dissenting.
I dissent to the dismissal of the appeal in this declaratory judgment case, because I do not agree that the City’s setoff of Dunlap’s pension benefits was a local administrative decision.
The conclusion that the setoff was such an administrative action is based upon the majority’s mistaken assumption that “Dunlap could have appealed the City’s decision to the City Board of Trustees.” Footnote 3 erroneously states that the Board of Trustees of the City’s pension fund “has the power to reconcile disputes over decisions” affecting pension benefits. (Emphasis supplied.) To the contrary, the Board makes such decisions directly, and it is not a board of appeal in either nomenclature or substance. Indeed, the Board made the initial decision to award the in-line-of-duty pension. Ga. L. 1981, pp. 4376, 4378; City Pension Code § 6-142 (b). Two years later, Dunlap received a final award of workers’ compensation benefits, and the pension coordinator sent a letter informing him of the setoff formula used by the City. This letter merely set forth the current state of the applicable law, as interpreted by the Board. As such, the Board’s letter was no more an “administrative decision” than would be a letter from an employee of a city zoning department informing a new landowner of his property’s current zoning classification.
In the zoning context, there can be no administrative decision until the property owner begins the administrative process by applying for a rezoning. See Harrell v. Little Pup Development & Constr., 269 Ga. 143, 144 (1) (498 SE2d 251) (1998); Powell v. City of Snellville, 266 Ga. 315, 316 (467 SE2d 540) (1996); Village Centers v. DeKalb County, 248 Ga. 177, 178 (2) (281 SE2d 522) (1981). Likewise, there is no administrative pension decision until the Board of Trustees is asked to make rules for carrying out the provisions of the 1978 Pension Plan Act, “to reconcile conflicts therein, if any shall exist,” or “to provide for the equitable disposition of any matter not specifically covered by this act.” (Emphasis supplied.) Ga. L. 1982, pp. 4385, 4389; City Pension Code § 6-141 (b). Contrary to the majority’s opinion, nothing in the Act authorizes an “appeal” to the Board from any previous administrative decision. Instead, the Board is authorized to make the initial decision regarding a dispute over the Act. Once the Board makes a decision interpreting the Act or denying benefits, then a decision of the superior court reviewing the Board’s decision can come before this Court or the Court of Appeals only by way of discretionary appeal. OCGA § 5-6-35 (a) (1); Carrigan v. City of Atlanta, 180 Ga. App. 741 (350 SE2d 482) (1986). However, it is undisputed that the Board made no decision in this case. Dunlap has bypassed administrative review entirely and, thus, OCGA § 5-6-35 (a) (1) did not require him to comply with the discretionary appeal procedures. See Harrell v. Little Pup Development & Constr., supra at *526144 (1). OCGA § 5-6-35 (a) (1) applies only where the superior court has reviewed a decision of another lower tribunal. Rebich v. Miles, 264 Ga. 467, 468 (448 SE2d 192) (1994). The only tribunal which has made any decision here is the superior court. In my opinion, therefore, we should consider this direct appeal on the merits.
Decided May 30, 2000 Reconsideration denied June 30, 2000. Jewett & Clark, Robin F. Clark, for appellant. Susan P. Langford, Bruce P. Johnson, Clifford E. Hardwick TV, for appellee. I am authorized to state that Presiding Justice Fletcher and Justice Hunstein join in this dissent.