Fulton County Superior Court *EFILEDDD Date: 9/20/2016 3:18:29 PM : Cathelene Robinson, Clerk IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA JERE WOOD, Petitioner in Certiorari, v. ROSWELL CITY COUNCIL, Civil Action No. 2016CV280319 Respondent-in-Certiorari, and CITY OF ROSWELL, GEORGIA, Defendant-in-Certiorari. PETITION FOR WRIT OF CERTIORARI COMES NOW, Petitioner Jere Wood (“Wood” or “Petitioner”) and hereby submits this Petition for Writ of Certiorari pursuant to Section 2.6.16 of the Roswell, Georgia City Code, and 0.C.G.A. §§ 5-4-3 and 44-10-28. Petitioner hereby requests that the August 22, 2016 decision of the City of Roswell City Council be vacated for failure to comply with Georgia’s Historic Preservation Statute and the Roswell Code, and the issuance of a Certificate of Appropriateness by the Roswell Historic Preservation Commission be affirmed.INTRODUCTION This Petition arises out of the City of Roswell’s (the “City”) unauthorized and purely political decision to remand the Certificate of Appropriateness issued for Petitioner’s proposed building plans to the Roswell Historic Preservation Commission (“HPC”) for reconsideration. The HPC carefully considered Petitioner’s Design Plan Application (the “Application”) over several sessions, including site visits to the property. The HPC issued two staff reports detailing its review of the design guidelines applicable in Roswell’s Historic District, and confirming that the proposed building will conform to the guidelines. On May 11, 2016, the HPC approved the Application and issued a Certificate of Appropriateness (“COA”) to Petitioner. The May COA had several conditions, including that Petitioner move the proposed building five feet toward Woodstock Street in order to create a fifteen foot separation between the proposed building and the adjacent building, known as the Perry House. The May COA included a requirement that Petitioner submit plans for two siting options to create this separation, one of which was to be approved by the HPC at their June 8, 2016 meeting. On June 8, 2016, the HPC approved “Option Two,” and a second COA was issued to Petitioner. After issuance of the June COA, a group of community representatives opposed to Petitioner’s building plans appealed the issuance of the June COA tothe Council. No appeal was filed to the May COA. Despite the thorough review of the Application by the HPC, in an effort to appease the appellants and with no factual or legal basis, the Council remanded the June COA to the HPC for farther consideration, with instruction to pay “specific attention” to certain design guidelines of the Roswell Unified Development Code (“UDC”). The design ‘guidelines identified by the Council had already been reviewed and considered by the HPC, as set forth in its reports. ‘The Couneil’s action was an error of law, as the Council only has authority under the Georgia Historic Preservation Statute, 0.C.G.A. § 44-10-28, to “approve, modify and approve, or reject” the HPC’s determination to issue a COA. The Council also erred in remanding the June COA because the remand had the effect of setting aside the May COA, which had not been appealed, and because the Council did not apply the “substantial evidence” standard to the HPC’s factual determinations. The Council’s decision must be vacated. In support of this Petition for Writ of Certiorari, Petitioner shows the Court the following: THE PARTIES, JURISDICTION AND VENUE Ll Petitioner Jere Wood is an individual resident of Roswell, Georgia and the owner of the property at 1173 and 1175 Canton Street, Roswell, Fulton County,Georgia (the “Property”). Wood is an aggrieved party with standing to file this action. Bi Respondent Roswell City Council is the administrative body charged with the power and duty to hear and decide appeals of decisions of the HPC. Roswell, Ga., Code § 2.6.16. The Council is named as the Respondent-in-Certiorari pursuant to the City of Roswell Code and State law. Respondent may be served with a copy of the petition and writ through Roswell City Attorney David Davidson, 38 Hill Street, Suite 110, Roswell, Georgia, 30075. 3, The City of Roswell is the Defendant-in-Certiorati, and is a political subdivision and a municipality of the State of Georgia with the power to sue and be sued. Pursuant to 0.C.G.A. § 5-4-6(b), the City of Roswell may be served a copy of the petition and writ through Roswell City Attorney David Davidson, 38 Hill Street, Suite 110, Roswell, Georgia, 30075. 