NOTICE REQUIRED…OR NOT, 2017 – The Year of Technicalities
Winning on technicalities is winning on technicalities. But, nooone really went to law school specifically to become the guy/gal known for sneaking out the back door with his/her victories (did they?).
Many times, these technical victories truly serve the public well. Other times, they simply perpetuate a historical maze of traps for the unwary, traps which serve little to no modern purpose, but are out there nonetheless – and they are out there to be used.
Two appellate decisions from this Spring and Summer involve the always technical issue of notice. One, in which a county claimed that it not be required to provide more notice than it did, the other, a city’s claim that a plaintiff’s failure to serve ante litem notice was fatal to her claim. First one first.
HOECHSTETTER v. PICKENS COUNTY – Zoning Notice
Case No. A17A0565, April 05, 2017
First discussed this past January, this Spring the issue of how many times we have to give heightened notice of public meetings in the zoning process made its way to the Court of Appeals. The question involved how many times a public entity must give that extra notice (signage; hearing no sooner than 15 days, but not later than 45 days after the signage/notice) required by the Zoning Procedures Law (“ZPL”).
Pickens County complied with that requirement just once – for the hearing when the Planning Commission took evidence, and made its recommendation to the Board of Commissioners. At a later regularly noticed (not the heightened notice the ZPL requires) meeting of the Board, a vote was taken to deny the conditional use application. Plaintiff, however, thought the County should have put up the signs, etc., the way it did the first time The trial court dismissed the case saying that Pickens’ method was just fine. The Court of Appeals agreed.
In holding that only one hearing is required, here, the one at the Planning Commission stage, the Court noted that the ZPL only requires one hearing, and unless another hearing is held, no further ZPL-compliant notice need be given. The Georgia Supreme Court has now accepted the case on further appeal, and will hold oral argument this coming January.
Please note – at this point in time there may be a difference if your city council does anything other than just consider and vote on the application/rezoning (after the matter has gone through the lower administrative process (the hearing)), it may turn out different. Especially if your council takes on additional evidence when it convenes. Stay tuned.
WEST v. CITY OF ALBANY – Ante Litem Notice in Whistleblower Cases
300 Ga. 743, (March 6, 2107)
Turning a lot of historical law on its head, the Georgia Supreme Court went quite narrow this year in ruling that Searless West did not have to file ante litem notice in her whistleblower claim against the City of Albany. West had sued under our not-quite-so-new-anymore whistleblower statute, and did so without first serving ante litem notice. Filed in federal court, and that court’s not finding any binding precedent on the issue, the court sent the issue over to the Georgia Supreme Court to deal with. The Supremes unanimously held notice was not required for whistleblower claims.
The reason? Well, our ante litem notice requires a plaintiff to put a city on notice of a claim for money damages, and include an explanation as to “the negligence which caused the injury.” Now, in the law there are significant differences between negligent conduct as opposed to intentional conduct, and the High Court was quick to point out that the applicable statue only involves a description of the negligent conduct. If it required a description of intentional conduct, it would say so. Not that there is any practical difference with respect to the actual purpose of the statute.
While there can be no argument that the statute’s plain language says what it says, there are dozens of cases out there in which our court system has required such notice, sub silento, or, without saying so. Consider this, City Attorneys, ante litem notice issues are jurisdictional in nature. Jurisdiction is a threshold issue. How did all those cases over time sneak through the appellate system without our courts first having considered this threshold jurisdictional issue. Also interesting is that the Court did not really consider this type argument. Case in point, in its Opinion, the Court did not overrule any previous cases. This ruling appears as if it will stand up a long, long time.
WINNING IS WINNING
On September 24, the Falcons beat the Detroit Lions on the last play of the game, when the Lions’ Golden Tate’s apparent touchdown was reversed because his knee came down just before the ball crossed the goal line. When the touchdown was first called, there were still 8 seconds left on the clock. But, because Detroit was out of time outs, by rule, those 8 seconds evaporated into thin air, giving the Falcons their third victory of the yet young year.
Winning on technicalities is winning on technicalities.