                              SECOND DIVISION
                               BARNES, P. J.,
                          RICKMAN and BROWN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                   August 28, 2018




In the Court of Appeals of Georgia
 A16A1794. SWEET CITY LANDFILL, LLC et al. v. ELBERT
      COUNTY et al.

      RICKMAN, Judge.

      Appellants Sweet City Landfill, LLC, J. B. Wright, and Jack Stovall, Jr.

(collectively, “Sweet City”) appeal the trial court’s November 2015 order granting the

motion to dismiss filed by Appellees Elbert County, The Board of Commissioners of

Elbert County, and the County Manager of Elbert County (collectively, “Elbert

County”). Relying on existing precedent of the Supreme Court of Georgia, we

previously dismissed this appeal based on Sweet City’s failure to follow the

discretionary appeal process. The Supreme Court subsequently granted Sweet City’s

petition for certiorari, vacated our decision, and remanded the case to this Court for

reconsideration in light of two recent decisions, Schumacher v. City of Roswell, 301
Ga. 635 (803 SE2d 66) (2017), and Shelley v. Town of Tyrone, 302 Ga. 297 (806

SE2d 535) (2017). For reasons that follow, we affirm.

      Sweet City initially filed a “Verified Complaint for Declaratory Judgment, and

Injunctive Relief” against Elbert County, seeking declarations that its waste disposal

facility was not required to obtain a special use permit, that Elbert County’s Solid

Waste Disposal Ordinance was unconstitutional on various grounds, and that Sweet

City had a vested right to develop and operate a waste disposal facility

notwithstanding the Elbert County zoning ordinance and map. Sweet City also sought

a mandatory injunction to require Elbert County to issue a special use permit, if

necessary, to allow Sweet City to develop and operate the waste disposal facility.

Elbert County moved to dismiss the complaint, and Sweet City moved for summary

judgment. The trial court subsequently issued an order in September 2014:

      granting summary judgment to Sweet City on the grounds that the
      County’s Solid Waste Ordinance violated the dormant Commerce
      Clause of the United States Constitution, and that the July 9, 2012 Board
      action deprived Sweet City of equal protection under both the United
      States and Georgia Constitutions; declaring that Sweet City has a vested
      right to have the County issue “a letter of zoning and development
      compliance and consistency with the County’s solid Waste Management
      Plan”; declaring that Sweet City has a vested right to develop the
      property as a landfill free of any zoning and land use restrictions; and,

                                          2
      granting a temporary injunction against the County from enacting or
      enforcing ordinances so as to interfere with Sweet City’s development.
      The superior court also denied the County’s motion to dismiss, rejecting
      the County’s argument that Sweet City had to exhaust its administrative
      remedies prior to filing suit.


Elbert County v. Sweet City Landfill, 297 Ga. 429, 431 (774 SE2d 658) (2015).

      After granting Elbert County’s application for discretionary appeal, the

Supreme Court of Georgia held that the trial court did not err in ruling that the Board

of Commissioners of Elbert County (the “Board”) took no action on Sweet City’s

application for a special use permit, but did err in rejecting Elbert County’s argument

that the trial court must dismiss the matter due to Sweet City’s failure to exhaust its

administrative remedies. Id. at 432-433 (1). The Supreme Court further held that

based on Sweet City’s failure to obtain a final decision from the Board, the trial court

erred in reaching the merits of Sweet City’s claim of a vested right in the issuance of

a letter of compliance and in addressing Sweet City’s equal protection claim. Id. at

433-434 (1). With respect to Sweet City’s facial challenge to the constitutionality of

Elbert County’s solid waste ordinance, the Supreme Court held that the claim was not

subject to an exhaustion requirement, but that the trial court had erred in failing to

apply the balancing test set forth in Pike v. Bruce Church, Inc., 397 U. S. 137 (90 SCt

                                           3
844, 25 LEd2d 174) (1970), and remanded the case for it to do so. Elbert County, 297

Ga. at 434-436 (2).

        After the case was remanded to the trial court, Elbert County repealed and

replaced the challenged ordinance and filed a motion to dismiss, contending that the

amended ordinance rendered the remaining claim, the facial challenge to the

ordinance, moot. Following a hearing, the trial court granted Elbert County’s motion.

