owners similarly situated. By "similarly situated," the Courts refer to persons in the general community who may merely suffer inconvenience and exclude those persons who "citeas((Cite_as:_218_Ga.App._668,_*669,_">stand to suffer damage or injury to their property which derogates from their reasonable use and enjoyment of it. As a concrete example, in one case, the court found evidence given by an expert real estate appraiser indicating that an adjoining landowner would suffer a 15 percent to 20 percent decrease in the value of his property sufficient evidence upon which a trial court might find substantial damage to a substantial interest
2. Nature of Appeal
Like the appeal of administrative decisions, legislative decisions are subject to a limited judicial review. But the court in its review is not limited only to a review of the evidence presented to the local government. The superior court conducts a de novo review of the challenges to the zoning decision. Therefore, the court is not limited by the facts or evidence presented to the local governing body, nor is it limited by the lower court's determination of the applicable law. It is a fresh appeal, and new evidence, including expert testimony, may be offered to the court. The court is free to make an independent determination of whether the procedural or substantive challenges may be sustained based on the evidence presented to the court and based on the applicable law.
The constitutional challenges to a legislative zoning decision are generally of two types. One is facial, meaning that a challenge is made to the ordinance as adopted without regard to how the ordinance is applied. The other type is commonly called an "as applied" challenge, which usually asserts that a zoning ordinance as applied to specific property is unconstitutional. This more commonly occurs in challenges to the rezoning of property or grant of a special use permit.
Whether the appeal is a facial challenge or an "as applied" challenge, the superior court is authorized to receive evidence de novo and make a decision as to whether the legislative decision will survive constitutional attack.
3. Nature of Remedy
In an "as applied" constitutional challenge, an appeal to the superior court is initiated by filing a complaint challenging the decision by the local government. Although it is in the nature of an appeal, it is treated as a complaint in equity. Of course, if damages apply, then legal remedies as well as equitable may be availed to the complaining party.
The trial court is not limited to the record of the evidence presented to the administrative agency, but may take a fresh look at new evidence presented by the parties.
When appeals involve zoning decisions, the separation of powers doctrine prohibits the court from rezoning property. The court's remedy to a complaining party, other than damages, is limited to declaring a zoning decision unconstitutional. After that, utilizing its injunctive powers, the court remands the case to the local government with direction to rezone the property to a constitutional zoning classification. In this way, the legislative discretion of the local government is not judicially usurped, although the local government must rezone the property to a classification different from that found unconstitutional by the court.
4. Burden of Proof in Rezoning Decisions
Since a zoning decision is a legislative decision, it enjoys the presumption of validity as is true of all legislative decisions. The burden of proof of the landowner who challenges the denial of a rezoning petition is different from that of a neighboring property owner who challenges the grant of a rezoning petition. In the former, the property owner must show by clear and convincing evidence that he has suffered substantial detriment without a countervailing benefit to the public health, safety, morality, and welfare. It is only upon this showing that the local government must then come forward with evidence to rebut the evidence adduced on behalf of the property owner.
Where a neighboring property owner challenges a rezoning of property, he is required to show fraud, corruption, or a manifest abuse of discretion to the detriment of the neighboring property owners. This too is a very heavy burden; one that certainly favors the property owner.
VI. SPECIAL USE PERMITS: A SPECIAL CASE
While the grant of denial of a permit such as special use permit had long been considered an administrative zoning decision, the Zoning Procedures Law was amended in 1998 to list them amongst the matters referred to as "legislative" zoning decisions, such that require compliance with the ZPL for notice and a hearing. Yet, rather than converting special use permit decisions to legislative decisions, with de novo review at the superior court, or rather than continuing to treat them as quasi-judicial decisions, the Supreme Court has adopted a sort of hybrid analysis. Special use permits are called legislative decisions and the legislative discretion of the Board is honored, but the review is on the record and they are upheld if there is "any evidence" to support the decision. See, e.g., Gwinnett County v. Ehler Enterprises, 270 Ga. 570(1), 512 S.E.2d 239 (1999).City of Alpharetta v. Estate of C.R. Sims, 272 Ga. 680, 682, 533 S.E.2d 692 (2000), Fulton County v. Congregation of Anshei Chesed, 275 Ga. 856, 859(2), 572 S.E.2d 530 (2002). Jackson County v. Earth Resources, 280 Ga. 389, 390, 627 S.E.2d 569 (2006); City of Roswell v. Fellowship Christian School, 281 Ga. 767, 642 S.E.2d 824 (2007).
The "any evidence" standard being easy to satisfy (since it basically equates to abuse of discretion), and there not being an opportunity to present new evidence, expert testimony and so forth, the grant or denial of a special use permit becomes almost impossible to overturn, unless the Board's action is simply arbitrary. In the City of Roswell case, supra, the only evidence against the requested school football stadium appeared to be neighbor comments that there were two other stadiums in the vicinity and that traffic would be negatively impacted. The Court held, "Neither the superior court nor this Court has any discretion to exercise in connection with FCS's application for a Permit. Whether to approve or to deny that application was addressed solely to the exercise of Appellants' sound discretion in accordance with the factors enumerated in the ordinance. There was evidence to support the decision to deny the Permit based upon the negative impact the stadium would have on traffic in the area." 281 Ga. at 769. Special use permits have become the best (or worst) of both worlds: the boards are considered to have discretion to apply the criteria in the ordinance governing the issuance of the permit, and the decision can be supported by any evidence.
