ALPHA LAND PARTNERS LLC v. CITY OF ALPHARETTA (2026)

Alpha Land Partners, LLC appealed to superior court the City of Alpharetta's denial of an application for a conditional use permit for land that it owned. Among other things, Alpha Land asserted arguments to the superior court that the court construed to be constitutional challenges to the underlying zoning ordinance. The superior court affirmed the denial of the permit application but dismissed Alpha Land's constitutional challenges to the ordinance, instead of ruling on their merits.

On appeal, Alpha Land asserts that the superior court erred in refusing to consider the constitutional challenges to the zoning ordinance. We agree, so we reverse that part of the superior court's order dismissing those challenges and remand for the superior court to consider the constitutional arguments in the first instance.

Alpha Land also challenges the sufficiency of the evidence supporting the city's decision to deny the permit application. Because the resolution of the constitutional arguments may affect this claim of error, we vacate that part of the superior court's order affirming the city's denial of the application. On remand, the superior court may reconsider the sufficiency of the evidence after considering the constitutional arguments.

We do not reach any other rulings within the superior court's order because those rulings have not been challenged on appeal.

1. Facts and procedural background

Alpha Land owns real property in the City of Alpharetta, previously used as a retail furniture store, that it sought to sell or lease to an entity called Tractor Supply Company. The city's zoning ordinance, the Unified Development Code, required a conditional use permit for Tractor Supply Company's proposed use of the property.¹ The city council, however, denied the application for a permit.²

On July 24, 2024, Alpha Land filed in superior court a petition for review from the denial of the permit application, enumerating several errors. See generally OCGA §§ 5-3-2(b), 5-3-6(a) (providing for appeals to superior or state court from decisions of lower judicatories by way of petitions for review). Relevant to the issues in this appeal, Alpha Land enumerated some errors that the superior court construed to specifically relate to the denial of the permit application, and some errors that the superior court construed more generally to challenge the constitutionality of the city's Unified Development Code, as applied to Alpha Land's property.

As to the enumerations construed to specifically relate to the denial of the permit application, the superior court applied the criteria set forth in the Unified Development Code to find that the evidence of record supported the decision, so he affirmed it. But the superior court held that he lacked jurisdiction to consider constitutional challenges to the Unified Development Code on the ground that such challenges could not be raised in a petition for review, so he dismissed those challenges. We granted discretionary appellate review.

2. Legal framework

The Zoning Procedures Law, OCGA § 36-66-1 et seq., provides mechanisms for superior court review of a local government's exercise of zoning powers. OCGA § 36-66-5.1(a). The Code section setting forth those mechanisms, which was enacted in 2022, describes two methods of obtaining superior court review. Id.

First, the Zoning Procedures Law provides for direct, de novo superior court review of constitutional challenges to “zoning decisions.” OCGA § 36-66-5.1(a)(1). It defines a “zoning decision” as “final legislative action by a local government” resulting in one of several enumerated outcomes, including the adoption, repeal, or amendment of a zoning ordinance. OCGA § 36-66-3(4).

Second, the version of the Zoning Procedures Law governing this appeal provides for “appellate review by the superior court pursuant to its appellate jurisdiction from a lower judicatory body” for two categories of decisions: “quasi-judicial decisions” and “zoning decisions under subparagraph (E) of paragraph (4) of Code Section 36-66-3․” OCGA § 36-66-5.1(a)(2) (2024).³ It defines a “quasi-judicial decision” as “a final quasi-judicial action that is the exercise of quasi-judicial land use powers[.]” OCGA § 36-66-3(1.2). It defines a zoning decision under OCGA § 36-66-3(4)(E) as “final legislative action by a local government which results in ․ [t]he grant or denial of an application for a special use of property[.]” Appellate review by the superior court of such decisions “shall be brought by way of a petition for such review as provided for in Title 5.” OCGA § 36-66-5.1(a)(2) (2024).

Title 5, the Superior and State Court Appellate Practice Act, OCGA § 5-3-1 et seq., provides “a single, modern, and uniform procedure called a ‘petition for review’ for appealing a decision made by a lower judicatory to a superior or state court[.]” OCGA § 5-3-2(b)(1). With certain exceptions not relevant here, it gives superior and state courts “appellate jurisdiction ․ over a final judgment of a lower judicatory.” OCGA § 5-3-4(a). That appellate jurisdiction is invoked “by filing a petition for review with the clerk of the reviewing court.” OCGA § 5-3-6(a).

