Swafford v. Dade County Board of Commissioners

Carley, Justice,

concurring specially.

I fully concur in the judgment and in Divisions 2 through 6 of the majority opinion, dealing with the merits of the issues raised on appeal. I cannot, however, concur in Division 1 of the majority opinion holding that this case is subject to the discretionary appeal procedures of OCGA § 5-6-35 (a) (1). I find no justification for overruling Geron v. Calibre Cos., 250 Ga. 213, 216 (1) (296 SE2d 602) (1982) and Parsons v. Chatham County Bd. of Commrs., 204 Ga. App. 130 (1) (418 SE2d 459) (1992). Based on the logic and precedent of those decisions, it is clear that the judgment entered in this case is directly appealable.

OCGA § 5-6-35 (a) (1) requires applications for “[a]ppeals from decisions of the superior courts reviewing decisions of . . . local administrative agencies. . . .” The exclusive focus of this subsection is upon the nature of the entity which made the decision, and not upon the nature of the decision that was made. Nothing in OCGA § 5-6-35 (a) (1) requires an application to appeal because of the administrative nature of the decision or because, in rendering it, the entity functioned like an agency. According to the unambiguous terms of the statute, unless the decision was made by a local administrative agency, an application for appeal need not be filed. It is surely for this reason that, in Geron v. Calibre Cos., supra, this Court did not cite Kirton v. Biggers, 135 Ga. App. 416, 419 (218 SE2d 113) (1975) for the proposition that a county commission’s decision is closely analogous to that of an administrative agency, but for the decidedly different proposition that a county commission is not an administrative agency. Only the latter proposition is relevant to the question of whether OCGA § 5-6-35 (a) (1) requires an application to appeal from a decision of the superior court reviewing a decision of a county commission. Accordingly, in my opinion, this Court correctly held that a superior court’s order on review of a county commission’s decision is *650directly appealable even if it can be said that the county commission’s decision is administrative in nature. Geron v. Calibre Cos., supra at 216 (1). See also Parsons v. Chatham County Bd. of Commrs., supra at 130 (1) (also involving OCGA § 48-5-295 (b)).

Decided May 6, 1996. Farrar & Farrar, Archibald A. Farrar, Jr., Christopher L. Corbin, for appellant. Franklin & Franklin, Herbert E. Franklin, Jr., for appellee.

Trend Dev. Corp. v. Douglas County, 259 Ga. 425 (1) (383 SE2d 123) (1989) is plainly distinguishable. In Trend, this Court did not overrule Geron but merely held that applications for discretionary appeal are necessary in zoning cases. Zoning cases have a unique character, often originating in a county administrative agency and even bypassing the county commission altogether on their way to judicial review by mandamus or otherwise. See Southern States Landfill v. City of Atlanta Bd. of Zoning Adjustment, 261 Ga. 759 (410 SE2d 721) (1991); Shockley v. Fayette County, 260 Ga. 489 (396 SE2d 883) (1990).

Therefore, I believe that Geron and Parsons are controlling and should not be overruled, and that Swafford was not required to file an application for discretionary appeal. I concur specially because Swafford did file a superfluous application which this Court granted and the majority has correctly affirmed the judgment of the superior court on the merits.