City of Rincon v. Ernest Cmtys., LLC

356 Ga.App. 84

846 S.E.2d 250

CITY OF RINCON et al.

v.ERNEST COMMUNITIES, LLC

A20A0765

Court of Appeals of Georgia.

June 30, 2020

J. Raymond Dickey; Oliver Maner, Patrick T. O'Connor, Benjamin M. Perkins, for appellants.

McCorkle & Johnson, Phillip R. McCorkle, David H. Johnson, for appellee.

Markle, Judge.

This appeal arises from the denial of Ernest Communities, LLC's ("Ernest") application for a land development permit to build townhomes on its property in Rincon, Georgia. Ernest sued the city of Rincon, the city council, the mayor, the council members in their individual and official capacities, and the city planner (collectively "the City"), stating claims for declaratory judgment that the applicable city ordinance was void; permanent injunction; mandamus relief; and damages, pursuant to 42 USC § 1983.¹ The trial court denied summary judgment to the City, granted partial summary judgment to Ernest, declared the ordinance void, and permanently enjoined the regulation of Ernest's property under the ordinance. The City now appeals. For the reasons discussed more fully below, we affirm in part, reverse in part, vacate in part, and remand the case with direction.

Summary judgment is properly granted when the pleadings and evidence show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party.

(Citations and punctuation omitted.) City of Atlanta v. Hotels.com, L.P. , 332 Ga. App. 888, 890 (2), 775 S.E.2d 276 (2015).

So viewed, the record reflects that, in April 2017, Ernest filed an application with Rincon's Building and Zoning Department for a land development permit and approval of the site plans for the construction of 78 townhomes on its property. As can be culled from the record, it appears that the master plan for the project was initially approved, but that revisions had been made to it, which had not been submitted to the City for approval prior to Ernest's application for the land development permit and approval of the site plans. Ernest's application was set to be heard at a council meeting, at which time counsel for Ernest and for the City presented their arguments. Ernest challenged the authority of the council to require approval of the master plan. The council voted unanimously to deny Ernest's application because the master plan had not been approved.

Ernest then filed an action in the superior court, asserting claims for declaratory judgment and mandamus to declare the applicable ordinance void, permanent injunction, damages pursuant to 42 USC § 1983, and an additional mandamus claim to compel the issuance of building permits. Ernest moved for partial summary judgment on its declaratory judgment and injunction claims, contending that the City lacked authority to regulate its property because the City's Growth Management Code ("GMC"), which included its zoning ordinances, was void for (1) violating the Zoning Procedures Law ("ZPL"), OCGA § 36-66-1 et seq., and (2) improper adoption. In a series of motions, the City moved for summary judgment as to all of Ernest's claims, contending it was entitled to sovereign immunity and that Ernest was required to file a writ of certiorari to appeal the City's decision.

Thereafter, the trial court entered an order, granting partial summary judgment to Ernest, and denying the City's motions for summary judgment. The trial court found that the GMC had been improperly adopted and was thus void, and it permanently enjoined the City from restricting the use of Ernest's property.² With regard to the City's grounds for its motions, the trial court found, as is relevant to this appeal, that the proceedings before the city council were not quasi-judicial, and therefore Ernest was not limited to filing a petition for writ of certiorari to challenge the council's denial of its application; and the claims for declaratory judgment, mandamus, and injunctive relief were not barred by sovereign immunity. This appeal followed.

1. The City contends that the trial court erred by denying its motion for summary judgment because Ernest's claims for declaratory judgment and injunction are barred by the doctrine of sovereign immunity. We conclude that the claim for declaratory judgment is not barred by sovereign immunity, pursuant to OCGA § 9-4-7 (b), but that there is no waiver of sovereign immunity as to the claim for injunctive relief.

Pursuant to OCGA § 36-33-1 (a), municipal corporations, such as the City, are immune from liability for damages. But the statute is silent as to immunity from suits seeking nonmonetary claims, such as declaratory judgment and injunctions. "[O]nly the legislature has the authority to enact a law that specifically waives a municipality's sovereign immunity." (Emphasis supplied.) CSX Transp., Inc. v. City of Garden City , 277 Ga. 248, 249 (1), 588 S.E.2d 688 (2003) ; Ga. Const. of 1983, Art. IX, Sec. II, Par. IX. Thus, we may not infer from the omission of these types of claims in OCGA § 36-33-1 (a) that the City's immunity is waived, as Ernest would have us do.

