AN ORDINANCE BY ZONING COMMITTEE TO AMEND CITY CODE SECTION 1626.007 OF THE ATLANTA ZONING ORDINANCE TO PROVIDE THAT APPEALS FROM DECISIONS OF THE BOARD OF ZONING ADJUSTMENT ARE BY WRIT OF CERTIORARI AND MAY ONLY BE BROUGHT BY THOSE WITH STANDING; AND FOR OTHER PURPOSES.
In 1964, the Georgia Supreme Court analyzed and supported the Massey v. Butts County, 281 Ga. 244 (2006), case that held that anyone who seeks to challenge a local zoning board, such as the City of Atlanta Board of Zoning Adjustment (BZA) must establish standing by way of a special interest-aggrieved citizen test. This special interest-aggrieved citizen test requires a showing before the board that his/her property will suffer special damage as a result of the decision complained of rather than merely some damage which is common to all property owners similarly situated.
On March 6, 2017 in the case City of Cummings et al. v. Flowers et al. (S16A1884) and Kerley Family Homes LLC et al. v. Flowers et al. (S16A1885), the Georgia Supreme Court held that all appeals from quasi-judicial zoning decisions of local zoning boards such as the BZA are not directly appealable to Superior Court but must proceed by a writ of certiorari.
Because it is the city's responsibility to protect the public health, safety and general welfare of its citizens, the city is proposing to provide notice to the public of the decisions in Massey and Flowers. In addition, the city is proposing to amend the 1982 Atlanta Zoning Ordinance to address how and why appeals are processed to ensure its consistency with the Supreme Court writ of certiorari.
July 17, 2017
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Currently, the Atlanta Zoning Ordinance provides that appeals from decisions of the BZA are directly appealable to the Superior Court. However, the proposed amendment would support the findings of Massey and Flowerq and appellants would have to 1) provide the right of appeal from the decisions of the BZA; and 2) to show the board that his/her property will suffer special damage.
FINDINGS OF FACTS:
Properties location: This proposal is citywide legislation; and therefore, will not directly impact any individual property.
Property size and physical features: This proposed text amendment will not impact the size or physical feature of any property within the city.
Surrounding zoning/land uses: Since this is a citywide legislation, the existing zoning and land uses vary throughout the city.
CDP land use map designation: There are no recommended land use changes with the proposed text amendment.
The proposal is to amend Section 16-26.007 of the 1982 Zoning Ordinance to provide that appeals from decisions of the Board of Zoning Adjustment are not directly appealable to Superior Court. The request is that the appeal must first proceed (by petition of certiorari) before the BZA to demonstrate standing and show the aggrieved suffer special damage as a result of the decision complained of rather than merely some damage which is common to all property owners similarly situated.
Currently Section 16-26.007 entitled Appeals from decisions of the Board of Zoning Adjustment text reads:
1) Any person aggrieved by a decision of the board, or any officer, department, board or bureau affected by such decision, may appeal from such decision to the Superior Court of Fulton County by filing with the clerk of said court a petition in writing setting forth plainly, fully and distinctly wherein such decision is contrary to law. Such appeal shall be filed within 30 days after decision of the board is rendered.
- Notice to Board: Upon such filing, the clerk of the superior court shall give immediate notice thereof to the secretary of the board. Within the time prescribed by law, the board shall cause to be filed with said clerk a duly certified copy of the proceedings had before the board, including a transcript of the evidence heard before it, if any, and the decision of the board.
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- Judicial Procedure, Superior Court: Thereafter at the next term of the superior court, or in vacation upon 10 days' notice to the parties, the judge of such court shall proceed to hear and pass upon the appeal. In determining the questions presented by the appeal, the court shall determine whether the decision of the board is correct a matter of law.
- Supersedeas May Be Granted: The filing of an appeal in the superior court from any decision of the board shall not ipso facto act as a supersedeas, but a supersedeas may be granted by the court upon such terms and conditions as may seem reasonable and proper.
Any person aggrieved by a decision of the board, or any officer, department, board or office affected by such decision, may seek review of such decision from the Superior Court of Fulton County by petition for certiorari. Other than one with a legal or equitable interest in property that is the subject of the decision, "any person aggrieved" shall mean one who demonstrates before the board that his property will suffer special damage as a result of the decision complained of rather than merely some damage which is common to all property owners similarly situated.
- Compatibility with Comprehensive Development Plan (CDP): timing of development: Since no development project is being proposed, this consideration is not applicable.
- Availability of and effect of public facilities and services: referral to other agencies: Since no development projects are being proposed as part of the text amendment, these considerations are not applicable.
- Effect on character of the neighborhood:
- Suitability of proposed land use:
- Effect on adjacent property:
- Economic use of current zoning:
- Compatibility with policies related to tree preservation: The proposed legislation will not affect these requirements.
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STAFF RECOMMENDATION: APPROVAL