Sweet City appeals this ruling, contending that the trial court erred in dismissing the

declaratory judgment action based on mootness, failing to analyze Sweet City’s

vested rights, and failing to follow the direction of the Georgia Supreme Court on

remand.

        1. We must first reconsider our determination that an application for

discretionary appeal was required in this case. Even with recent authority from the

Georgia Supreme Court, determining whether a direct appeal or a discretionary appeal

is appropriate in a case involving zoning issues requires us to a navigate a tortuous

path.

        Pursuant to OCGA § 5-6-35 (a) (1), appeals from decisions of the superior

courts reviewing decisions of state and local administrative agencies must be made

by filing an application for discretionary appeal. In 1989, the Georgia Supreme Court

                                          4
held that “all zoning cases appealed either to the Court of Appeals or the Supreme

Court of Georgia must hereafter come by application.” Trend Dev. Corp. v. Douglas

County, 259 Ga. 425, 426 (1) (383 SE2d 123) (1989). This rule also applied to

appeals from a trial court’s ruling on a challenge to the constitutionality of a zoning

ordinance on its face. See O. S. Advertising Co. of Ga. v. Rubin, 267 Ga. 723, 725 (2)

(482 SE2d 295) (1997). In Schumacher v. City of Roswell, 301 Ga. 635, 636-638 (1)

(803 SE2d 66) (2017) , the Georgia Supreme Court determined that a stand-alone

lawsuit challenging an ordinance as facially invalid is not a “zoning case” under

Trend and Rubin and therefore does not require a discretionary application. The

Schumacher Court did not overrule Trend or Rubin, instead concluding that “a careful

reading of [Trend and Rubin] shows that they can be reconciled with OCGA § 5-6-35

(a) (1) because a ‘zoning case’ is a case involving a ‘decision’ by an ‘administrative

agenc[y]’ dealing with the zoning or allowed use of a particular parcel of land.” Id.

at 638 (2).

       The issue in Schumacher was whether a city council’s adoption of a new

zoning code was a “decision” of a “local administrative agency.” Id. at 637 (1). A

“decision,” as the term is used in OCGA § 5-6-35 (a) (1), refers to an administrative

determination of an adjudicative, as opposed to an executive or legislative, nature.

                                          5
State v. Intl. Keystone Knights of the Ku Klux Klan, 299 Ga. 392, 403-404 (4) (a) (788

SE2d 455) (2016). The distinction between an adjudicative determination and a

legislative determination has been defined as follows:

      Administrative determinations of a legislative nature are prospective in
      application, general in application, and often marked by a general
      factual inquiry that is not specific to the unique character, activities or
      circumstances of any particular person. Determinations of an
      adjudicative nature, on the other hand, are immediate in application,
      specific in application, and commonly involve an assessment of facts
      about the parties and their activities, businesses, and properties.


(Citations and punctuation omitted.) Id. at 401 (4) (a). In Schumacher, because the

lawsuit only challenged the city council’s adoption of a development code and sought

no individualized zoning-related relief, and the adoption of the new development

code was prospective in nature, the majority determined that the adoption of the new

code was an exercise of legislative power and therefore was not an adjudicative

“decision” under the statute. Schumacher, 301 Ga. at 637 (1).

      The Court in Schumacher further determined that the city council was not

acting as an “administrative agency,” noting that “[t]he enactment of ordinances is at




                                          6
the core of the City Council’s legislative functions.” Id. at 638 (1).1 Because there

was not a “decision” by an “administrative agenc[y]” as required by OCGA § 5-6-35

(a) (1), the Court held that an application for discretionary appeal was not required,

id., and that Trend and Rubin did not apply. Id. at 638-639 (2).

      Another twist in the process of determining whether a case is a “zoning case”

is that we must look not only to the issue on appeal, but to the issues raised and

decided in the case below. See Schumacher, 301 Ga. at 639 (2). Although the issue

on appeal in Rubin was whether a sign ordinance was unconstitutional, the Court in

Schumacher noted that “Rubin still involved an appeal from an administrative

agency’s denial of an individual variance request” because appeal was taken from the

denial of a landowner’s application for a sign ordinance variance. Id. Thus, Rubin was

a “zoning case” because it initially involved an individualized determination by an

“administrative agency” as to the zoning or permitted use of a particular parcel of

land. Id.




