Posted by Hecht Walker, P.C.
Posted on November 6, 2018

By Greg Hecht and Jon Jordan for Hecht Walker PC

Land Use/Zoning Litigators, like our firm, are having to implement new tactics in zoning litigation due to stalled legislation to override recent decisions by the Georgia Supreme Court extending State and local sovereign immunity to actions for injunctive relief and declaratory judgments. A primary rational for the doctrine of sovereign immunity is to protect taxpayer dollars.  However, the recent Georgia Supreme Court decisions held that sovereign immunity goes further to also prohibit non-monetary lawsuits in Georgia courts against State and county governments, or their department or agencies by citizens simply seeking judicial review of unconstitutional governmental action. The result is that property owners have extraordinarily limited review rights and property utilization rights.

In addition, it leaves individual local government officials such as County Commissioners, Mayors and City Councilpersons as the required subject of lawsuits in their individual capacities. In Ga. Dept. of Natural Resources v. Center for Sustainable Coast, 294 Ga. 593 (2014), the Georgia Supreme Court held that sovereign immunity barred lawsuits against the State, and its departments and agencies, including County governments, seeking injunctive relief against unconstitutional actions.  Two years later, the Georgia Supreme Court held that sovereign immunity even prohibited Georgia courts from deciding the constitutionality of State laws through a declaratory judgment action filed by an aggrieved citizen.  Olvera v. Univ. System of Ga. Bd. of Regents, 298 Ga. 425 (2016).  The harsh expanse of governmental sovereign immunity has left citizens wishing to protect their constitutional rights against State and local government action with virtually no other meaningful option but to file suit against lawmakers and public officials in their individual capacities.  For example, rather than file suit against a County entity to declare a county ordinance unconstitutional, such suit must now be brought against each commissioner in his/her individual capacity.

In both Sustainable Coast and Olvera, the Georgia Supreme Court explained that,

“Our decision today does not mean that citizens aggrieved by the unlawful conduct of public officers are without recourse.  It means only that they must seek relief against such officers in their individual capacities.” Olvera, 298, Ga. 425, 427 (2016).

Movement in the General Assembly to remedy this effect by drafting legislation to waive sovereign immunity for suits seeking only prospective non-monetary relief (i.e. declaratory judgments, injunctions) stalled in the 2017 session.  Such a waiver would permit an aggrieved citizen to seek judicial review of State and local governmental actions by seeking injunctions or declaratory relief against the governmental body itself or government officials in their official as opposed to individual capacities.  The most recent bill (HB 791) however was amended to protect only State governmental officials, leaving county officials exposed to continued civil lawsuits in their individual capacities, and even this bill failed to make it to a floor vote.

The Association of County Commissioners of Georgia and the Georgia Municipal Association need to work with the Georgia Legislature as well as builders, developers and commercial property owners to solve this problem.  Otherwise, property owners, developers, and builders seeking declaratory or injunctive relief from local land use and zoning ordinances and decisions will have no choice but to sue local government officials individually as a part of their litigation.  The present state of the law requires such tactics, which are unfortunate and could be solved with legislation allowing for meaningful judicial review of State and local government decisions and ordinances by waiving sovereign immunity for suits seeking non-monetary prospective relief.

The ability of courts to issue declaratory and/or injunctive relief against State and local government actions is particularly essential to protecting against unreasonable land use and zoning decisions.   For example, we had a potential client who wanted to build a senior living center which was desperately needed, and the County Commission admitted it was desperately needed, and otherwise consistent with the surrounding land uses.  The Conditional Use Permit required for operating the senior living center was denied simply because the district Commissioner wanted the center built in another Commissioner’s district and not in his own backyard.  Meaningful judicial review is also important to protect against overreaching land use and zoning ordinances which are becoming more and more restrictive and confiscatory, taking away owners’ property rights and stifling development in the community as a whole.  We have had many clients engage our services in need of gaining relief from overreaching overlay zoning ordinances imposing development standards that prevented otherwise permitted uses by making building and development on the properties too expensive and unfeasible.  Previously, Georgia courts could consider the constitutionality of abusive land use and zoning decisions and ordinances through Declaratory Judgment actions against the County or local entity itself.  Now, as a result of the recent case law interpretations of Georgia Sovereign Immunity protection, such declaratory judgment actions must be brought against local officials in their individual capacities.

Property owners, local officials and State legislators need to work together to resolve these problems to protect individual property owners’ rights without turning constitutional review of zoning decisions into much more personal individualized lawsuits.  The Georgia Municipal Association (“GMA”) and the Association of County Commissioners of Georgia (“ACCG”) could also play a critical role in promoting and accomplishing a positive and piece of legislation protecting both land owners and local officials alike.  Until then, our firm will have no choice but to seek relief for our clients from unconstitutional land use and zoning actions through lawsuits against the public officials individually instead of against the entity they serve.  Should you have a legal matter that relates to land use, zoning, variances, permitting or takings, we would be glad to look at these matters for you and examine your potential options.

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