CITY OF DUNWOODY v. DISCOVERY PRACTICE MANAGEMENT, INC. Et Al.

SECOND DIVISION
BARNES, P. J.,
BOGGS and RICKMAN, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

July 14, 2016

In the Court of Appeals of Georgia
A16A0058. CITY OF DUNWOODY v. DISCOVERY PRACTICE RI-002
MANAGEMENT, INC. et al.

RICKMAN, Judge.

This court granted a discretionary appeal application by the City of Dunwoody

(the “City”) from the judgment of the DeKalb County Superior Court reversing the

decision of the City of Dunwoody Zoning Board of Appeals (the “ZBA”) in a dispute

regarding whether the proposed use of property controlled by Discovery Practice

Management, Inc., d/b/a Center For Discovery and DV Dunwoody, LLC (hereinafter

collectively “Discovery”) fit within the existing zoning classification of the district

where the property is located. The ZBA determined that the City’s earlier

classification of Discovery’s proposed use of the property as a family personal care

home was erroneous. But the superior court reversed the ZBA’s determination, and
thus, reinstated the classification. The City appeals from this superior court order,

contending that the superior court erred by: (1) denying its motion to dismiss a

renewed petition for certiorari Discovery had filed pursuant to OCGA §§ 5-4-3 and

9-2-61 (a); and (2) reversing the ZBA’s decision. For the followings reasons, we

affirm the judgment.

1. The City contends that the renewal provisions of OCGA § 9-2-61 (a) did not

entitle Discovery to dismiss a timely filed petition for writ of certiorari, then renew

the petition after the expiration of the applicable limitation period.

Pursuant to OCGA § 9-2-61 (a), a case commenced within the
applicable limitation period may be dismissed and recommenced within
six months even if the limitation period has expired. The privilege of
dismissal and renewal under OCGA § 9-2-61 does not apply to a case
dismissed on the merits or to a case which was void when dismissed, but
it does apply if the dismissed case was merely voidable. A suit is also
void and incapable of renewal under OCGA § 9-2-61 (a) if there has
been a judicial determination that dismissal is authorized . . . It is settled
that the renewal provisions of OCGA § 9-2-61 apply to certiorari cases
brought pursuant to OCGA § 5-4-1 et seq.

(Citations and punctuation omitted.) Buckler v. DeKalb County, 290 Ga. App. 190,

191 (1) (659 SE2d 398) (2008).

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 Discovery filed its first petition for writ of certiorari in the superior court on

July 10, 2014, within the 30-day limitation period of OCGA § 5-4-6 (a). Pursuant to

OCGA § 5-4-6 (b), the petition and writ were required to be personally served upon

the ZBA, as respondent-in-certiorari.1 The parties did not dispute that service of the

petition and writ were perfected on the City (the opposing party or “defendant-in-

certiorari”). However, the City disputed service on the ZBA, and in September 2014,

Discovery voluntarily dismissed the action. At the time of dismissal, no judicial

determination had been entered on the petition.

In October 2014, Discovery re-filed the petition for writ of certiorari, citing

OCGA §§ 5-4-32 and 9-2-61 (a). Subsequently, the City filed a motion to dismiss the

1
See Gornto v. City of Brunswick, 119 Ga. App. 673 (168 SE2d 323) (1969)
(construing statute requiring service on respondent-in-certiorari to mean personal
service).
2
OCGA § 5-4-3 provides
When either party in any case in any inferior judicatory or before any
person exercising judicial powers is dissatisfied with the decision or
judgment in the case, the party may apply for and obtain a writ of
certiorari by petition to the superior court for the county in which the
case was tried, in which petition he shall plainly and distinctly set forth
the errors complained of. On the filing of the petition in the office of the
clerk of the superior court, with the sanction of the appropriate judge
endorsed thereon, together with the bond or affidavit, as provided in

3
re-filed petition on the basis that it was void ab initio because the original petition and

writ were never properly served on ZBA pursuant to OCGA § 5-4-6 (b) before the

action was dismissed and that, therefore, the dismissed action was void and not

subject to renewal under OCGA § 9-2-61 (a). Discovery filed a response to the

motion to dismiss, arguing that the City failed to meet its burden of showing improper

service of the original petition and writ because, inter alia, personal service was not

required for renewal, and that even assuming personal service was required,

Discovery had shown good cause to excuse such service.

