Whether a Detention Pond Causes Flooding is Generally for a Jury to Decide

In a recent opinion in a case considered by the Georgia Court of Appeals, the court reversed an order of a Georgia trial court that dismissed a claim.   In Newton's Crest Homeowners' Ass'n v. Camp,  2010 WL 3719894, 4 (Ga.App., Sept. 24, 2010), the court held that testimony from property owners that flooding never started until a developer had performed work on its development created an issue for the jury to decide.   Testimony from the developer's engineer that the pond was designed to reduce post development storm water flows was not enough to support the developer's motion for summary judgment.    The court held that opinion testimony creates a jury issue in the face of testimony of first hand observations from witnesses who observe when and how storm water damages occurred. 

Restrictive Covenants and Property Uses

Most people in subdivisions are aware that covenants exist that restrict the sorts of uses that they make of their property.  What some people are not aware of is that the law in Georgia strictly interprets covenants in favor of the free use of property. While many covenant issues do not involve ambiguous language in a Declaration of Covenants, disputes often arise in the interpretation of covenants on property.  Accordingly, homeowners may have grounds to object to application of covenants where the language of the recorded covenant is ambiguous.

Sandy Springs Maintenance Ordinance Raises Concerns

Recently, the City of Sandy Springs proceeded to adopt the "International" Maintenance Code to force property owners.  While the code is written as a general maintenance code, it was apparently drafted in a broad fashion to enable the City to require home owners to fix deteriorating, public storm water pipes and detention ponds located on property owners' tracts -- at their own expense.  

Home Gardening Around Streams

Homeowners sometimes unintentionally run afoul of stream buffer and other environmental laws when they perform landscaping in their back yards.  While minor landscaping activities are generally exempt from soil and erosion control laws, this exemption may be lost where the landscaping will take place within a stream buffer corridor.  Also, there is no certain definition of what constitutes minor landscaping.

Georgia Courts Will Split Properties Bought by Unmarried Couples

In an opinion issued by the Georgia Supreme Court on November 1, 2010 in O'Connor v. Bielski, Case No. S10A0673 (Nov. 1, 2010), the Court addressed the equitable partition of 8.54 acres of property purchased by a couple living together out of wedlock.   The Court upheld the trial court's determination to equitably split proceeds from the ordered sale of a property that the couple bought together before they went their separate ways.

The opinion followed the application of equitable principles commonly applied in partnership or other cases involving joint ownership or purchase of land.  The basis of the action was a claim to partition the property.

The trial court had appointed a special commissioner to sell and determine the equitable division of the proceeds.    The trial reviewed the findings of the special commissioner in a bench trial without a jury.

Georgia Supreme Court Requires Deed Delivery to Pass Title

In a recent decision of the Georgia Supreme Court issued on November 8, 2010, the Court held that a person who wishes to convey title to a property must physically deliver the deed. Smith v. Lockridge, Case Nos. S10A1007 and S10A1009 (Nov. 8, 2010). This case is relevant to estate planning. If a grandparent or parent makes out a deed to a grandson or granddaughter or other relative, the deed must be delivered before death in order to pass title under the deed. The consequences of not delivering the deed as intended could completely change the persons who take title from the estate since if the deed is not delivered, title will pass under a last will and testament, or if none was executed, through the laws of Georgia. It is not uncommon for a person to make out a deed and hold it to ensure that the recipient reaches a proper age or maturity level, or takes care of the person.

In a well written opinion by Justice Nahmias, the Court laid out the rules for deed delivery in text book fashion:

FAILURE OF CITIES AND COUNTIES TO FOLLOW THE LAW VIOLATES THE STATE AND FEDERAL CONSTITUTIONS AND THE CLEAN WATER ACT

In Georgia, the National Pollutant Discharge Elimination System (“NPDES”)  under the Clean Water Act of 1972 is implemented through state permits issued by the Environmental Protection Division (the “EPD”) of the Georgia Department of Natural Resources (“DNR”).   An NPDES Permit allows a person or entity to discharge pollutants into waters of the state without violating state and federal laws.  