      1
        The Court in Schumacher did not consider whether a city council, an elected
body, could be properly labeled an “administrative agency” under any circumstances,
but instead focused on the function being performed by the council to determine if it
was acting as an “administrative agency.”

                                          7
      Applying these principles to this case, we conclude that this is not a “zoning

case” that requires an application for discretionary appeal. When the Georgia

Supreme Court remanded this case to the superior court, the only claim remaining

was Sweet City’s facial challenge to the constitutionality of Elbert County’s solid

waste ordinance under the dormant Commerce Clause of the United States

Constitution. As in Schumacher, the adoption of the ordinance was an exercise of

legislative power and therefore not an adjudicative “decision” of an “administrative

agenc[y]” under OCGA § 5-6-35 (a) (1). See Schumacher, 301 Ga. at 637 (1). Unlike

Schumacher, however, this was not a stand-alone lawsuit challenging an ordinance

as facially invalid because Sweet City initially sought a special use permit and later

a determination that its waste disposal facility was not required to obtain the special

use permit mandated by the ordinance, arguably requiring an individualized

determination about a particular property. But the Board took no action on Sweet

City’s application for a special use permit and therefore made no individualized

determination about a particular property. Because no adjudicative “decision” was

made here, this is not a “zoning case” under Trend or Rubin. See Schumacher, 301

Ga. at 635. Accordingly, Sweet City’s direct appeal is properly before this Court.



                                          8
        2. Sweet City contends that the trial court erred by dismissing its action as

moot.

        On September 14, 2015, the Board repealed and replaced its solid waste

ordinance, which required a special use permit prior to locating any new private

landfill, waste disposal area or waste storage area in Elbert County. The 2015

ordinance eliminated from the prior ordinance the provisions challenged by Sweet

City, replacing what had been “requirements” for obtaining a special use permit with

factors that should be considered when reviewing an application for a special use

permit.

        Because the prior solid waste ordinance is no longer effective, “judicial

resolution of [Sweet City]’s challenge to it would amount to the determination of an

abstract question that would give [it] no relief.” (Citations and punctuation omitted.)

Shelley v. Town of Tyrone, 302 Ga. 297, 307 (3) (806 SE2d 535) (2017). “[A]nd the

appellate court is not required to retain a moot case and decide it because a party

might possibly derive some future benefit from a favorable adjudication on an

abstract question.” (Citation and punctuation omitted.) Scarbrough Group v. Worley,

290 Ga. 234, 236 (719 SE2d 430) (2011).



                                          9
      Relying on Coffey v. Fayette County, 289 Ga. App. 153 (656 SE2d 262)

(2008), Sweet City contends that the mootness doctrine does not bar claims for

damages under 42 USC § 1983, and that it is entitled to damages incurred when the

prior ordinance was enforced against it. In Coffee, this Court held that an amendment

to a sign ordinance did not moot a claim for damages based on the enforcement of the

prior sign ordinance, portions of which had been found unconstitutional. Id. at 155

(1) (b). Here, however, the prior solid waste ordinance was never enforced against

Sweet City and therefore its damages claim will not save its constitutional claim from

mootness. See Elbert Co., 297 Ga. at 433 (1) (the Board took no action on Sweet

City’s application for a special use permit under the prior ordinance); see also DA

Mtg. v. City of Miami Beach, 486 F.3d 1254, 1260 (I) (A) (11th Cir. 2007).

      Relying on WMW, Inc. v. American Honda Motor Co., 291 Ga. 683, 685 (2)

(733 SE2d 269) (2012), Sweet City contends that the trial court erred in dismissing

its claims because Elbert County’s voluntary cessation of challenged conduct does

not render the case moot. In WMW, the Georgia Supreme Court, relying on federal

authority, adopted the voluntary cessation doctrine, which provides that the

“voluntary cessation of challenged conduct does not ordinarily render a case moot

because a dismissal for mootness would permit a resumption of the challenged

                                         10
conduct as soon as the case is dismissed.” (Citation and punctuation omitted.) Id. at

685 (2). The Court in WMW also recognized that “[a] narrow exception to the

voluntary cessation doctrine exists where the subsequent events make it absolutely

clear that the allegedly wrongful behavior could not reasonably be expected to recur,”

and that the “heavy burden of persuading the court that the challenged conduct cannot

reasonably be expected to start up again lies with the party asserting mootness.”