The trial court determined that the requisite personal service pursuant to OCGA

§ 5-4-6 was not perfected upon the ZBA,3 but that the lack of personal service as to

ZBA did not render the petition void and, thus, a bar to renewal. For the reasons

explained below, we hold that lack of service on ZBA, the respondent, did not make

the original action void.

Code Section 5-4-5, it shall be the duty of the clerk to issue a writ of
certiorari, directed to the tribunal or person whose decision or judgment
is the subject matter of complaint, requiring the tribunal or person to
certify and send up all the proceedings in the case to the superior court,
as directed in the writ of certiorari.
3
Discovery did not file a cross-appeal as to this determination.

4
 [T]he failure to deliver, within the time required by the statute, the
petition and writ to the officer whose decision is under review . . . is a
mere irregularity which can be cured either by a waiver by the officer
himself, evidenced by the filing of his answer, or by an extension of
time by the judge of the superior court.

Bass v. Milledgeville, 121 Ga. 151, 153 (48 SE 919) (1904); see Hudson v. Watkins,

225 Ga. App. 455, 456 (1) (484 SE2d 24) (1997). Accordingly, failure to comply with

service requirements regarding the officer whose decision is under review “will not

render the proceeding void,” Bass, 121 Ga. at 153, but instead, voidable. Given that

a case is capable of renewal under OCGA § 9-2-61 (a) if when the case was dismissed

it was merely voidable, OCGA § 9-2-61 (a) applies in the instant case, and the

superior court properly denied the City’s motion to dismiss Discovery’s renewed

petition.

The City argues that pursuant to Fisher, 212 Ga. App. 635 (442 SE2d 762)

(1994), Discovery’s failure to comply with service requirements of OCGA § 5-4-6

rendered the original petition void unless notice was given to the ZBA pursuant to

OCGA § 5-4-3 (by the clerk of court), and that because no notice pursuant to OCGA

§ 5-4-3 was given in the instant case, the petition was void. We disagree. In Fisher,

service of the original petition was not perfected upon the tribunal whose decision

5
was under review, and this Court held that the petition, although properly dismissed

for lack of service under OCGA § 5-4-6 (b), could be renewed pursuant to OCGA §

9-2-61. Fisher, 212 Ga. App. at 636-637. Although this Court acknowledged that the

tribunal had received notice of the petition pursuant to a procedure authorized by

statute (OCGA § 5-4-3), this Court did not hold that such notification was a

prerequisite to renewal. Id. Nothing in Fisher contradicts the Bass rule. Therefore, the

trial court properly denied the City’s motion to dismiss Discovery’s renewed

petition.4

2. The City contends that the superior court erred by, among other things,

reversing the ZBA’s decision by ruling that neighbors were not entitled to notice of

the city planner’s classification decision and by ruling that the ZBA wrongly

construed the city zoning ordinance to require notice.

The record shows the following. Discovery sought to open a six bed home for

the treatment of adolescents with eating disorders. In January 2014, the City of

Dunwoody planner/director of sustainability (“city planner”) issued a letter

4
To the extent that the trial court misconstrued the holding in Fisher, we will
affirm its ruling if it is right for any reason. Reed v. Reed, 295 Ga. 574, 578 (2) (761
SE2d 326) (2014) (“We may affirm the judgment of a lower court so long as it is right
for any reason.”) (citation and punctuation omitted).

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(“confirmation”) to Discovery, classifying Discovery’s stated proposed use for the

subject property as a family personal care home, and informing Discovery that such

was a permitted “use by right” in the single-family residential zoning district in which

the property was located.5 In April 2014, some nearby residents who had found out

(in March 2014 ) about the use to which the property (an existing home ) was going

to be put, filed an application for administrative appeal with the ZBA. The ZBA voted

to accept the appeal and held hearings on the matter. The neighbors challenged the

classification of the land use as a personal care home, arguing that the city planner

was not informed of material facts when she made the classification decision and that

Discovery’s intended use for the property was as a medical treatment facility, which

was not a permitted use.

