Exclusivity Requirement of Georgia Constitution Article I, Section II, Paragraph V: Declaratory Relief Actions Must Be Brought Exclusively Against the County

Introduction

In Tussahaw Reserves, LLC et al. v. Butts County, the Court of Appeals of Georgia (Second Division) confronted a procedural but fundamental question of sovereign immunity: whether a single suit seeking both declaratory/injunctive relief and certiorari review could name, alongside the county, the county’s zoning board and individual commissioners. Petitioners Tussahaw Reserves, LLC and Keys Ferry Crossing, LLC (“Tussahaw”) had sought to rezone agricultural and residential property for quarry use. After the Butts County Planning Commission and Board of Commissioners denied the applications, Tussahaw appealed by writ of certiorari and simultaneously sought a declaratory judgment and injunction under the waiver of sovereign immunity in Article I, Section II, Paragraph V of the Georgia Constitution.

The superior court dismissed the case, concluding that Paragraph V’s exclusivity provision bars any suit naming parties other than the county itself. On discretionary appeal, this ruling was affirmed, reinforcing the rule that suits for declaratory relief under Paragraph V must name only the county as defendant.

Summary of the Judgment

The trial court had granted Butts County’s motion to dismiss, holding that although Tussahaw styled the Board and its individual members as “respondents-in-certiorari,” the complaint nonetheless sought substantive declaratory and injunctive relief against them. Relying on the Georgia Supreme Court’s decision in State v. SASS Group, which interpreted Paragraph V’s exclusivity provision to require dismissal of any suit under that paragraph that names non-authorized parties, the Court of Appeals here affirmed.

The panel emphasized that sovereign immunity is waived only if the suit is brought “exclusively against such county … and in the name of such county.” Because Tussahaw’s complaint sought relief not only against Butts County but also against the Board and commissioners, the entire suit was barred and properly dismissed.

Analysis

Precedents Cited

• Young v. Johnson, 359 Ga. App. 769 (2021) – Established that sovereign-immunity dismissals are reviewed de novo.
• Diversified Holdings, LLP v. City of Suwanee, 302 Ga. 597 (2017) – Raised the question whether rezoning denials are quasi-judicial (certiorari) or legislative (declaratory) acts.
• Pickens County v. Talking Rock Bluffs, 367 Ga. App. 46 (2023) – Discussed the legislative amendments clarifying zoning-appeal procedures.
• Schroeder Holdings, LLC v. Gwinnett County, 366 Ga. App. 353 (2023) – Held that appeals of rezoning denials may be pursued via declaratory judgment under OCGA §36-66-3 rather than by certiorari only.
• State v. SASS Group, 315 Ga. 893 (2023) – Construed Paragraph V’s exclusivity provision, mandating dismissal of suits naming non-county defendants.
• Lovell v. Raffensperger, 318 Ga. 48 (2024) – Applied Paragraph V to dismiss claims against state election boards and secretaries when counties were omitted.
• First Center v. Cobb County, 318 Ga. 271 (2024) – Reaffirmed that Paragraph V suits must be brought exclusively against the county, dismissing suits naming individual county officials.

Legal Reasoning

The court’s reasoning turned on the plain language of Article I, Section II, Paragraph V(b)(2): “Actions filed pursuant to this Paragraph naming as a defendant any individual, officer, or entity other than as expressly authorized … shall be dismissed.” Once Tussahaw sought substantive declaratory and injunctive relief “against the Board and Butts County,” it violated that exclusivity rule.

Although Tussahaw styled the Board and commissioners as respondents in its certiorari petition, the substance of its prayer for relief made clear it was pursuing independent claims against those bodies. Under Georgia precedent, substance prevails over form, so naming non-county actors triggers a mandatory dismissal. The sovereign-immunity waiver cannot be “split”: one cannot litigate a certiorari appeal and a Paragraph V claim in the same action unless only the county stands as defendant.

Impact

This decision reinforces a strict procedural hurdle for litigants challenging county actions under Paragraph V. Future plaintiffs must choose whether to pursue a declaratory-injunctive action (Paragraph V) or a certiorari appeal—but if they opt for Paragraph V, they cannot name any local boards or officials as defendants. Any inadvertent or tactical inclusion of non-county parties will doom the entire complaint.

For county governments, the ruling offers certainty: so long as only the county is sued, they may defend declaratory-injunctive challenges to zoning decisions. For practitioners, it underscores the importance of careful pleading to avoid sovereign-immunity pitfalls.

Complex Concepts Simplified

• Sovereign Immunity: A constitutional doctrine that protects the State and its subdivisions from suit unless immunity is waived.
• Paragraph V Waiver: Article I, Section II, Paragraph V of Georgia’s Constitution waives immunity for declaratory/injunctive relief against counties—but only if the county alone is sued.
• Exclusivity Provision: The requirement that any suit under Paragraph V “shall be brought exclusively against such county … and in the name of such county.” Naming other parties mandates dismissal.
• Declaratory Judgment: A remedy whereby a court declares the rights or legal relations of parties without ordering specific action.
• Writ of Certiorari: A judicial review mechanism for quasi-judicial decisions (such as zoning board rulings) under former OCGA § 5-4-1 et seq.
• Substance Over Form: Georgia courts look to the real nature of claims—if you ask for relief against a board or official, you’ve sued them, regardless of how you label them.

Conclusion

Tussahaw Reserves v. Butts County cements the rule that declaratory and injunctive suits under Georgia’s Constitution must name only the county to invoke the Paragraph V waiver. Any substantive relief sought against boards, commissioners, or other entities in the same action compels dismissal. This decision brings clarity and finality to the interplay between certiorari appeals and Paragraph V actions, guiding future litigants to frame their challenges with precision and respect for sovereign-immunity boundaries.