4. The Council and Roswell are each subject to the jurisdiction of this Court, and venue is proper. 5. This Court has jurisdiction over this Petition for Writ of Certiorari pursuantto. O.C.G.A. §§ 5-4-1, et seg. and Section 2.6.16 of the Roswell City Code. 6. Petitioner has presented to the City Administrator and filed simultaneously herewith the Certificate Certifying Payment of Costs confirming that there are no unpaid costs in the proceeding below. 7. In accordance with O.C.G.A. §§ 5-4-3 and 5-4-5, Petitioner files herewith a Certiorari Bond. 8. A proposed Order Sanctioning Petition For Certiorari and Writ are enclosed herein and simultaneously filed herewith. EACTS: A. The Property 9. The Property is located at the comer of Canton and Woodstock Streets in the Downtown Roswell Historic District, which is an overlay district with specific design guidelines in place for the purpose of preserving the historic character of the district.10. Petitioner seeks to construct a one and a half story, 3,000 square foot, frame house facing Canton Street. The front of the house will be set back to align with the existing houses at 1175 Canton Street and 1169 Canton Street, and the house will be constructed with pine clapboard siding and corrugated metal roofing, which are in line with the UDC design guidelines for the historic district. B. The Application i Petitioner submitted the Application for a COA to the HPC on January 26, 2016. ‘The Application was initially scheduled to be heard at the March 9, 2016 meeting of the HPC. 12. Prior to the March 9 HPC meeting, the staff of the Community Development Department (the “Staff” issued a report recommending approval of the Application with certain conditions. 13. On March 9, 2016, the HPC heard the Application and considered the Staff's recommendations and the UDC guidelines, including guidelines 4.4, 4.7, 4.14, and 4.34(e). The HPC recommended that the original porch of the adjacent Perry House be reconstructed to align with the front porch of Petitioner’s proposedbuilding. At the recommendation of the HPC, Petitioner requested a deferral of the Application until the May 11, 2016 HPC meeting, to allow time to produce plans for the recommended changes, and to reply to an outside architect’s report which the Petitioner had not previously seen. The HPC granted Petitioner’s request for a deferral. 14. On March 28, 2016, Petitioner met with the HPC in a work session to review the Application. At this work session, Petitioner agreed to material specifications and design changes recommended by the HPC. 1s. Following the March 28 work session, Staff issued a revised report, again recommending approval of the Application. Like the March report, the final Staff report analyzed the UDC Design Guidelines for all districts, including building placement and setbacks, outdoor public space, landscaping and streetscape, parking, utilities, topography, building mass and scale, and building placement and setbacks. The report also analyzed design guidelines specific to the Historic District, including connectivity, outdoor public spaces, surface parking, streetscape and landscaping, building mass and scale, fagade character, and architectural character.16. On May 2, 2016 Petitioner submitted a revised Application incorporating the recommendations of Staff and the HPC. 17. | On May 11, 2016, the HPC heard Petitioner’s revised Application. After ' finding that the proposed house was not incongruous with the character of the | Historic District, the HPC unahimously approved a COA for construction of the proposed house as submitted on May 2, 2016 with seven conditions. The seventh condition was: The HPC approved a 15 foot separation between the proposed building and the adjacent Perry House; therefore the applicant shall present two options to the HPC at the June 8, 2016 meeting: 1) the building, as submitted, moved 5 feet toward Woodstock Street, and 2) the rear portion of the building (only) moved 5 feet toward Woodstock Street. The option presetitations shall include new site plans for both options, and revised elevations the front, rear, and Woodstock Street side for option 2. The HPC shall approve one of the two options at the June 8, 2016 meeting. 