SECOND DIVISION
BARNES, P. J.,
RICKMAN and BROWN, 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
August 28, 2018
In the Court of Appeals of Georgia
A16A1794. SWEET CITY LANDFILL, LLC et al. v. ELBERT
COUNTY et al.
RICKMAN, Judge.
Appellants Sweet City Landfill, LLC, J. B. Wright, and Jack Stovall, Jr.
(collectively, “Sweet City”) appeal the trial court’s November 2015 order granting the
motion to dismiss filed by Appellees Elbert County, The Board of Commissioners of
Elbert County, and the County Manager of Elbert County (collectively, “Elbert
County”). Relying on existing precedent of the Supreme Court of Georgia, we
previously dismissed this appeal based on Sweet City’s failure to follow the
discretionary appeal process. The Supreme Court subsequently granted Sweet City’s
petition for certiorari, vacated our decision, and remanded the case to this Court for
reconsideration in light of two recent decisions, Schumacher v. City of Roswell, 301
Ga. 635 (803 SE2d 66) (2017), and Shelley v. Town of Tyrone, 302 Ga. 297 (806
SE2d 535) (2017). For reasons that follow, we affirm.
Sweet City initially filed a “Verified Complaint for Declaratory Judgment, and
Injunctive Relief” against Elbert County, seeking declarations that its waste disposal
facility was not required to obtain a special use permit, that Elbert County’s Solid
Waste Disposal Ordinance was unconstitutional on various grounds, and that Sweet
City had a vested right to develop and operate a waste disposal facility
notwithstanding the Elbert County zoning ordinance and map. Sweet City also sought
a mandatory injunction to require Elbert County to issue a special use permit, if
necessary, to allow Sweet City to develop and operate the waste disposal facility.
Elbert County moved to dismiss the complaint, and Sweet City moved for summary
judgment. The trial court subsequently issued an order in September 2014:
granting summary judgment to Sweet City on the grounds that the
County’s Solid Waste Ordinance violated the dormant Commerce
Clause of the United States Constitution, and that the July 9, 2012 Board
action deprived Sweet City of equal protection under both the United
States and Georgia Constitutions; declaring that Sweet City has a vested
right to have the County issue “a letter of zoning and development
compliance and consistency with the County’s solid Waste Management
Plan”; declaring that Sweet City has a vested right to develop the
property as a landfill free of any zoning and land use restrictions; and,
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granting a temporary injunction against the County from enacting or
enforcing ordinances so as to interfere with Sweet City’s development.
The superior court also denied the County’s motion to dismiss, rejecting
the County’s argument that Sweet City had to exhaust its administrative
remedies prior to filing suit.
Elbert County v. Sweet City Landfill, 297 Ga. 429, 431 (774 SE2d 658) (2015).
After granting Elbert County’s application for discretionary appeal, the
Supreme Court of Georgia held that the trial court did not err in ruling that the Board
of Commissioners of Elbert County (the “Board”) took no action on Sweet City’s
application for a special use permit, but did err in rejecting Elbert County’s argument
that the trial court must dismiss the matter due to Sweet City’s failure to exhaust its
administrative remedies. Id. at 432-433 (1). The Supreme Court further held that
based on Sweet City’s failure to obtain a final decision from the Board, the trial court
erred in reaching the merits of Sweet City’s claim of a vested right in the issuance of
a letter of compliance and in addressing Sweet City’s equal protection claim. Id. at
433-434 (1). With respect to Sweet City’s facial challenge to the constitutionality of
Elbert County’s solid waste ordinance, the Supreme Court held that the claim was not
subject to an exhaustion requirement, but that the trial court had erred in failing to
apply the balancing test set forth in Pike v. Bruce Church, Inc., 397 U. S. 137 (90 SCt
3
844, 25 LEd2d 174) (1970), and remanded the case for it to do so. Elbert County, 297
Ga. at 434-436 (2).
After the case was remanded to the trial court, Elbert County repealed and
replaced the challenged ordinance and filed a motion to dismiss, contending that the
amended ordinance rendered the remaining claim, the facial challenge to the
ordinance, moot. Following a hearing, the trial court granted Elbert County’s motion.
