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GA Appeals Court Affirms that Board of Commissioners Acted in a Legislative Capacity When Placing Condition on a Rezoning and not in a Quasi-Judicial Capacity

This post was authored by Tyler Doan, Esq.

Cook Communities (Cook) bought roughly 32.6 acres of land in Hall County to build approximately 200 attached townhomes. At the time of purchase, the land was zoned for agricultural housing. Cook sought to have the zoning map changed and the property rezoned as planned residential development. Cook argued that a denial of its request would be “an unconstitutional restriction on the use of the property” and “abolish or damage [its] property rights” without fair and just compensation in violation of both state and federal constitutions. In January of 2022 the local planning commission voted to rezone the property with several conditions. The Hall County Board of Commissioners approved the rezoning with, as Cook stated “several new and amended conditions that prescribed exactions requiring [Cook] to donate land for improvements off the property or not directly addressing traffic issues caused by the proposed redevelopment of the property such as installing turn lanes and imposing a unit per acre density far less than surrounding developments.” Cook filed a lawsuit in the superior court against the County and its Commissioners in their individual capacity seeking declaration, injunctive, and mandamus relief and requested the zoning ordinance, as applied to Cook, declared Void and the property free of zoning restrictions. The County answered and moved to dismiss Cook’s complaint, arguing that the rezoning decision was judicial or quasi-judicial in nature and that Cook was therefore required to file an application for writ of certiorari rather than a direct action in superior court to challenge the decision. The superior court found that the zoning authority’s decision on rezoning the property was legislative and denied the County’s motion to dismiss. The County appealed to the current case.

In affirming the superior court, the Court of Appeals states that there are two types of cases that the Supreme Court of Georgia controls. One type is a case that involves “a constitutional attack against a zoning ordinance” in which the zoning authority acts in a legislative capacity when it amends an ordinance. The second type involves a situation where “a special permit is sought under terms set out in the ordinance” thus creating a quasi-judicial capacity to determine facts and apply the law.

To determine that the County acted in a legislative the Court of Appeals states that the present case involved a constitutional attack against the challenging conditions that the County attached to the approval of the application to rezone. The Court further explained two cases previously determined in the Court of Appeals that provide examples of the two types of challenges to zoning authorities decisions as well as distinguishing a recent Supreme Court of Georgia case that could provide a counterargument to their decision. The Court reasoned in their distinction and denial to follow the Supreme Court that the decision did not Explicitly overrule the existing precedent that a constitutional challenge to a zoning authority was a legislative act. Thus, “that this case is also controlled by existing precedent, and that under well-established law, the trial court did not err by denying the County’s motion to dismiss [Cook’s] complaint … since [Cook] was not limited to review of the zoning authority’s decision by writ of certiorari.”

Hall County v Cook Communities, 2023 WL 424612 (GA App. 6/29/2023)