Ferguson v. Composite State Board of Medical Examiners

Carley, Justice,

concurring specially.

Appeals from decisions of the superior courts reviewing decisions of state and local administrative agencies generally must come by way of application for discretionary appeal. OCGA § 5-6-35 (a) (1). Ferguson’s mandamus action clearly sought review by the superior court of the administrative decision regarding the reinstatement of *259his medical license. Therefore, he is not entitled to a direct appeal, but was required to comply with the discretionary appeal procedures. Consolidated Gov’t of Columbus v. Barwick, 274 Ga. 176, 177 (1) (549 SE2d 73) (2001). Accordingly, I concur in Divisions 1 and 3 and in the judgment. However, I write specially because our recent decision in Sprayberry v. Dougherty County, 273 Ga. 503 (1) (543 SE2d 29) (2001) should not be overruled as the majority proposes in Division 2.

The majority asserts that “on its face Sprayberry supports the proposition that in the present case, Ferguson’s filing of a mandamus action against the Board entitled him to file a direct appeal to this Court.” However, it supports this conclusion only by selectively quoting from Sprayberry and substituting ellipses for the essential elements of its holding. The actual holding of Sprayberry is:

Appellants did not file an appeal to the superior court seeking review of the Board’s administrative decision to rezone the adjoining property. Instead, they brought a mandamus action directly against the Board, attacking the validity of the rezoning and seeking to prevent enforcement thereof. (Emphasis supplied.)

Sprayberry v. Dougherty County, supra at 504 (1). Thus, the appellants in Sprayberry were not the actual owners of the property which was rezoned. They were only neighboring landowners who did not participate in any manner in the administrative proceeding which resulted in the rezoning. See Harrell v. Little Pup Development & Constr., 269 Ga. 143, 144 (1) (498 SE2d 251) (1998). I agree that the actual participants in an administrative proceeding should not be allowed to utilize mandamus or other legal procedures to obtain a subsequent direct appeal when the substance of the action in superior court is the review of an administrative decision. See Rebich v. Miles, 264 Ga. 467 (448 SE2d 192) (1994). However, local zoning ordinances, including those of Dougherty County, generally do not provide that neighboring landowners may obtain judicial review of rezoning decisions either by appeal or certiorari, nor does any state statute so provide. See Brock v. Hall County, 239 Ga. 160, 161 (236 SE2d 90) (1977). Because the appellants in Sprayberry were not parties to the administrative rezoning decision in question and were not authorized to appeal therefrom, they did not seek mandamus merely as a substitute for judicial review of the zoning decision. Thus, unlike this case, appellate review of the order entered in the mandamus action in Sprayberry did not require compliance with the discretionary appeal provisions.

It is entirely logical to treat the owners of adjacent rezoned property differently for purposes of appellate procedure. The successful *260rezoning applicant is ordinarily a necessary party, under OCGA § 9-11-19, to a judicial challenge “of that change by neighboring landowners. [Cit.] But neighboring landowners are not necessary parties to a property owner’s appeal from an order denying his request for a zoning change.” Washington State Dept. of Corrections v. City of Kennewick, 937 P2d 1119, 1125 (Wash. App. 1997). See also Riverhill Community Assn. v. Cobb County Bd. of Commrs., 236 Ga. 856, 858 (3) (226 SE2d 54) (1976). As the majority concedes in footnote 19, OCGA § 5-6-35 (a) (1) applies “ ‘where . . . two tribunals (have) already adjudicated the case.’ [Cit.] In Sprayberry, it appears that two tribunals had not already adjudicated the variance insofar as it related to the appellants.” Indeed, two tribunals could not have adjudicated that issue, since the Sprayberry appellants were not parties to the administrative proceeding in which the rezoning decision was made.

The majority indicates that the appellants in Sprayberry may have had standing at the administrative level, yet purposely “opted out” so as to obtain a direct appeal. However, it fails to cite any authority for the remarkable proposition that neighboring landowners have an obligation to participate at the administrative level. Moreover, finding that the appellants in Sprayberry purposely declined to participate in the administrative proceeding in order to obtain a direct appeal would be insupportable in view of the fact that the administrative decision was issued three and one-half years prior to the institution of the mandamus action! By construing the neighbors’ mandamus action in Sprayberry as an appeal from an administrative decision subject to OCGA § 5-6-35 (a) (1), the majority requires this Court to place in that same category every future case involving zoning, even where the last administrative action regarding the property at issue is decades old.

I join the majority in reaffirming the rule of Rebich v. Miles, supra, that a judgment or order which is otherwise directly appealable under OCGA § 5-6-34 comes within the discretionary application procedure if the underlying subject matter of the appeal is contained in OCGA § 5-6-35. However, that statute does not apply in any and all “zoning^’ cases. By its terms, it is limited to appeals from decisions by the superior court reviewing the zoning decisions of local administrative agencies. Even though Rebich applies, the judiciary cannot rewrite the plain language of the discretionary appeal statute. “[W]e cannot consider the applicability of the application requirement in zoning cases apart from its statutory basis.” Harrell v. Little Pup Development & Constr., supra at 144 (1). See also Sprayberry v. Dougherty County, supra at 504 (1). Unless and until the General Assembly amends OCGA § 5-6-35 to make all appeals in cases wherein any zoning decision is called into question subject to the dis*261cretionary appeal procedure, this Court must continue to enforce that statute as it is written. It cannot be said that Sprayberry was among those “[a]ppeals from decisions of the superior courts reviewing decisions of . . . administrative agencies. . . .” OCGA § 5-6-35 (a) (1). Therefore, it should remain viable precedent for the limited proposition that a neighbor who brings a mandamus action to challenge the rezoning of the adjoining property can appeal directly from an adverse judgment.

Decided June 10, 2002. George B. Spears, for appellant. Thurbert E. Baker, Attorney General, Maximillian J. Changus, Assistant Attorney General, for appellee.

I am authorized to state that Justice Hunstein joins in this special concurrence.