Sweet City appeals this ruling, contending that the trial court erred in dismissing the
declaratory judgment action based on mootness, failing to analyze Sweet City’s
vested rights, and failing to follow the direction of the Georgia Supreme Court on
remand.
1. We must first reconsider our determination that an application for
discretionary appeal was required in this case. Even with recent authority from the
Georgia Supreme Court, determining whether a direct appeal or a discretionary appeal
is appropriate in a case involving zoning issues requires us to a navigate a tortuous
path.
Pursuant to OCGA § 5-6-35 (a) (1), appeals from decisions of the superior
courts reviewing decisions of state and local administrative agencies must be made
by filing an application for discretionary appeal. In 1989, the Georgia Supreme Court
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held that “all zoning cases appealed either to the Court of Appeals or the Supreme
Court of Georgia must hereafter come by application.” Trend Dev. Corp. v. Douglas
County, 259 Ga. 425, 426 (1) (383 SE2d 123) (1989). This rule also applied to
appeals from a trial court’s ruling on a challenge to the constitutionality of a zoning
ordinance on its face. See O. S. Advertising Co. of Ga. v. Rubin, 267 Ga. 723, 725 (2)
(482 SE2d 295) (1997). In Schumacher v. City of Roswell, 301 Ga. 635, 636-638 (1)
(803 SE2d 66) (2017) , the Georgia Supreme Court determined that a stand-alone
lawsuit challenging an ordinance as facially invalid is not a “zoning case” under
Trend and Rubin and therefore does not require a discretionary application. The
Schumacher Court did not overrule Trend or Rubin, instead concluding that “a careful
reading of [Trend and Rubin] shows that they can be reconciled with OCGA § 5-6-35
(a) (1) because a ‘zoning case’ is a case involving a ‘decision’ by an ‘administrative
agenc[y]’ dealing with the zoning or allowed use of a particular parcel of land.” Id.
at 638 (2).
The issue in Schumacher was whether a city council’s adoption of a new
zoning code was a “decision” of a “local administrative agency.” Id. at 637 (1). A
“decision,” as the term is used in OCGA § 5-6-35 (a) (1), refers to an administrative
determination of an adjudicative, as opposed to an executive or legislative, nature.
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State v. Intl. Keystone Knights of the Ku Klux Klan, 299 Ga. 392, 403-404 (4) (a) (788
SE2d 455) (2016). The distinction between an adjudicative determination and a
legislative determination has been defined as follows:
Administrative determinations of a legislative nature are prospective in
application, general in application, and often marked by a general
factual inquiry that is not specific to the unique character, activities or
circumstances of any particular person. Determinations of an
adjudicative nature, on the other hand, are immediate in application,
specific in application, and commonly involve an assessment of facts
about the parties and their activities, businesses, and properties.
(Citations and punctuation omitted.) Id. at 401 (4) (a). In Schumacher, because the
lawsuit only challenged the city council’s adoption of a development code and sought
no individualized zoning-related relief, and the adoption of the new development
code was prospective in nature, the majority determined that the adoption of the new
code was an exercise of legislative power and therefore was not an adjudicative
“decision” under the statute. Schumacher, 301 Ga. at 637 (1).
The Court in Schumacher further determined that the city council was not
acting as an “administrative agency,” noting that “[t]he enactment of ordinances is at
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the core of the City Council’s legislative functions.” Id. at 638 (1).1 Because there
was not a “decision” by an “administrative agenc[y]” as required by OCGA § 5-6-35
(a) (1), the Court held that an application for discretionary appeal was not required,
id., and that Trend and Rubin did not apply. Id. at 638-639 (2).
Another twist in the process of determining whether a case is a “zoning case”
is that we must look not only to the issue on appeal, but to the issues raised and
decided in the case below. See Schumacher, 301 Ga. at 639 (2). Although the issue
on appeal in Rubin was whether a sign ordinance was unconstitutional, the Court in
Schumacher noted that “Rubin still involved an appeal from an administrative
agency’s denial of an individual variance request” because appeal was taken from the
denial of a landowner’s application for a sign ordinance variance. Id. Thus, Rubin was
a “zoning case” because it initially involved an individualized determination by an
“administrative agency” as to the zoning or permitted use of a particular parcel of
land. Id.