18. On May 11, 2016 the HPC issued a COA to Petitioner to construct the proposed house (the “May COA”). There was no appeal of the issuance of the May COA within the thirty day appeal period set by the Roswell City Code, § 2.16.6.19. Petitioner then submitted revised elevations and site plans for Option 1 and Option 2 for siting the proposed building, as requested by the HPC. 20. At its June 8, 2016 meeting, the HPC unanimously approved Option 2. A second COA was issued for Option 2 (the “June COA”), with two conditions regarding the rear roof. C. Appeal and Council Consideration ai. On July 1, 2016, a group of Roswell community members appealed the HPC’s issuance of the June COA to Petitioner to the Council. The appellants claimed that their appeal was based on the HPC’s alleged failure to “apply the UDC Design Guidelines to the context of the existing streetscape.” Appellants also claimed that Petitioner had a conflict of interest in presenting his Application to the HPC. 22, Appellants included a number of individuals and a group known as Citizens for Responsible Development in Roswell, Inc. Most of the appellants did not have standing under Roswell’s ordinance or Georgia law to appeal the issuance of theCOA. The Council recognized this lack of standing, and heard the appeal as if it were filed by appellant Judie Raiford only. 23. The Council considered the appeal at its August 22, 2016 meeting. Representatives of the appellants and of the Petitioner spoke as well as a number of community members. 24. ‘The Council improperly concluded it had the authority to “to determine whether to uphold the HPC decision, to overturn it, or to remand it back to the Historic Preservation Commission for further review.” 24. The Council made no finding that the HPC abused its discretion, yet it refused to approve the HPC’s issuance of the June COA to Petitioner. Instead, the Council remanded the application to the HPC for reconsideration of the COA with “specific attention” to UDC design guidelines 4.4, 4.7, 4.14, and 4.34(e). Each of these guidelines was addressed in the Staff report and considered by the HPC when it issued the May COA.STANDARD OF REVIEW 26. In considering this Petition, this Court’s “scope of review shall be limited to all errors of law and determination as to whether the judgment or ruling below was sustained by substantial evidence.” 0.C.G.A. § 5-4-12(b). 21. As to issues of law, the City Council’s decision should be reversed if it “acted beyond the discretionary powers conferred on it, abused its discretion, or acted arbitrarily or capriciously with regard to an individual’s constitutional rights.” Bd. of Zoning Adjustment of Atlanta v. Fulton Fed. Sav. & Loan Ass’n., 177 Ga. App. 219, 221 (1985); See also, Jackson v. Spalding Cnty., 265 Ga. 792, 794 (1995). Generally, a misstatement or misapplication of the relevant law constitutes an abuse of discretion. See Blue v. Hemmans, 327 Ga. App. 353, 357 (2014). | 28. Legal questions regarding standing are reviewed de novo. See Harden v. Banks Caty,, 294 Ga. App. 327, 328 (2008) (reviewing superior court’s decision on standing). ll29. On issues of fact, this Court must determine “whether the record supports the initial decision of the local governing body or administrative agency.” City of Atlanta Gov't v. Smith, 228 Ga. App. 864, 865 (1997) (holding that “substantial evidence” standard is the same as “any evidence” standard). ENUMERATION OF ERRORS Enumeration One: The Council Failed To Follow The Procedure Mandated 44-10-28(j) and Roswell Code § 2. 30. Petitioner hereby incorporates the preceding paragraphs as if restated. 31. The Council’s review of the HPC’s decision to issue a COA was limited by the Georgia Historic Preservation Statute, O.C.G.A. § 44-10-20, ef seq. The statute gives limited authority to the Council to “approve, modify and approve, or reject the determination made by the [HPC] if the [Council] finds that the commission abused its disoretion in reaching its decision.” O.C.G.A. § 44-10-28()). 32. The Council committed legal error and abused its discretion by remanding, the Application to the HPC.33. The Council did not make a determination that the HPC abused its discretion in issuing the COA. Accordingly, the Council only had authority to approve, or modify and approve, the HPC’s determination. 