Opinion
A97A1660.
DECIDED MAY 29, 1997. RECONSIDERATION DENIED JUNE 13, 1997 — CERT. APPLIED FOR.
Declaratory judgment. DeKalb Superior Court. Before Judge Hancock.
Judith A. Lomas, for appellant.
Glass, McCullough, Sherrill Harrold, Robert E. Wilson, Bryan A. Downs, for appellees.
Don L. Griffith, the Superintendent of the City Schools of Decatur, Georgia, determined that Alan Greenberg's children did not reside within the City of Decatur ("the City") and that he should be charged tuition for his children to continue in the City's school system. Greenberg appealed to the Decatur Board of Education ("the Board"), which orally upheld the determination. Before a written decision was issued, however, Greenberg commenced a declaratory judgment action in the superior court, seeking to enjoin application of the residency requirement to his children's situation. The superior court dismissed the action for failure to exhaust the available administrative remedies. Greenberg then filed this direct appeal. Held:
Under OCGA § 5-6-35 (a) (1), the discretionary appeal procedures are required to appeal the decision of a superior court reviewing the decision of an administrative agency. Where a declaratory judgment action essentially is an attempted appeal of an administrative decision, then the discretionary appeal procedures are required. Miller v. Georgia Department of Public Safety, 265 Ga. 62, 64-65 ( 453 S.E.2d 725). "[T]he underlying subject matter generally controls over the relief sought in determining the proper procedure to follow to appeal." Rebich v. Miles, 264 Ga. 467, 469 ( 448 S.E.2d 192).
The declaratory judgment action Greenberg filed in the superior court, the case sub judice, challenges the Board's decision to apply its residency requirements to his two children. This action was therefore an attempt at reviewing the Board's administrative decision. It thus follows that the discretionary appeal procedures prescribed in OCGA § 5-6-35 (b) were required to appeal the superior court's decision. See Rebich v. Miles, 264 Ga. 467, supra. Since Greenberg did not employ these procedures in the case sub judice, this direct appeal must be dismissed for lack of jurisdiction.
Appeal dismissed. Beasley and Smith, JJ., concur.