FIRST DIVISION
BARNES, P. J.,
MARKLE and HODGES, 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.
https://www.gaappeals.gov/rules
September 24, 2026
In the Court of Appeals of Georgia
A26A1183. EARNSHAW v. ATLANTA URBAN DESIGN
COMMISSION et al.
HODGES, Judge.
Rebecca Earnshaw challenges the superior court’s order dismissing her petition
for review from an Atlanta Urban Design Commission (“the UDC”) after concluding
that she lacked standing. In related enumerations of error, she argues that because the
issue of standing was not raised before the administrative body, the UDC and the City
of Atlanta are precluded from challenging standing in the superior court. We agree,
reverse the trial court’s order, and remand for further proceedings.
“When reviewing a trial court’s ruling on a motion to dismiss for lack of
jurisdiction that has been decided on the basis of written submissions, we are in an
equal position with the trial court to determine the facts and therefore examine the facts under a non-deferential standard.” Henderson v. James, 350 Ga. App. 361 (829
SE2d 429) (2019) (punctuation omitted); accord Cobb County v. Murphy, 379 Ga. App.
336 (928 SE2d 254) (2026). And when an appeal from the dismissal of a petition for
review presents a question of law, “we review the trial court’s decision de novo.”
Dessalines v. Dep’t of Human Servs., 356 Ga. App. 826, 827 (849 SE2d 673) (2020).
With that standard in mind, we turn to the facts of the case, which are
undisputed. A property owner in Grant Park began construction of a carport on her
property and was issued a stop-work order because the carport did not have the
required seven-foot yard setback. Earnshaw’s property backs up to the subject
property on a shared private alley. The property owner applied to the UDC for a
variance to construct her carport. Earnshaw appeared at the application hearing before
the UDC, and complained that the structure, which she called tall, large, and
“[un]attractive,” had already been built without obtaining the variance, where other
property owners had gone through the permitting process and were required to give
up yard space to abide by the setback rule. Despite Earnshaw’s protestations, the
UDC approved the variance. At no point does the record suggest that the UDC, the
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City of Atlanta, or any other person challenged Earnshaw’s standing to oppose the
variance.
Earnshaw timely petitioned the superior court to review the judgment of the
UDC. The City of Atlanta, on behalf of itself and the UDC, filed a motion to dismiss
Earnshaw’s petition for review, asserting that she lacked standing because she did not
suffer “special damages” and failed to join the property owner as an indispensable
party. In response, Earnshaw contended that any challenge to standing was waived
because it was not raised before the UDC. Earnshaw also filed a motion to supplement
the administrative record with the transcript of the hearing before the UDC, and she
attached the transcript to her motion.
The superior court granted the motion to dismiss the petition for review,
concluding that, based on the administrative record before it, Earnshaw did not have
standing because she failed to show that she suffered special damages as a result of the
UDC’s decision. Notably, the superior court did not address Earnshaw’s argument
that the UDC had waived its challenge to standing. The superior court’s order was
silent as to Earnshaw’s motion to supplement the record, although the transcript was
included in the record transmitted to this Court. Because the superior court dismissed
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the petition on standing grounds, it did not consider whether Earnshaw had failed to
join an indispensable party. This Court granted Earnshaw’s discretionary application
to review the superior court’s judgment,
Earnshaw now appeals the superior court’s judgment, asserting that it erred in
the following ways: (1) by dismissing her petition on standing grounds, which she
contends is not authorized under the State and Superior Court Appellate Practice Act,
OCGA § 5-3-1 et seq; (2) by dismissing her petition for lack of standing when the issue
had been waived below; and (3) by applying the “special damage” standing standard
rather than the aggrieved person standard. We need only consider her second
enumeration because we agree that the issue of standing has been waived.
When a party seeks superior court review of the decision of an administrative
body, that is “acting in a quasi-judicial capacity, the trial court is bound by the facts
and evidence presented to the administrative body[.]” York v. Athens College of
Ministry, 348 Ga. App. 58, 59–60 (821 SE2d 120) (2018). In such a case, no new
evidence will be permitted at the petition for review stage. RCG Props., LLC v. City
of Atlanta Bd. of Zoning Adjustment, 260 Ga. App. 355, 362(1) (579 SE2d 782) (2003).