Cities and counties in the North Georgia Metropolitan area are subject to requirements of NPDES Permits for their storm water drains.  In order to discharge storm water from streets and gutters into state waters, cities and counties subject to an NPDES Permit must comply with the terms of the EPD issued permit.

Sandy Springs Efforts at Managing Burgeoning Storm Water Issues

The City of Sandy Springs is currently in the process of adopting a set of ordinances and provisions that could purport to give its officials the power to enter private properties and force homeowners to fix components of the storm water drainage system.  On a related note, the City has been quietly studying the flood plains of different areas of the City and is also in the process of submitting a proposal to FEMA to enlarge the flood plains along creeks and streams in the City.

The proposed property maintenance code language that the City seeks to implement contains language that would try to place the obligation of storm water maintenance for public drainage courses on the property owners where the drainages are located.   Under a literal reading of the ordinances, a City official could issue an arrest citation against a property owner that fails to maintain a public detention pond located on the owner's property.

What Constitutes Selective Enforcement in Violation of Equal Protection?

In a recent decision of Parker v. City of Glennville the Georgia Supreme Court issued an opinion on October 18, 2010 in which the Court examined a grass cutting ordinance to determine if it was unconstitutional under either the Due Process or Equal Protection Clauses of the state constitution, Georgia Constitution of 1983, Articles 1, 1, 1 and 1, 2, 1.   The Court upheld, for a second time in the last six months, a local ordinance that required citizens to cut grass on their property.  

Recent Easement Decision of The Georgia Court of Appeals

The Georgia Court of Appeals recently issued an opinion in an easement case in which an adjacent property owner sought to replace an old sewer line on another tract with a larger line that complied with current City of Atlanta rules, regulations and codes. Parris Properties, LLC v. Nichols,  2010 WL 3386792, 5 (Ga.App.,2010).  The Court examined a variety of issues including the issue of whether the user of the sewer pipe's rights included the right to dig up the old line on the neighbor's tract and replace it.   The Court indicated that the original grant of the easement included the right of maintenance.  It also held that neither the enlargement of the pipe nor the erection of new clean out structures on the neighbor's property violated the scope of the easement.

The case does not seem to significantly change or alter easement law.  It does, however, help clarify whether users of sewer easements have the right to enlarge the pipes to permit changes in rules and upstream conditions over time.  While the case involved a sewerage easement, it also will help provide guidelines for courts and land owners to determine their rights and obligations in maintenance of storm water easements.

Technical Traps for Property Lawyers

One of the problems with dealing with issues involving local land use ordinances such as land development codes and zoning ordinances is that lawyers can commit simple mistakes that provide the courts with ample opportunities to dismiss their claims or defenses.   One rule of evidence that is often overlooked or waived by acts of the parties to litigation is the requirement that parties who rely on a county ordinance in a state court must introduce a certified copy of the ordinance.   The recent nuisance opinion in Thorsen v. Saber published by the Georgia Supreme Court on September 20, 2010 contains another example of a case that the Georgia Supreme Court dismissed due to the failure to introduce a certified copy of the ordinance in the superior court.

Georgia Supreme Court Upholds Grass Cutting Ordinance Against Slavery Challenge

On October 4, 2010 in an opinion in Gasses v. City of Riverdale, the Georgia Supreme Court upheld a city ordinance requiring citizens to cut their grass.

You are not enslaved when you mow your lawn.  The Court held that the ban on slavery does not prohibit cities from requiring their citizens to cut their grass as a civic duty.  The defendant homeowners in the case had attacked the ordinance on a variety of grounds, which included, but were not limited to, an argument that a law requiring one to cut their grass was an constitutional infringement of the prohibition on slavery contained in the Thirteenth Amendment of the United States Constitution.

The homeowners also complained that the ordinance violated their rights to due process of law.  The Court, however, held that there is a rational relationship between the punishment inflicted by ordinances that require citizens to cut their lawns, and the public health, safety and welfare goal of having nicely groomed lawns.   

