Tussahaw Reserves, LLC v. Butts Cnty., 2024 WL 4576933 (Ga.App., 2024)
Tussahaw contends that SASS Group does not require a dismissal under Paragraph V because the Board and the individual commissioners were not “named” as “defendants,” but as “respondents-in-certiorari” with a limited role under the confines of former OCGA § 5-4-1 et seq.7 This issue — whether or not the term “defendant” as used in Paragraph V includes “respondents-in-certiorari” under the former statutory scheme for certiorari to the superior courts — necessarily involves constitutional construction.
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It is true that Tussahaw did not name the Board and the individual commissioners as defendants in the style of the case. However, it is clear from the express language of the complaint that Tussahaw sought declaratory and injunctive relief directly against the Board. For example, it requested the trial court to “order Defendants to rezone their property to a constitutional zoning classification” and “grant such other relief as is reasonable and just against the Board and Butts County in favor of Petitioners.”8 (Emphasis supplied.) Further, in its prayer for relief, Tussahaw requested the trial court to “declare that the Board’s actions in denying the Rezoning Application were arbitrary, capricious, unreasonable,” and to “declare that the actions of the Board in denying the Rezoning Application has resulted in a denial of substantive and procedural due process of law[.]” (Emphasis supplied.) Thus, regardless of the style of the case, Tussahaw stated independent, substantive claims against the Board.