However, the City's immunity may be abrogated by another statute. Cf. Williams v. DeKalb County , 308 Ga. 265, 279 (4) (d), 840 S.E.2d 423, 435 (4) (d) (2020) ; City of Union Point v. Greene County, 303 Ga. 449, 454 (1) (a), 812 S.E.2d 278 (2018) (waiver of sovereign immunity implicit in the language of Service Delivery Strategy Act because to read the statute otherwise would render it meaningless); SJN Properties, LLC v. Fulton County Bd. of Assessors , 296 Ga. 793, 799 (2) (b) (ii), 770 S.E.2d 832 (2015) (sovereign immunity is no bar to mandamus claims pursuant to OCGA § 9-6-20 et seq. ). We therefore turn to the language of the Declaratory Judgment Act, OCGA § 9-4-1 et seq., to determine whether a waiver of a municipality's sovereign immunity is contained therein.

Significantly, OCGA § 9-4-7 (b) provides: "In any proceeding involving the validity of a municipal ordinance or franchise, the municipality shall be made a party and shall be entitled to be heard as a party." Thus, it can be inferred from this language that a municipality is subject to a declaratory judgment action where, as here, the validity of its ordinance is challenged. "Because the General Assembly is presumed to intend something by passage of an act, we must construe its provisions so as not to render it meaningless." (Citation and punctuation omitted.) City of Union Point, 303 Ga. at 454 (1) (a), 812 S.E.2d 278. Accordingly, we conclude that the City's sovereign immunity was waived with regard to the declaratory judgment claim, and we affirm the portion of the trial court's order finding such a waiver.

Not so with regard to the claim for permanent injunction, however. It is well settled in Georgia that sovereign immunity bars claims for injunctive relief. Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc. , 294 Ga. 593, 597 (2), 602 (2), 755 S.E.2d 184 (2014). Ernest points to no law that would establish a waiver of the City's sovereign immunity with respect to its claim for injunctive relief. See Atlanta Metro Leasing, Inc. v. City of Atlanta , 353 Ga. App. 785, 791 (1), 839 S.E.2d 278 (2020) (party seeking the benefit of a waiver of sovereign immunity bears the burden of establishing the waiver). Nor have we found any. As such, we find that Ernest's claim for permanent injunction was barred by sovereign immunity. We therefore reverse the trial court's grant of the permanent injunction against the City.

2. Having found that Ernest's claims for declaratory judgment regarding the validity of the GMC may proceed, we turn to the City's argument that the trial court erred by granting summary judgment to Ernest and declaring the GMC void because it was not properly adopted. We agree.

As reflected in the record, the GMC was adopted in 1989, and amended in 2010. The 2010 revisions to the GMC were addressed at a public hearing on August 23, 2010, and the first reading of the ordinance was approved by the council at that hearing. The second reading was approved by the council on September 13, 2010. The adopting resolution, to which the GMC is attached, indicates that the ordinance was passed and approved by the mayor and city council on September 13, 2010. The adopting resolution also indicates the dates of the first and second readings and is signed by the mayor and the city clerk. Notably, every page of the 2010 version of the GMC indicates the date of the first reading.

In its order, the trial court disregarded these measures and, instead, presumed that the City had two options for properly adopting the GMC: either by placing it on the minutes or incorporating it by reference therein. However, this presumption is unsupported by law. To the contrary, it is well settled in Georgia that the process of adopting an ordinance is controlled by the city's charter or by statute. Toomey v. Norwood Realty Co., Inc., 211 Ga. 814, 816-817 (1), 89 S.E.2d 265 (1955) ("The method of procedure prescribed in the passage of an ordinance or resolution by county or municipal authorities, to whom authority to legislate has been delegated by statute or charter, must be strictly followed. Unless the ordinance or resolution is adopted in compliance with the conditions and directions given, it will have no force. The method of procedure as provided in the statute or charter is generally mandatory and exclusive of all other methods."); City Council of Augusta v. Irvin , 109 Ga. App. 598, 599 (1), 137 S.E.2d 82 (1964) ; see also Friedman v. Goodman , 219 Ga. 152, 159 (3) (b), 132 S.E.2d 60 (1963) ("Neither the charter of the City of Augusta nor any other statute makes the spreading of ordinances on the minutes of the City Council of Augusta a requisite to their validity."); Mid-Georgia Natural...