VII. SUMMARY AND CONCLUSION
Local government zoning decisions are generally of two types: administrative and legislative. Requests for variances, subdivision plat approval, and review of zoning decisions by zoning officials are examples of administrative zoning decisions. Due process safeguards are required in administrative decision making, including the right to notice, to present evidence, to cross-examine witnesses, to develop a record of the proceedings, and to a written decision based on the record. It is a decision that is judicial in nature, as the decision maker determines the facts and applies the facts to the legal standards in the zoning ordinance.
Legislative decisions, on the other hand, are those which result in the adoption of a zoning ordinance, an amendment to the zoning ordinance, the rezoning of property, and the approval of a special use permit. These decisions must be made by the local governing authority. As legislative decisions, they are policy-making decisions with usually far-reaching application. Due process, trial-type hearings are not required, but the local government is required to conduct a hearing in which applicants and opponents may present their case to the decision maker. Legislative decisions are limited by the Constitution, and thus the typical issue on appeal of a legislative decision is whether it violates any of the protections afforded under either the Georgia or Federal Constitutions.
1. Southview Cemetary Ass'n v. Hailey, 199 Ga. 478, 34 S.E.2d 863 (1945); Mack II v. City of Atlanta, 227 Ga. App. 305, 489 S.E.2d 357 (1998).
2. Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995), (variance decision by a local board of appeals is quasi-judicial in nature); Bentley v. Chastain, 242 Ga. 348, 249 S.E.2d 38 (1978).
3. Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995), (for variance, board considers whether facts applying to property warrant relief from zoning under standards in ordinance); Bentley v. Chastain, 242 Ga. 348, 249 S.E.2d 38 (1978).
4. Crymes v. DeKalb County, 923 F.2d 1482 (11th Cir. 1991).
5. O.C.G.A. § 36-66-3.
6. Crymes v. DeKalb County, 923 F.2d 1482 (11th Cir. 1991).
7. Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995).
8. Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995)(strict adherence to rules of evidence not required; hearing may be conducted informally).
9. Little v City of Lawrenceville, 272 Ga. 340, 528 S.E.2d 515 (2000).
10. Id.; WMM Properties v. Cobb County, 255 Ga. 436, 339 S.E.2d 252 (1986).
11. Rothschild v. Columbus Consol. Government, 291 Ga.App. 531, 662 S.E.2d 167 (2008).
12. Atlanta Taxicab Co. Owners Ass'n, Inc. v. City of Atlanta, 281 Ga. 342, 638 S.E.2d 307 (2006).
13. Macon-Bibb County Planning & Zoning Com'n v. Vineville Neighborhood Ass'n, 218 Ga.App. 668, 462 S.E.2d 764 (1995).
14. Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995); Dougherty County v. Webb, 256 Ga. 474, 350 S.E.2d 457 (1986).
15. O.C.G.A. chapt. 5-4; Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995).
16. O.C.G.A. chapt. 5-3; Dougherty County v. Webb, 256 Ga. 474, 350 S.E.2d 457 (1986).
17. Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995)(mandamus is remedy when zoning ordinance is silent as to judicial review); Shockley v. Fayette County, 260 Ga. 489, 396 S.E.2d 883 (1990).
18. Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995).
19. Emory University v. Levitas, 260 Ga. 894, 401 S.E.2d 691 (1991).
20. Gwinnett County v. Ehler Enterprises, Inc., 270 Ga. 570, 512 S.E.2d 239 (1999); Emory University v. Levitas, 260 Ga. 894, 401 S.E.2d 691 (1991).
21. Macon-Bibb County Planning & Zoning Com'n v. Vineville Neighborhood Ass'n, 218 Ga.App. 668, 462 S.E.2d 764 (1995); City of Marietta v Traton Corp, 253 Ga. 64, 316 S.E.2d 461 (1984).
22. Macon-Bibb, supra, 281 Ga.App. at 670.
23. Brand v Wilson, 252 Ga. 416, 417, 314 S.E.2d 192 (1984).
24. Dougherty County v. Webb, 256 Ga. 474, 350 S.E.2d 457 (1986).
25. Jacobs v. The Florida Bar, 50 F.3d 901 (11th Cir. 1995); O. S. Advertising Co. of Georgia v. Rubin, 267 Ga. 723, 482 S.E.2d 295 (1997); Village Centers, Inc. v. DeKalb County, 248 Ga. 177, 281 S.E.2d 522 (1981).
26. Dougherty County v. Webb, 256 Ga. 474, 350 S.E.2d 457 (1986).
27. Dougherty County v. Webb, 256 Ga. 474, 350 S.E.2d 457 (1986).
28. Speedway Grading Corp. v. Barrow County Board of Commissioners, 258 Ga. 693, 373 S.E.2d 205 (1988); DeKalb County v. Post Properties, Inc., 245 Ga. 214, 263 S.E.2d 905 (1979).
29. Gradous v. Board of Commissioners of Richmond County, 256 Ga. 469, 349 S.E.2d 707 (1986).
30. DeKalb County v. Dobson, 267 Ga. 624, 482 S.E.2d 239 (1997); Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975).
31. Cross v. Hall County, 238 Ga. 709, 235 S.E.2d 379 (1977).