Alpharetta, Milton and Forsyth County support Gwinnett County in zoning case

By SHELBY ISRAEL shelby@appenmedia.com

METRO ATLANTA, Ga. — The Cities of Milton and Alpharetta and Forsyth County have joined hands in support of a Gwinnett County appeal to the Supreme Court of Georgia.

Ken Jarrard, who serves as city attorney for both Milton and Alpharetta and county attorney for Forsyth County, submitted an amicus curiae, or friend of the court, brief that supports Gwinnett County’s appeal of lower court decisions.

The Forsyth County Board of Commissioners unanimously approved the county’s support of the amicus brief Feb. 2, followed by the City Councils of Milton and Alpharetta Feb. 6.

The outcome of the appeal could affect each government’s decisions to regulate land, as well as the appeals process for denied zoning applicants.

Under sovereign immunity, local zoning boards are exempt from damage claims that result from a zoning denial.

However, a recent Court of Appeals decision opens the door for inverse condemnation claims, meaning local governments could be held liable for monetary damages.

The Jan. 24 appeal, Gwinnett County v. Schroeder Holdings LLC et al., seeks to clarify whether the role of local zoning boards is legislative or adjudicatory.

In a draft of the amicus brief submitted by Jarrard, he said precedent cases hold that local zoning boards are adjudicatory.

Gwinnett County’s appeal further addresses the process of appealing a local zoning board’s decision. In the draft brief, Jarrard writes that according to precedent cases, denied applicants are required to submit a formal petition to the courts due to the adjudicatory nature of the boards.

Schroeder Holdings submitted a 100acre rezoning application in May 2019. The company had said the land had no “reasonable economic use as currently zoned.”

After the Gwinnett County Board of Commissioners denied the rezoning application, the company filed suit against the county.

A state trial judge ruled in favor of the county, arguing that by failing to name the Board of Commissioners as a respondent in the suit, Schroeder Holdings and the other filing parties did not follow procedure. The court further ruled that the county had acted in its quasi-judicial capacity in the denial.

Schroeder then appealed the decision. The Court of Appeals ruled Jan. 5 in Schroeder’s favor, stating that zoning boards can act in a legislative capacity, which does not require a certiorari review.

The Court of Appeals’ decision also allows Schroeder to pursue an inverse condemnation claim, which refers to a property owner’s ability to sue a government for taking private property without compensating the owner.

“This is a brief where we’re not a party to the case,” Jarrard said at the Feb. 2 Forsyth County commission meeting. “But the legal issues involved, to specifically include the specter of inverse condemnation damages in a zoning case, is of such importance, I believe, to Forsyth County as well as other local governments that we need to ensure that we educate the court as best as we can to give us some guidance on this issue.”

Gwinnett County Attorney Erik J. Pirozzi said in the county’s Jan. 24 appeal the opportunity for inverse condemnation claims would be disastrous for all counties and municipalities in Georgia and threaten to bankrupt local governments involved in such zoning disputes.

“The consequences would be severe, and result in not only threatening the coffers of every local government,” Pirozzi said in the appeal, "but would also deter them from properly exercising their police powers in zoning cases for fear of being exposed to money damages, resulting in great harm to the health, safety, morals, and general welfare of the public, and there would be many other grave consequences as well.”

Gwinnett’s appeal is still under review by the state Supreme Court.