NELSON v. FULTON COUNTY (2003)

Ruth Nelson filed a complaint seeking declaratory and injunctive relief against Fulton County and the Fulton County Board of Commissioners (collectively, the “County”), challenging their denial of her application to rezone a parcel of property.   The superior court dismissed Nelson's complaint as untimely.   Nelson filed a direct appeal.   Because “all appeals in zoning cases require an application,” ¹ we dismiss this direct appeal for lack of jurisdiction.

Under OCGA § 5-6-35(a)(1), an appeal of a superior court's review of an administrative agency's decision requires an application for discretionary appeal.  Trend Dev. Corp. set out a bright-line rule that all appeals to either appellate court in zoning cases must come by application.²  In Ferguson v. Composite State Bd. &c.,³ the Supreme Court clarified that a party to a decision rendered by an administrative body must follow the appeal procedure dictated by the underlying subject matter.⁴  The Supreme Court went on to state in Fulton County v. Congregation of Anshei Chesed⁵ that “a party to the decision of an administrative agency may not avoid the requirements of filing an application to appeal in the appellate courts by filing in superior court an action from which a direct appeal is authorized by OCGA § 5-6-34.” ⁶  Accordingly, Nelson may not circumvent the discretionary appeal requirement in this Court by filing a declaratory action in the superior court.   Pursuant to OCGA § 5-6-35(a)(1), Nelson was required to file an application to appeal the dismissal of her suit against the County.

Appeal dismissed.

FOOTNOTES

1.   O.S. Advertising Co. of Ga. v. Rubin, 267 Ga. 723, 724, 482 S.E.2d 295 (1997), citing Trend Dev. Corp. v. Douglas County, 259 Ga. 425, 426(1), 383 S.E.2d 123 (1989).

2.   Trend Dev. Corp., supra at 426(1), 383 S.E.2d 123.

3.   275 Ga. 255, 564 S.E.2d 715 (2002).

4.   Id. at 256-257(1), 564 S.E.2d 715.

5.   275 Ga. 856, 572 S.E.2d 530 (2002).

6.   Id. at 857(1), 572 S.E.2d 530.

MIKELL, Judge.

JOHNSON, P.J., and ELDRIDGE, J., concur.