34, The Council also did not determine whether the HPC’s decision to issue a COA was supported by “substantial evidence,” as it was required to do in considering an appeal under Roswell Ordinance Section 2.6.16. Because there was no determination that the COA was not supported by substantial evidence, the COA should have been approved by the Council without modification. 35. ‘The Council acted arbitrarily and capriciously when it remanded the Application rather than approving the issuance of the COA. Enumeration Two: The Council Su: d An Untimely Appeal 36. Roswell’s ordinances make clear, without exception, that “any person....aggrieved by any decision of a board or commission...may within thirty (30) days of the decision take an appeal to the Roswell City Council.” Roswell, Ga., Code § 2.16.6 (emphasis added).19 The appeal considered by the Council was filed on July 1, 2016. The appeal was untimely under Roswell City Code § 2.16.6, as permission to construct the proposed house was granted in the May COA, which was not timely appealed. 38. The June COA was issued only to approve Option 2 for siting the house. Because their appeal was filed regarding the June COA, Appellants were limited to appealing the HPC’s decision to accept Option 2 rather than Option 1. 39, The City committed legal error, abused its discretion, and acted arbitrarily and capriciously by considering an untimely appeal of the HPC’s determinations in the May COA, rather than limiting the appeal to the scope of the June COA. Enumeration Three: The Council Sustained An Appeal From Parties Who Lacked Standing 40. Petitioner hereby incorporates the preceding paragraphs as if restated. 41. Roswell’s ordinances mirror Georgia law in that persons appealing a 14decision of the HPC must show “that his or her property will suffer special damage as a result of the decision complained of rather than merely some damage that is common to all property owners and citizens similarly situated.” Roswell, Ga. Code, § 2.16.6. 42. The appellants, including Ms. Raiford, failed to present any competent evidence that their property would suffer special damage as a result of the HPC’s decision. 43. By allowing the appeal to go forward even though appellants did not prove standing, the Council committed legal eiror and abused its discretion by misapplying Roswell’s ordinance that requires each appellant to show special damages. PETITIONER’S CLAIM FOR ATTORNEYS’ FEES “44. Petitioner hereby incorporates the preceding paragraphs as if restated. 45. The Council’s conduct has demonstrated a knowing and intentional attempt to violate and ignore Georgia law and the City’s own ordinances in a concerted effort to deny Petitioner’s rights to the use the Property. 1546. This bad faith manifested itself in the decision to remand the Application, in violation of Georgia law, rather than approve the COA that was issued by the HPC after careful consideration of all appropriate design guidelines. 41. ‘The City’s and Council’s conduct has been in bad faith and caused Petitioner unnecessary trouble and expense. Petitioner is therefore entitled to expenses of litigation. WHEREFORE, Petitioner prays for the following relief: a) That summons and process immediately be issued to the Respondent-in- Certiorari and the Defendant; b) That a Writ of Certiorari be issued and directed to the Respondent in- Certiorati directing the Respondent to certify and send a complete record of the proceedings in HPC 201600291 to the Superior Court of Fulton County; ©) That this Court reverse the conclusion of the Council and affirm the COA granted on June 8, 2016 by the HIPC for the intended use of the Property; <) That this Court schedule and hear oral arguments and set an immediate and expedited briefing schedule; ) That this Court award Petitioner’s reasonable attomeys’ fees and costs; and f) That this Court award Petitioner such other and further relief as justice mayrequire and that this Court may deem appropriate. This 20th day of September, 2016. beak Richard L. Robbin{ Georgia Bar No. Rachel F. Gage Georgia Bar No. 547982 ROBBINS ROSS ALLOY BELINFANTE LITTLEFIELD LLC 999 Peachtree Street, N.E. Suite 1120 Atlanta, Georgia 30309 Telephone: 678-701-9381 Facsimile: 404-856-3250 18030 Attorneys for Petitioner