Stuart Teague, a Member of Teague & Zeliff, LLC

The number of opinions issued by the Georgia Appellate Courts regarding land use issues seems to have declined.  However, the court has issued at least one opinion this year through the date of this post on February 25, 2020.  This case is Hitch v. Vasarhelyi,  2010 WL 522658 (Ga.App.,2010).   However, there was no notable rules of law addressed in the case regarding property law;  the court merely reaffirmed a line of opinions in which it has held that issuance of a permit to one land owner does not cause an inverse condemnation to another.  Specifically, the court held a property owner cannot allege that the government's Georgia Department of Natural Resources caused a taking or inverse condemnation of another owner's property simply by issuing a dock permit on government property to someone else. 

In Hitch,  the plaintiffs owned property on a coastal water course.  They alleged the DNR had issued a dock permit to a neighbor that affected their own property in such a way as to prevent them from placing a dock on their own property.  

Among other things, the Court held that the plaintiff property owners were not entitled to a hearing before a state Administrative Law Judge because the DNR's decisions regarding what the DNR does with state property does not entitle other, private land owners to a review of that decision.  The Court also held that even if the issuance of the permit to place a private dock on public property would have a negative economic effect on their property and would prohibit them from placing a dock on their own property, this act and damage, standing alone, would not establish an inverse condemnation claim under the Georgia Constitution of 1983.    The court reiterated the rule that the issuance of building permits by the government cannot stand as the basis for a takings claim under the Georgia equivalent to the Fifth Amendment in Georgia Constitution Article 1, Section 3, Paragraph 1.   

The Court held: 

The Hitches' takings claims turn on their allegation that their property has been diminished in value by DNR's issuance to their neighbor of a revocable license to build a private dock. However, even assuming a legally cognizable economic impact, the Hitches' complaint has failed to show how the mere issuance of a license to construct a private dock on State land resulted in a taking of their property by the State for public use. The State is neither constructing nor maintaining the private dock. As the Georgia Supreme Court held in Stanfield v. Glynn County,^FN19 a county was not liable for inverse condemnation or taking merely by virtue of its approval “of the construction of [a] waste transfer facility and its issuance of building permits” to a private owner and operator.^FN20 We find that logic to be persuasive in this case because the revocable license was granted to a Vasarhelyi, a private party, solely for the lawful construction and use of a private dock by Vasarhelyi.^FN21 Therefore, the trial court did not err in dismissing these claims.

Hitch v. Vasarhelyi,  2010 WL 522658, p.  3.

This decision has some relevance to storm water management cases against counties and municipalities.   In cases where a land owner tries to hold a local government responsible for flooding, the government often argues the same rule addressed in Hitch, supra, claiming that the mere issuance of a building permit adding impervious surfaces to property does not standing alone constitute grounds for an inverse condemnation of a property that floods as a result.  However, it is important to note that rarely does this rule actually apply in most stormwater management cases since most of the time in these types of cases the government will own some part of the drainage system causing the flooding.