Missing Ditches, and Sinkholes, on Association Properties

Lore v. Suwanee Creek Homeowners Association

In a recent court opinion, Georgia courts dismissed a claim of a neighbor against her homeowners association related to alleged erosion damages she allegedly suffered from the absence of a ditch that the plaintiff claimed the developer or association should have built on the homeowner association’s common property.  The court dismissed the nuisance and trespass claims for injury to the plaintiff’s property because it held the plaintiff homeowner had failed to present any evidence that the damages on the homeowner’s land were caused by the absence of the ditch on the property under control of the association.   Lore v. Suwanee Creek Homeowners Ass'n, Inc., Case Nos. A10A0012, A10A0013  (Ga.App., June 24, 2010.)

Defenses to Claims of Nuisance Due to Storm Water Flooding

When persons seek to impose liability on others claiming a nuisance arising from flooding or drainage, it is important to first assess whether the up hill owner or others have done anything to change the natural flow of water.  A party seeking to impose liability on an up hill owner for flooding his property must do more than show that the source of the flood waters is from up hill.  All water flows down hill.  

Georgia Implementation of the Clean Water Act

Where a property owner is suffering flooding from streets or other areas where water has not been treated the owner may have a claim under Georgia or federal law.  The Clean Water Act of 1972, 33 U.S.C. Section 1251, et seq., incorporates state standards as limitations on discharge under the Act.     A discussion of the history of water pollution laws may help explain the state implementation and setting of water quality standards.  An opinion of the United States Court of Appeals for the Eleventh Circuit, considering a case generated in a Georgia District Court, explained the context of local laws regarding storm water discharges as follows:

In 1972 Congress passed the Clean Water Act (“CWA”) amendments, 33 U.S.C. §§ 1251-1387, to remedy the federal water pollution control program which had “been inadequate in every vital aspect” since its inception in 1948. EPA v. State Water Res. Control Bd., 426 U.S. 200, 203, 96 S.Ct. 2022, 2024, 48 L.Ed.2d 578 (1976). The amended CWA absolutely prohibits the discharge of any pollutant by any person, unless the discharge is made according to the terms of a National Pollutant Discharge Elimination System (“NPDES”) permit. 33 U.S.C. § 1311(a). This “zero discharge” standard presupposes the availability of an NPDES permit, allowing for the discharge of pollutants under the conditions set forth in the permit. Id. § 1342(a)(1). NPDES permits are usually available from the Environmental Protection Agency (“EPA”); however, 33 U.S.C. § 1342(c)(1) suspends the availability of federal NPDES permits once a state permitting program has been submitted and approved by the EPA. Thus, if a state administers its own NPDES permitting program under the auspices of the EPA, applicants must seek an NPDES permit from the state agency. See 33 U.S.C. § 1342(c)(1); Gwaltney v. Chesapeake Bay Foundation, 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987).  On June 28, 1974, the State of Georgia was authorized by EPA to administer an NPDES program within its borders. The Georgia agency responsible for administration of that program is the Environmental Protection Division (“EPD”) of the Georgia Department of Natural Resources. EPA-issued NPDES permits are thus not available in Georgia.

Hughey v. JMS Development Corp.,  78 F.3d 1523, 1524 -25 (11th Cir. 1996).  

Special Taxation Districts to Handle Infrastructure Maintenance

One of the ideas  policy makers discuss to address the problems with funding storm water system maintenance is to create special tax districts.  These districts would then impose assessments by geographic watershed areas to fund special projects including storm water system maintenance.   By adopting and implementing the districts on a local scale, local governments would hope to avoid the problems of approving and earmarking unpopular tax increases across the whole jurisdiction.   Special tax districts could make the adoption and implementation of more taxes politically acceptable.  The district could be used to justify the tax by area.

Law and Policy Related to Drainage and Flooding

Several recent decisions of the Georgia Supreme Court indicate that the court may be willing to loosen the civil law of drainage rights in order to relieve local governments from their duties related to maintenance of storm water systems.   In Kaplan v. City of Sandy Springs, the Supreme Court  issued an opinion that held that a county cannot accept a developer's express dedication of storm water pipes to the public without a written deed instrument from the developer to the county.     In  City of Atlanta v Kleber, the court held that the statute of limitations to address flooding caused by a defective pipe ran from the date of the original installation of the pipe.   These two opinions gave a county and a municipality means to avoid maintenance of pipe systems carrying public water from up stream development through private property owners' yards.