RECENT GOVENRMENT LAW CASES
Buckler v. DeKalb County Bd. Of Commissioners, 299 Ga.App. 465, 683 S.E.2d 22 (July 13, 2009)
Background: Property owners submitted application for authorization to develop their property inconsistent with requirements of historic district, which was denied by the historic district, which was denied by the historic preservation commission. Owners appealed. County board of commissioners affirmed. Owners filed writ of certiorari and complaint for declaratory judgment. Parties filed cross-motions for summary judgment. The Superior Court granted partial summary judgment to owners. Defendants sought discretionary review of decision. The Court of Appeals, 288 Ga.App. 346, 654 S.E. 2d 193, reversed. Thereafter, the Superior Court ruled that designation of historic district was valid, and, based on such ruling, implicitly granted summary judgment to county on declaratory judgment claim. Developers filed appeal with Supreme Court, which transferred appeal.
Holdings: The Court of Appeals held that:
(1) proper standard review of county’s actions in designating historic district was whether county substantially complied with statutory requirements for doing so;
(2) resolution of board of commissioners redesignating historic district was valid, even absent proof that county’s chief executive officer signed resolution; and
(3) evidence supported conclusion that county substantially complied with notice requirements of Historic Preservation Act (HPA) at time it enacted ordinance designating historic district.
Affirmed.
Cox v. City of Sasser, 300 Ga.App. 251, 684 S.E. 2d 385 (September 28, 2009)
Background: City brought action against property owners to enjoin them from violating zoning ordinance that barred mobile homes or manufactured homes on their property, except as a replacement for an existing non-conforming home. The Superior Court awarded summary judgment to city. Property owners appealed.
Holdings: The Court of Appeals held that:
(1) Ordinance did not authorize property owners to replace 660 square foot mobile home with new 1,980 square foot home;
(2) summary judgment affidavit of employee of home seller did not create a triable issue as to whether home was a “modular home” or a “mobile home” or “manufactured home”; and
(3) city was not stopped from enforcing zoning ordinance
Affirmed.
Kaplan v. City of Sandy Springs, 286 Ga. 559, 690 S.E.2d 395 (March 01, 2010)
Background: Landowners brought action against city, county, and school district for damages for nuisance and trespass stemming from flow of water across their land and mandamus to order repair of 36-inch drainage pipe under landowners’ driveway. The Superior Court granted summary judgment in favor of county. Landowners appealed.
Holdings: The Supreme Court held that:
(1) county did not expressly accept dedication of pipe, and
(2) county did not impliedly accept dedication of pipe.
Affirmed.
East Georgia Land and Development Co., LLC v. Baker, 286 Ga. 551, 690 S.E.2d 145 (January 25, 2010)
Background: Proceedings were initiated to establish lost county zoning ordinance. The Superior Court entered decree establishing ordinance. Appeal was taken by landowner affected by the ordinance.
Holdings: The Supreme Court held that:
(1) ordinance was a “public record” subject to establishment pursuant to statute for establishment of lost public records;
(2) parol evidence was admissible to establish ordinance;
(3) evidence was sufficient to establish ordinance;
(4) proceedings to establish ordinance did not violate separation of powers; and
(5) establishment of ordinance was not an unconstitutional taking of landowner’s property rights.
Affirmed.
Camden County v. Lewis, 298 Ga.App. 594, 680 S.E.2d 621 (June 29, 2009)
Background: Property owner who received a stop work order from county after he was issued a building permit for a commercial building on his property brought action seeking a writ of mandamus and other relief, alleging violation of his constitutional due process and equal protection rights, and a violation of §1983. The Superior Court granted in part and denied in part county’s motion for summary judgment. County applied for interlocutory appeal, which was granted, and appealed.
Holdings: The Court of Appeals held that:
(1) owner failed to point to any evidence of an officially adopted and promulgated county policy or custom that caused his alleged injuries;
(2) owner’s alleged detrimental reliance on building permit and other things did not estop county from issuing a stop work order; and
(3) owner was not entitled to an award of attorney fees and expenses of litigation.
Reversed.
Gunz v. Irvin, 300 Ga.App. 426, 685 S.E.2d 392 (October 08, 2009)
Background: County residents brought action against county board and four of its members for violation of the Open Meetings Act. The trial court granted summary judgment in favor of county. Residents appealed.
Holding: The Court of Appeals held that unscheduled gathering of four members of five member county board, county attorney, and county’s zoning administrator to discuss court decision setting aside board’s rezoning decision was not a meeting under Open Meeting Act.
Affirmed.
Braley v. City of Forest Park, 286 Ga. 760, 692 S.E.2d 595 (March 22, 2010)
Background: Retail salvage store operator brought action seeking declaration that city ordinance regulating display of goods and merchandise for sale outside stores was unconstitutional, and that city be temporarily and permanent enjoined from enforcing ordinance. The Superior Court granted summary judgment in favor of city, and operator appealed.
Holdings: The Supreme Court held that:
(1) city ordinance’s definition of “public sidewalk” satisfied due process requirements of fair warning;
(2) city ordinance did not constitute an unlawful taking by regulation;
(3) passage of city ordinance was not prohibited by Zoning Procedures Law;
(4) store operator’s display of merchandise did not qualify as a non-conforming use;
(5) definition of “public sidewalk” in city ordinance did not unconstitutionally conflict with state statute;
(6) evidence was insufficient to support finding that area in which operator displayed his goods and merchandise had been expressly dedicated to the public; but
(7) area in which operator displayed his merchandise came under purview of city ordinance because it had been devoted to, and was created with the intent of public use of sidewalks and public parking.
Affirmed.
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