1
The Court in Schumacher did not consider whether a city council, an elected
body, could be properly labeled an “administrative agency” under any circumstances,
but instead focused on the function being performed by the council to determine if it
was acting as an “administrative agency.”
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Applying these principles to this case, we conclude that this is not a “zoning
case” that requires an application for discretionary appeal. When the Georgia
Supreme Court remanded this case to the superior court, the only claim remaining
was Sweet City’s facial challenge to the constitutionality of Elbert County’s solid
waste ordinance under the dormant Commerce Clause of the United States
Constitution. As in Schumacher, the adoption of the ordinance was an exercise of
legislative power and therefore not an adjudicative “decision” of an “administrative
agenc[y]” under OCGA § 5-6-35 (a) (1). See Schumacher, 301 Ga. at 637 (1). Unlike
Schumacher, however, this was not a stand-alone lawsuit challenging an ordinance
as facially invalid because Sweet City initially sought a special use permit and later
a determination that its waste disposal facility was not required to obtain the special
use permit mandated by the ordinance, arguably requiring an individualized
determination about a particular property. But the Board took no action on Sweet
City’s application for a special use permit and therefore made no individualized
determination about a particular property. Because no adjudicative “decision” was
made here, this is not a “zoning case” under Trend or Rubin. See Schumacher, 301
Ga. at 635. Accordingly, Sweet City’s direct appeal is properly before this Court.
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2. Sweet City contends that the trial court erred by dismissing its action as
moot.
On September 14, 2015, the Board repealed and replaced its solid waste
ordinance, which required a special use permit prior to locating any new private
landfill, waste disposal area or waste storage area in Elbert County. The 2015
ordinance eliminated from the prior ordinance the provisions challenged by Sweet
City, replacing what had been “requirements” for obtaining a special use permit with
factors that should be considered when reviewing an application for a special use
permit.
Because the prior solid waste ordinance is no longer effective, “judicial
resolution of [Sweet City]’s challenge to it would amount to the determination of an
abstract question that would give [it] no relief.” (Citations and punctuation omitted.)
Shelley v. Town of Tyrone, 302 Ga. 297, 307 (3) (806 SE2d 535) (2017). “[A]nd the
appellate court is not required to retain a moot case and decide it because a party
might possibly derive some future benefit from a favorable adjudication on an
abstract question.” (Citation and punctuation omitted.) Scarbrough Group v. Worley,
290 Ga. 234, 236 (719 SE2d 430) (2011).
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Relying on Coffey v. Fayette County, 289 Ga. App. 153 (656 SE2d 262)
(2008), Sweet City contends that the mootness doctrine does not bar claims for
damages under 42 USC § 1983, and that it is entitled to damages incurred when the
prior ordinance was enforced against it. In Coffee, this Court held that an amendment
to a sign ordinance did not moot a claim for damages based on the enforcement of the
prior sign ordinance, portions of which had been found unconstitutional. Id. at 155
(1) (b). Here, however, the prior solid waste ordinance was never enforced against
Sweet City and therefore its damages claim will not save its constitutional claim from
mootness. See Elbert Co., 297 Ga. at 433 (1) (the Board took no action on Sweet
City’s application for a special use permit under the prior ordinance); see also DA
Mtg. v. City of Miami Beach, 486 F.3d 1254, 1260 (I) (A) (11th Cir. 2007).
Relying on WMW, Inc. v. American Honda Motor Co., 291 Ga. 683, 685 (2)
(733 SE2d 269) (2012), Sweet City contends that the trial court erred in dismissing
its claims because Elbert County’s voluntary cessation of challenged conduct does
not render the case moot. In WMW, the Georgia Supreme Court, relying on federal
authority, adopted the voluntary cessation doctrine, which provides that the
“voluntary cessation of challenged conduct does not ordinarily render a case moot
because a dismissal for mootness would permit a resumption of the challenged
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conduct as soon as the case is dismissed.” (Citation and punctuation omitted.) Id. at
685 (2). The Court in WMW also recognized that “[a] narrow exception to the
voluntary cessation doctrine exists where the subsequent events make it absolutely
clear that the allegedly wrongful behavior could not reasonably be expected to recur,”
and that the “heavy burden of persuading the court that the challenged conduct cannot
reasonably be expected to start up again lies with the party asserting mootness.”