3. Analysis

Alpha Land sought superior court review of the city council's denial of the conditional use permit application by way of a petition for review under Title 5. This was appropriate, because as stated above, the version of the Zoning Procedures Law in effect at the time specifically included “[t]he grant or denial of an application for a special use of property,” OCGA § 36-66-3(4)(E), in the category of decisions that “shall be brought by way of a petition for such review as provided for in Title 5.” OCGA § 36-66-5.1(a)(2) (2024). Under OCGA §§ 5-3-4(a) and 36-66-5.1(a)(2) (2024), the superior court had jurisdiction over Alpha Land's petition for review.

The question is whether, in the course of ruling on Alpha Land's claim that the city council erred in denying the conditional use permit application, the superior court was prohibited from considering arguments that invoked the constitutionality of the applicable zoning ordinance, the Unified Development Code. The superior court held that he lacked jurisdiction to consider those arguments. We disagree.

It is true, as stated above, that the Zoning Procedures Law permits constitutional challenges to zoning ordinances to be made by direct action to superior court. OCGA § 36-66-5.1(a)(1). Such direct actions are “pursuant to [the superior court's] original jurisdiction over declaratory judgments ․ and equity jurisdiction․” Id.

But in the analogous context of administrative actions, our Supreme Court has held that if the rights of the parties have been adjudicated and are undergoing judicial review after adjudication, a superior court may consider constitutional challenges to an administrative agency's rules as part of that appellate review. State Health Planning Agency v. Coastal Empire Rehabilitation Hosp, 261 Ga. 832, 412 S.E.2d 532 (1992); George v. Dept. of Nat. Resources, 250 Ga. 491, 492, 299 S.E.2d 556 (1983). In such instances, declaratory relief by way of direct action to the superior court is no longer appropriate. State Health Planning Agency, 261 Ga. at 832-833, 412 S.E.2d 532. Consequently, a superior court's refusal to hear the constitutional challenges as part of its review of the administrative decision would have the effect of foreclosing consideration of those challenges.

We see no reason why our Supreme Court's rationale in the cases involving administrative actions would not also apply to zoning decisions. Permitting a reviewing court to consider constitutional challenges in such instances is consistent with our General Assembly's direction that we construe the Superior and State Court Appellate Practice Act “broadly so as to render decisions based on the merits of each case and avoid dismissal of any case or refusal to consider any points raised therein unless such dismissal or refusal is expressly required by statute[.]” OCGA § 5-3-2(c)(1) (emphasis supplied). Neither the Zoning Procedures Law nor the Superior and State Court Appellate Practice Act requires a superior court to dismiss or refuse to consider a constitutional challenge to a zoning ordinance raised in an appeal from a decision that relied on the challenged ordinance. Moreover, the Superior and State Court Appellate Practice Act accommodates consideration of such constitutional questions as part of a petition for review, because it permits the reviewing court to conduct a de novo review where required by law. See OCGA § 5-3-5(b).

For these reasons, we hold that the superior court erred by refusing to consider Alpha Land's constitutional challenges to the city's Unified Development Code in his review of the denial of the conditional use permit application. So we reverse that part of the superior court's order that dismisses the enumerations of error raising those challenges. Because the superior court must consider the challenges in the first instance, see Tussahaw Reserves v. Butts County, 323 Ga. 84, 88-89(2), 922 S.E.2d 363 (2025), we remand for the superior court to do so.

Given this disposition, we do not reach Alpha Land's challenge to the sufficiency of the evidence supporting the denial of the permit application. The superior court's ruling implicated criteria set forth in the Unified Development Code that may not be applicable, depending on the resolution of Alpha Land's constitutional challenges. So we vacate that part of the superior court's order affirming the denial of the permit application and direct the superior court to reconsider that issue in light of his resolution of the constitutional challenges.

Judgment reversed in part and vacated in part, and case remanded with direction.

FOOTNOTES

1.   Alpha Land asserts that the Unified Development Code required a conditional use permit for any potential use of the property. We do not address that assertion in this appeal.

2.   The city council also denied applications for an amendment to a master zoning plan and for a parking variance. Those denials, and the superior court's rulings in connection with them, are not at issue in this appeal.

3.   OCGA § 36-66-5.1(a)(2) was later amended, effective July 1, 2025, to remove zoning decisions under OCGA § 36-66-3(4)(E) from this mechanism of review.

McFadden, Presiding Judge.

Hodges and Pipkin, JJ., concur.