DIRT Development for Monday, February 23, 2009
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri

Note that there are two reports here on different aspects the same case: 

ZONING AND LAND USE; PROCEDURE; APPEAL; EVIDENCE: Appellants of a zoning decision may introduce new evidence on appeal, as it is a de novo review of a “legislative act.” Stendahl v. Cobb County, 284 Ga. 525, 668 S.E.2d 723 (Ga. Sup. Ct. 2008).

Adjacent landowners appealed approval of rezoning petition to county superior court claiming that the rezoning decision violated zoning ordinance and was unconstitutional. The county filed a motion to dismiss the complaint for failure to state a claim and for failure to join as defendants the owners of the rezoned property. The trial court granted the county's motion on both grounds. The trial court applied the "any evidence" standard: any evidence produced by the adjacent landowners would only conflict with the evidence supporting the rezoning decision and would not be sufficient to warrant overturning same.

On appeal, the Supreme Court of Georgia noted that the denial of an application for rezoning is a "legislative act" subject to a "de novo review" and that the trial court was not limited to examining the evidence presented to the zoning authority at the administrative level. Consequently, the adjacent landowners could introduce new evidence, including expert testimony.

The Supreme Court concluded that the trial court erred when it granted the motion to dismiss for failure to state a claim after applying the "any evidence" standard.

ZONING AND LAND USE; PROCEDURE; APPEAL; PARTIES: Where zoning applicants are named as parties to neighbor’s appeal of a rezoning action, the actual owners of real property are not indispensable parties. Stendahl v. Cobb County, 284 Ga. 525, 668 S.E.2d 723 (Ga. Sup. Ct. 2008).

The adjacent landowners also argued that the trial court erred in granting the motion to dismiss for failure to join indispensable parties. The trial court concluded that the owners were necessary parties because the zoning conditions "ran with the land" and were not personal to the applicants.

The Supreme Court, however, concluded that the trial court erred in dismissing the adjacent landowner's action for failure to join the true owners of the property on the grounds that the true owners were not a necessary party for the adjudication of the zoning appeal. The Supreme Court noted that the true owners did not fit within the definition of "indispensable parties" because the "case could be decided on its merits without prejudicing the rights of the owners since the rezoning applicant is a party and presents a thorough case on behalf of itself and ultimately the owner." Because the trial court applied the wrong standard of review and erred in concluding that the owners were necessary parties, the Supreme Court reversed the trial court's grant of the motion to dismiss.

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