In its effort to build five residences on ten legal nonconforming lots of record1 in unincorporated DeKalb County, appellee Cooper Homes had its application for interior side yard setback variances denied by the DeKalb County Zoning Board of Appeals ZBA and its application for land disturbance permits denied by the county’s planning and development department. Cooper Homes sought judicial review of the ZBA decision by filing a petition for a writ of certiorari to the superior court.2 In the cert petition, Cooper Homes also sought a writ of mandamus for issuance of the building permits denied by the county’s planning and development department, and a declaratory judgment as to the construction and application of Section 27-938 of the county’s zoning ordinance. The trial court granted Cooper Homes a petition for writ of mandamus and ordered appellant Patrick Ejike, the director of the DeKalb County Planning and Development Department, to accept and process the applications for building permits previously submitted by Cooper Homes and denied by the planning and development department, and to approve the applications if they met the requirements of two specified chapters of the county ordinances. In its order granting mandamus, the trial court recognized that Cooper Homes had the right to appeal the planning and development department’s denial of the applications for building permits to the ZBA pursuant to Section 27-912 a of the county’s zoning ordinance,3 but ruled that Cooper Homes was not required to exercise that appellate right prior to seeking mandamus in superior court because “such an appeal would have been futile as it would have ultimately resulted in a decision on the same issue by the same body which had denied the application for variance to the interior side yard setback requirement, the ZBA.” We granted the application for discretionary review filed by DeKalb County because we were particularly concerned with the trial court’s determination that it was unnecessary for Cooper Homes to exhaust its administrative remedies before applying for a writ of mandamus, and whether it was appropriate to issue a writ of mandamus.
1. As a general rule, a writ of mandamus is not available when there is an adequate remedy at law available to the petitioner seeking mandamus Speedway Grading Corp. v. Barrow County Bd. Comm’rs. , 258 Ga. 693, 695 373 SE2d 205 1988, and the appropriate inquiry is whether this legal remedy “existed at the time mandamus relief was sought .” DeKalb County v. Wal-Mart Stores , 278 Ga. 501, 502 604 SE2d 162 2004, quoting North Fulton Med. Ctr. v. Roach , 265 Ga. 125 2 453 SE2d 463 1995. However, the available legal remedy need not be pursued prior to seeking mandamus if to do so would be a “futile act.” Such a “useless act” occurs when the administrative remedy available at the time mandamus relief is sought is “to seek a review that ultimately would result in a decision on the same issue by the same body.” WMM Properties v. Cobb County , 255 Ga. 436 3 339 SE2d 252 1986. See e.g., Hall v. Nelson , 282 Ga. 441 3 651 SE2d 72 2007 administrative remedy in employment dispute is an appeal to board which had issued formal decision in the same employment dispute; City of Albany v. Oxford Solid Waste Landfill , 267 Ga. 283 1 476 SE2d 729 1996 administrative remedy is an appeal to city planning commission and decision being appealed is one made by city engineer acting pursuant to instructions given by city manager who was following a directive from city commission; Powell v. City of Snellville , 266 Ga. 315, 317-18 467 SE2d 540 1996 administrative remedy of property owner contesting re-zoning is an appeal to mayor and city council, the same body which had filed re-zoning application concerning the property and had re-zoned the property to the classification property owner contested, over property owner’s objection; Glynn County Bd. of Educ. v. Lane , 261 Ga. 544 1 407 SE2d 754 1991 administrative remedy is an appeal to a board and the issue on appeal is that board’s conduct.