The ZBA sustained the appeal, determining that the “staff decision to classify

this as a personal care home was in error . . . [o]r incorrect.” Discovery thereafter

appealed ZBA’s decision to the superior court, which ruled that, among other things,

the neighbors’ appeal to the ZBA was untimely and the ZBA erred as a matter of law

5
At the time, the City of Dunwoody did not have a community development
director, and the city planner issued the letter pursuant to authority previously
delegated to her to act as community development director.

7
by accepting the appeal and reading into the ordinance a notice requirement that

otherwise did not exist.

“We review the construction of a zoning ordinance under a de novo standard.”

(Citations omitted.) Burton v. Glynn County, 297 Ga. 544, 546 (1) (776 SE2d 179)

(2015). The scope of review of the superior court is “limited to all errors of law and

determination as to whether the judgment or ruling below was sustained by

substantial evidence.” OCGA § 5-4-12 (b). “[T]he substantial-evidence standard is

effectively the same as the any-evidence standard.” (Citation and punctuation

omitted.) City of Atlanta Govt. v. Smith, 228 Ga. App. 864, 865 (1) (493 SE2d 51)

(1997).

Pursuant to Section 27-458 of the Dunwoody Zoning Ordinance in effect at the

time of the appeal to the ZBA, the neighbors – assuming they had standing6 – had 30

days from the date of the city planner’s decision to appeal the decision, and the

ordinance did not require that notice of the decision be given to neighboring property

6
Section 27-457 of the Dunwoody Zoning Ordinance authorized “any person
aggrieved by . . . any final order, requirement, or decision of an administrative
official, based on or made in the enforcement of the this zoning ordinance” to appeal
the administrative decision.

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owners by mail, by signage, or by publication in a newspaper.7 And in the instant

case, the neighbors filed their appeal 98 days after the date of the decision. At the

ZBA hearings, the neighbors argued that they were unaware of the confirmation

within 30 days of its issuance, and that unless the ordinance was construed as

impliedly requiring that notice be given to them, the appeal provisions of the zoning

ordinance violated due process. The ZBA accepted the appeal, thus, impliedly reading

a notice provision into the ordinance.

“The construction of a zoning ordinance is a question of law for
the courts. Zoning ordinances are to be strictly construed in favor of the
property owner. Since statutes or ordinances which restrict an owner’s
right to freely use his property for any lawful purpose are in derogation
of the common law, they must be strictly construed and never extended
beyond their plain and explicit terms.”

Haralson County v. Taylor Junkyard of Bremen, Inc., 291 Ga. 321, 323-324 (729

SE2d 357) (2012); Cherokee County v. Martin, 253 Ga. App. 395, 396 (1) (559 SE2d

138) (2002). In construing a zoning ordinance, “the cardinal rule is to ascertain and

7
The ordinance was amended in January 2015, which date was after the ZBA’s
decision. The amended ordinance contained a provision that authorized the ZBA to
waive the 30-day deadline and allow an appeal to be filed within 30 days of actual or
constructive notice of the decision. Additionally, the amended ordinance required that
notice of the decision be given to adjacent property owners.

9
give effect to the intention of the lawmaking body.” (Punctuation and footnote

omitted.) Northside Corp. v. City of Atlanta, 275 Ga. App. 30, 31 (1) (619 SE2d 691)

(2005).

Here, “the language of the ordinance is plain and unambiguous, and does not

lead to contradictory, absurd, or wholly impracticable results, [and] it is the sole

evidence of legislative intent and must be construed according to its terms.”

(Punctuation and footnote omitted.) Northside Corp., 275 Ga. App. at 32 (2). The

ordinance explicitly provided that use of property as a family personal care home was

permitted as of right in the residential zoning district where the property was located.

And it is undisputed that the plain language of the ordinance did not require that

neighboring property owners be given notice of a city official’s decision that a

homeowner’s stated proposed use for his/her property was permitted under the

existing zoning classification as a matter of right.