(Citations and punctuation omitted.) Id. at 685 (2).
While it is true that the burden of proving mootness generally falls heavily on
the party asserting it, “governmental entities and officials have been given
considerably more leeway than private parties in the presumption that they are
unlikely to resume illegal activities.” Coral Springs Street Systems v. City of Sunrise,
371 F3d 1320, 1328-1329 (II) (A) (11th Cir. 2004). “[W]hen the defendant is not a
private citizen but a government actor, there is a rebuttable presumption that the
objectionable behavior will not recur.” (Emphasis in original.) Troiano v. Supervisor
of Elections in Palm Beach County, 382 F3d 1276, 1283 (II) (11th Cir. 2004). “When
government laws or policies have been challenged, the [United States] Supreme Court
has held almost uniformly that cessation of the challenged behavior moots the suit.”
Id. at 1283 (II). “The [Supreme] Court has rejected an assertion of mootness in this
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kind of challenge only when there is a substantial likelihood that the offending policy
will be reinstated if the suit is terminated.” (Emphasis in original.) Id. at 1283-1284
(II).
“Whether the repeal of a law will lead to a finding that the challenge to the law
is moot depends most significantly on whether the court is sufficiently convinced that
the repealed law will not be brought back.” (Citation and punctuation omitted;
emphasis in original.) Nat. Advertising Co. v. City of Miami, 402 F3d 1329, 1334
(11th Cir. 2005). Here, the trial court determined that “there is no evidence that Elbert
County intends to re-enact the prior version of the ordinance,” recognizing that
counsel for Elbert County had expressly stated that Elbert County would not reenact
the prior ordinance. Sweet City has not pointed to any evidence to the contrary, and
in the absence of evidence indicating that Elbert County intends to return to the prior
ordinance, Sweet City’s legal challenge to it is moot. See id.2 The fact that Elbert
County repealed the prior ordinance during litigation does not alter this result as
“[t]he existence of litigation does not, in and of itself, preclude a municipality or
county from rectifying the deficiency highlighted by the litigation.” (Citations and
2
To the extent that Sweet City also seeks to challenge the 2015 ordinance, that
issue is not properly before us. See Shelley, 302 Ga. at 307-308 (3).
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punctuation omitted.) Shelley, 302 Ga. at 307 (3). Nor does this case fall within the
narrow exception to the doctrine of mootness when the issue is capable of repetition
yet evades review. See Hopkins v. Hamby Corp., 273 Ga. 19 (538 SE2d 37) (2000).
3. Sweet City contends that the trial court erred in failing to analyze Sweet
City’s claim of vested rights, arguing that those rights preclude Elbert County from
applying the 2015 ordinance to its application for a special use permit.
This issue is not properly before us given the Georgia Supreme Court’s
determination in the earlier appeal that the trial court erred in reaching the merits of
Sweet City’s claim to have a vested right in the issuance of a letter of compliance
because
Sweet City’s failure to obtain a final decision from the Board and afford
it the opportunity to address its claim of a vested right to a [special use
permit] made it impossible for the superior court to determine whether
Sweet City’s vested rights have been violated, since the appropriate
County authority never denied it any such permit.
(Citation and punctuation omitted.) Elbert County, 297 Ga. at 433-434 (1).
4. Sweet City contends that the trial court erred by failing to follow the
direction of the Georgia Supreme Court on remand to apply the test set forth in Pike,
397 U. S. 137, to determine whether the prior ordinance violates the Commerce
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Clause before considering any other issue. Mootness, however, is an issue of
jurisdiction and must be determined before a court addresses the merits of a claim.
See Shelley, 302 Ga. at 308 (3). Thus, the trial court properly considered the issue of
mootness first. See id.
Judgment affirmed. Barnes, P. J., and Brown, J., concur.
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