(Citations and punctuation omitted.) Id. at 685 (2).

      While it is true that the burden of proving mootness generally falls heavily on

the party asserting it, “governmental entities and officials have been given

considerably more leeway than private parties in the presumption that they are

unlikely to resume illegal activities.” Coral Springs Street Systems v. City of Sunrise,

371 F3d 1320, 1328-1329 (II) (A) (11th Cir. 2004). “[W]hen the defendant is not a

private citizen but a government actor, there is a rebuttable presumption that the

objectionable behavior will not recur.” (Emphasis in original.) Troiano v. Supervisor

of Elections in Palm Beach County, 382 F3d 1276, 1283 (II) (11th Cir. 2004). “When

government laws or policies have been challenged, the [United States] Supreme Court

has held almost uniformly that cessation of the challenged behavior moots the suit.”

Id. at 1283 (II). “The [Supreme] Court has rejected an assertion of mootness in this

                                          11
kind of challenge only when there is a substantial likelihood that the offending policy

will be reinstated if the suit is terminated.” (Emphasis in original.) Id. at 1283-1284

(II).

        “Whether the repeal of a law will lead to a finding that the challenge to the law

is moot depends most significantly on whether the court is sufficiently convinced that

the repealed law will not be brought back.” (Citation and punctuation omitted;

emphasis in original.) Nat. Advertising Co. v. City of Miami, 402 F3d 1329, 1334

(11th Cir. 2005). Here, the trial court determined that “there is no evidence that Elbert

County intends to re-enact the prior version of the ordinance,” recognizing that

counsel for Elbert County had expressly stated that Elbert County would not reenact

the prior ordinance. Sweet City has not pointed to any evidence to the contrary, and

in the absence of evidence indicating that Elbert County intends to return to the prior

ordinance, Sweet City’s legal challenge to it is moot. See id.2 The fact that Elbert

County repealed the prior ordinance during litigation does not alter this result as

“[t]he existence of litigation does not, in and of itself, preclude a municipality or

county from rectifying the deficiency highlighted by the litigation.” (Citations and


        2
         To the extent that Sweet City also seeks to challenge the 2015 ordinance, that
issue is not properly before us. See Shelley, 302 Ga. at 307-308 (3).

                                           12
punctuation omitted.) Shelley, 302 Ga. at 307 (3). Nor does this case fall within the

narrow exception to the doctrine of mootness when the issue is capable of repetition

yet evades review. See Hopkins v. Hamby Corp., 273 Ga. 19 (538 SE2d 37) (2000).

      3. Sweet City contends that the trial court erred in failing to analyze Sweet

City’s claim of vested rights, arguing that those rights preclude Elbert County from

applying the 2015 ordinance to its application for a special use permit.

      This issue is not properly before us given the Georgia Supreme Court’s

determination in the earlier appeal that the trial court erred in reaching the merits of

Sweet City’s claim to have a vested right in the issuance of a letter of compliance

because

      Sweet City’s failure to obtain a final decision from the Board and afford
      it the opportunity to address its claim of a vested right to a [special use
      permit] made it impossible for the superior court to determine whether
      Sweet City’s vested rights have been violated, since the appropriate
      County authority never denied it any such permit.


(Citation and punctuation omitted.) Elbert County, 297 Ga. at 433-434 (1).

      4. Sweet City contends that the trial court erred by failing to follow the

direction of the Georgia Supreme Court on remand to apply the test set forth in Pike,

397 U. S. 137, to determine whether the prior ordinance violates the Commerce

                                          13
Clause before considering any other issue. Mootness, however, is an issue of

jurisdiction and must be determined before a court addresses the merits of a claim.

See Shelley, 302 Ga. at 308 (3). Thus, the trial court properly considered the issue of

mootness first. See id.

      Judgment affirmed. Barnes, P. J., and Brown, J., concur.




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