We reject the City’s argument that “to maintain the constitutionality of the

appeals provision of the Zoning Ordinance . . . the courts must imply a notice

requirement, otherwise the Ordinance simply ignores foundational due process

constraints” by not affording notice to those who may appeal the zoning decision.

Procedural due process includes the right to notice and an opportunity to be heard.

10
See Glass Systems, Inc. v. Ga. Power Co., 288 Ga. 85, 87 (1) (703 SE2d 605) (2010).

“The principles of due process extend to every proceeding judicial or administrative

or executive in its nature at which a party may be deprived of life, liberty, or

property.” (Citation and punctuation omitted.) Cobb County School Dist. v. Barker,

271 Ga. 35, 37 (2) (518 SE2d 126) (1999). Due process rights were not triggered in

the instant case.

The ordinance explicitly required that public notice (i. e., by placing a yard sign

in a conspicuous location on the property, or by publication in a newspaper) and/or

notice by mail be given prior to any zoning or land use amendment, or prior to the

issuance of special land use permits, variances, special exceptions, or administrative

permits. See, e.g., Atlantic Refining Co. v. Spears, 214 Ga. 126, 127 (103 SE2d 547)

(1958) (“Where proper notice is given and an actual hearing is had, the rezoning of

property does not violate the due process laws of the Constitution.”). Here, the city

planner’s confirmation did not change the existing zoning of the district where the

property at issue was located; it did not authorize a non-permitted use of land or any

variance or exception from permitted uses; nor did it deprive the complainants of life,

liberty, or property. The City cites no authority, and we found none, holding that due

process required that neighboring property owners be given notice aside from that

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provided in the ordinance of a homeowner’s permitted use of his/her property as of

right. As the city planner testified at one of the ZBA hearings in this matter, “a use

by right [was] not something that requires notification,” and “if at any time, the

proposed use exceeds their threshold of a personal care home, then those activities

on the lot are not deemed allowable by the letter or by the ordinance. Indeed, in the

event of use outside the existing zoning classification, the neighbors and City would

not be without a remedy. See generally Burton, 297 Ga. at 544-548 (1) (trial court

properly granted county’s counterclaim for declaratory judgment where homeowners

were violating a zoning ordinance by using their property for large-scale gatherings,

which use fell outside the scope of the single-family residential use for which the

district was zoned); Hall v. Trubey, 269 Ga. 197-200 (1) (498 SE2d 258) (1998)

(despite issuance of building permits, where property owner had not received zoning

variance to construct residential units on property zoned strictly for commercial use,

adjacent property owner’s action for injunction was not barred by laches even though

formal lawsuit was not filed until several months after construction project began);

Maloof v. Gwinnett County, 231 Ga. 164-166 (200 SE2d 749) (1973) (trial court

properly granted interlocutory injunction sought by county and nearby property

12
owners who sought to abate homeowners’ use of their property as a commercial dog

kennel in a zoning district of the county in which such use was not permitted).

By accepting the appeal, the ZBA impermissibly read a notice requirement into

the ordinance, where there was not one and where the language of the ordinance

evidenced no intent that any special notice be given for the use permitted as a matter

of right in this case. The ZBA erroneously construed the ordinance despite its plain

language and the superior court, in accordance with its obligation to construe Section

27-458 of the Dunwoody Zoning Ordinance as a matter of law, see Northside Corp.,

275 Ga. App. at 31 (1), correctly ruled so.

“Municipal ordinances are entitled to a presumption of validity, and will be

sustained unless clearly invalid.” (Citation and punctuation omitted.) Buckler v.

DeKalb County Bd. of Commrs., 299 Ga. App. 465, 467 (2) (683 SE2d 22) (2009).

In the instant case, the appeals provisions of the zoning ordinance were not clearly

invalid, and the superior court’s reversal of the ZBA’s contrary interpretation is

correct and must be affirmed.

3. Given our conclusion that the ZBA erred by accepting the appeal, we need

not reach the remaining enumerated errors.

Judgment affirmed. Barnes, P. J., and Boggs, J., concur.

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