dissenting.
I respectfully dissent to Division 1 of the majority opinion. This Court mistakenly dismissed the application for discretionary appeal; rather, it was the direct appeal which should have been dismissed.16
First, I disagree with the majority’s statement that all cases involving the grant or denial of mandamus are within the exclusive jurisdiction of this Court, for the reasons set forth in my dissent in Lamar County v. E.T. Carlyle Co., 277 Ga. 690 (594 SE2d 335) (2004). And while the majority is correct in stating that the underlying subject matter controls the method of appeal, see Rebich v. Miles, 264 Ga. 467, 469 (448 SE2d 192) (1994), it abandons that tenet in this case.
The underlying subject matter here is an administrative decision, an evaluation of whether the proposed project comports with the existing zoning ordinance and solid waste management plan. No policy decision by a legislative body is involved. Compare Long v. FSL Corp., 268 Ga. 479, 480 (1) (490 SE2d 102) (1997). The majority’s focus on the fact that the letter requesting the verification was sent to the Board of Commissioners rather than the County’s planning or zoning office is misplaced. First, the majority’s approach ignores the reality that, regardless of whether the request is made to the Board or the planning department, the initial decision is made at the administrative level and then approved, or not, by the Board. OCGA § 12-8-24 (g) does not provide how the required verification is to be secured, stating only that verification from the relevant jurisdiction is required. By focusing on to whom the letter requesting that verification is addressed, the majority elevates form over substance. The underlying subject matter remains unchanged.
*676Decided March 22, 2004. Chamberlain, Hrdlicka, White & Williams, James L. Paul, Matthew J. McCoyd, Fincher & Hecht, Steven M. Fincher, Murray J. Weed, for appellant. Daniel W. Lee, Morton, Morton & Associates, Thomas H. Morton, Freeman, Mathis & Gary, Dana K. Maine, Kelley R. Purdie, for appellees.Further, the majority’s analysis departs from this Court’s vigilance in ensuring that litigants do not circumvent the discretionary review procedure. “Our precedent has repeatedly emphasized that . . . litigants cannot under any circumstances dictate the procedural or jurisdictional rules of this Court.” Ferguson v. Composite State Bd. of Med. Examiners, 275 Ga. 255, 257 (1) (564 SE2d 715) (2002). This Court does not “permit litigants to control the appellate procedure, contrary to legislative intent. . . .” O. S. Advertising Co. v. Rubin, 267 Ga. 723, 725 (2) (482 SE2d 295) (1997). Yet, that is what the majority opinion allows. As long as the request pursuant to OCGA § 12-8-24 (g) is addressed to the Board, the action of the governing body will be considered “legislative,” not “administrative.” The issue of appellate jurisdiction is not governed by the address the developer puts on its request.
The legislative intent of OCGA § 5-6-35 (a) (1) is that when the superior court reviews a decision of a “lesser” tribunal, the discretionary application procedure is required. And all zoning decisions, whether determining the initial zoning classification or otherwise, are administrative. This Court has declared this principle to be a “bright-line” rule. O. S. Advertising Co., supra. Today, the majority erases this rule.
Appeal of the decision at issue requires following the discretionary review procedure of OCGA § 5-6-35 (a) (1). This Court has not granted a discretionary application, and until it does so, this case is not properly before us.
That this Court mistakenly dismissed the discretionary application does not affect our decision in this case. “Overlooking a jurisdictional defect raised by neither party in an earlier case does not dispense with our continuing obligation to inquire into the jurisdictional bases of appeals brought before this Court.” Prison Health Svcs. v. Ga. Dept. of Admin. Svcs., 265 Ga. 810, 812 (462 SE2d 601) (1995) (Fletcher, P. J., concurring specially).