Hewes v. Cooler

169 Ga. App. 762 (1984)

315 S.E.2d 276

HEWES et al. v. COOLER.

67018.

Court of Appeals of Georgia.

Decided February 7, 1984.

James B. Blackburn, Stanley E. Harris, Jr., for appellants.

David E. Zeigler, for appellee.

SOGNIER, Judge.

Thomas Cooler appealed an order of the Savannah Zoning Board of Appeals to the Superior Court of Chatham County, alleging that the Board's decision misconstrued the applicable zoning ordinance, that the Board acted ultra vires, and that he was denied equal protection and due process of law. The Board and other individual defendants moved for summary judgment. This motion was denied by the superior court and we granted the application for interlocutory appeal.

The superior court, in denying appellees' motion for summary judgment, gave as its reason that "there is a genuine issue as to one or more material facts." No such issues of fact exist. It is not the position of the superior court here, as appellate court, to substitute its judgment as to the findings of fact by the Board. It is duty lies, first, in determining whether there is any evidence to support the findings of the Board, Ga. Real Estate Comm. v. Burnette, 243 Ga. 516 (2) (255 SE2d 38) (1979), and second, in conducting a meaningful review of the proceedings to determine whether the action of the Board was or was not so capricious or arbitrary as to constitute an abuse of the Board's discretion. Hames v. Kusmiersky, 166 Ga. App. 730, 732 (2) (305 SE2d 377) (1983). Both of these inquiries are matters of legal determination; therefore, we remand this case to the superior court for consideration of the matters of law before it.

The summary judgment motion was correctly overruled by the superior court because the Civil Practice Act has no application to judicial review of administrative agency decisions under § 19 of the Administrative Procedure Act (OCGA § 50-13 et seq. (Code Ann. § 3A-101 et seq.)). Motions for summary judgment are therefore "functionless" and are not appropriate in the superior court when that court is sitting as an appellate court under authority of the APA. Walker v. Harden, 129 Ga. App. 782 (201 SE2d 483) (1973).

Judgment affirmed and case remanded for action not inconsistent herewith. Quillian, P. J., and Pope, J., concur.