This Court has repeatedly found that in such cases “the issue of ‘standing’ [cannot]
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be raised for the first time in the superior court, because the superior court is not the
proper forum in which to present evidence and conduct discovery, since the facts of
the action are determined at the [UDC] hearing.” Id. (punctuation omitted). See also
York, 348 Ga. App. at 59–60; Druid Hills Civic Ass’n v. Buckler, 328 Ga. App. 485,
492–93(3) (760 SE2d 194) (2014), disapproved of in part on other grounds by Hourin
v. State, 301 Ga. 835, 837(1) n. 2 (804 SE2d 388) (2017). If the petition for review
challenges an administrative decision which was legislative in nature, however, the
parties may introduce new evidence, and the question of standing can be raised in the
superior court for its determination. York, 348 Ga. App. at 60; Druid Hills Civic Ass’n,
328 Ga. App. at 492–93(3).
Therefore, the only question before this Court is whether the UDC decision
was quasi-judicial or legislative in nature. “The test for determining whether official
action is quasi-judicial or legislative focuses on the function performed by the
decisionmaker.” York, 348 Ga. App. at 60 (punctuation omitted).
Generally, a quasi-judicial decision operates to address a specific dispute
or determine rights and obligations of a particular party or parties. The
resulting decision seeks to establish those rights and obligations or
otherwise resolve the dispute, and is immediate in application. A
legislative decision, on the other hand, is usually marked by a general
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inquiry, often not limited to the facts and circumstances of specific
people or properties, which results in a rule of law or course of policy
that will apply in the future.
Id. (punctuation omitted), citing Diversified Holdings v. City of Suwanee, 302 Ga. 597,
601–02(II) (807 SE2d 876) (2017). Moreover, the General Assembly has set forth by
statute when the actions of a local government exercising zoning powers are quasijudicial or legislative in nature. See OCGA § 36-66-3. According to the statute
effective at the time of the UDC decision, a quasi-judicial act includes “hearing and
rendering decisions on applications for variances, special administrative permits,
special exceptions, conditional use permits, or other similar permits not enumerated
herein as a zoning decision[.]” OCGA § 36-66-3(1.1) (2023). Legislative actions, by
contrast, only include the grant or denial of a variance when such decision is
concurrent and in conjunction with a decision to adopt or deny an amendment to the
zoning ordinance to rezone property or an application for a special use of property.
OCGA § 36-66-3(4)(F) (2023).
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With these standards in mind, it is clear that the UDC’s decision was quasijudicial in nature.1 Our review of the record shows that the UDC was only addressing
a specific dispute regarding a variance, applying facts to a particular dispute. This was
a dispute regarding a variance, and there is nothing in the record showing that the
dispute was connected to a rezoning decision or a conclusion regarding a special use
of property. Therefore, this was a quasi-judicial decision where standing can be
waived. See OCGA § 36-66-3(1.2); Diversified Holdings, LLP, 302 Ga. at 601–02(II);
RCG Props., 260 Ga. App. at 362(1). Notably, the superior court also concluded that
the UDC’s decision was quasi-judicial in nature, but simply failed to consider waiver.
While RCG and its progeny hold that, in cases such as this, standing is waived
when not challenged below, 260 Ga. App. at 362(1); York, 348 Ga. App. at 59–60;
Druid Hills, 328 Ga. App. at 492–93(3), the City of Atlanta asks this Court to find
such cases inapplicable because a city ordinance purportedly interjects a standing
requirement. Assuming, arguendo, that there is such an ordinance,2 this Court has
1
We note that the City of Atlanta does not appear to challenge this conclusion in its appellee’s brief.
2
No ordinances were made part of the record. We take this opportunity to again remind those practicing before us that appellate courts cannot consider municipal ordinances which are not properly made part of the record. Whitfield v. City of Atlanta,
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previously considered and rejected this argument. Druid Hills, 328 Ga. App. at 493(3)
n. 9 (“Although the developers assert that the absence of any standing requirement
from the code under consideration in RCG distinguishes that case from the one before
us, this was an alternative rather than primary ground of our holding. The issue before
us is not the content of the standing law, but whether that issue may be waived by
failure to raise it before an administrative body.”) (citation omitted). Therefore,
because the issue of standing was not raised before the UDC, it is waived.
Because the issue of standing was waived, the superior court erred in
considering it and by dismissing Earnshaw’s petition on that ground. Consequently,
we reverse the dismissal of the petition on that ground and remand this case for
further proceedings, including the consideration of the unaddressed ground for
dismissal asserted in the city’s motion to dismiss.
Judgment reversed and case remanded. Barnes, P. J., and Markle, J., concur.
296 Ga. 641, 641–42 (769 SE2d 76) (2015); Ridley v. Dolgencorp, 353 Ga. App. 561, 563 n. 1 (839 SE2d 26) (2020).
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