Local Government Has Discretion Regarding Road Abandonment

Disputes sometimes arise regarding a local government's authority to abandon public streets and roads.  Generally, in Georgia it has been difficult to challenge an abandonment resolution by a county or municipality.  In fact, the Georgia General Assembly recently amended the abandonment statute to increase the discretion of local governments to abandon streets and roads.

Avoidance of Responsibility for Flooding and Erosion

The current economic environment in Georgia has affected maintenance and improvements to storm water pipes, drainage systems, culverts, and detention ponds.  Developers have gone bankrupt and county and city governments and large insurance companies are fighting to avoid responsibility for sewers and drains due to a lack of money to address problems due to flooding and erosion.  This era has come on the heals of a construction boom that lasted fifteen (15) years leaving drainage systems unattended and deteriorating.

Property owners suffering a nuisance due to problems created by extreme rainfall events have many options to find liable parties to repair the damages to their property, but are faced with finding a lack of funded parties to finance the repairs.  Moreover, large insurance companies that may insure land owners who have helped create a problem, and governments that may own the streets and roads routing storm water flows are fighting each case aggressively to deter future suits.  The emerging liability of municipalities and counties and insurers in Metro Atlanta is in the billions.   The avoidance of responsibility by all of the parties involved is further complicated by the possibility that deeper storms and extreme rain events, such as the event that plagued the North Georgia in September 2009, are becoming more and more frequent.   

Developers Must Take Care in Assignment of Detention Pond Maintenance Responsibilities

On November 21, 2011, the Georgia Supreme Court issued an interesting opinion involving application of a technical legal principle applicable to contracts that could have a wide ranging effect on existing legal relationships between lot owners in subdivisions, home owner associations, property owner associations, subdivision developers, and county and city governments.  In an opinion written by Chief Justice Hunstein in Kennedy Development Company v. Camp, Appeal No. S11G0274 (Slip Op., Nov. 21, 2011), Georgia's highest court held that the statutory limitation on indemnity clauses in  OCGA § 13-8-2 (b) applies to agreements between developers and associations under which a developer has attempted to turn over continuing liability to an association.  The effect of the ruling in Kennedy was to prevent a developer who had been named as a defendant from seeking to hold an association responsible for a claim that a land owner had brought against the developer for damages to a lake caused by excess storm water. 

Developers use and create detention ponds and retention ponds, or lakes, in subdivisions to capture the storm water runoff from new house and street construction.  The addition of hard, impervious surfaces in connection with subdivision development increases and concentrates the volume and velocity of storm water runoff into drainages and streams.  These changes to the natural, hydrology of land can cause injuries to down stream or down hill land owners, and lake owners, if detention and storm water pipes are not carefully constructed and maintained.   Developers create homeowner and property owner associations to take over responsibility for the continued maintenance of ponds after developers leave the associations. 

Undue Influence Over Person Making a Will Requires Proof of Coercion

One of the claims commonly asserted to contest a will is the doctrine of undue influence.  Under this doctrine, persons left out of a will may contest a will in probate on a claim that the heirs included in the will improperly influenced the maker of the will before his death. On November 7, 2011, the Georgia Supreme Court issued an opinion showing the difficulty in proving undue influence.  In the opinion in Simmons v. Norton, Case No. S0A1061, the court noted a follows:

Undue influence sufficient to invalidate a will amounts to deception
or force and coercion operating on the testator at the time of
execution such that the testator is deprived of free agency and the
will of another is substituted for his. Evidence showing only an
opportunity to influence and a substantial benefit under the will
does not show the exercise of undue influence. [Cit.]
Holland v. Holland, 277 Ga. 792, 793 (2) (596 SE2d 123) (2004).

In examining the facts of the case, the appellate court noted that the challenger to the will had failed to present evidence that the heirs included in the will had committed any acts amounting to deception, force and coercion that had deprived the person making the will of his free will thereby substituting the heirs' will for his free will.   Evidence simply showing that the heirs were close to the testator and had taken him to a lawyer to rewrite the will falls short of a showing of the high standard for showing undue influence.  The appellate court upheld summary judgment to the heirs in the will and rejected the claim of undue influence.

Property Can Be Transferred by an Oral Statement

One of the basic principles every law student studies in property law class is that the Statute of Frauds requires all transfers and gifts of land to be in writing in Georgia.  However, there is a gaping exception to the Statute of Frauds that permits an oral gift of transfers of land and easements making the resolution of the issue an issue of fact for a judge or jury.  On November 7, 2011, in the opinion in Jones v. Kirk, Case No. S11A0960, the Georgia Supreme Court discussed the exception in upholding a trial court's issuance of judgment that party asserting the exception had failed to present evidence showing the exception applied to the facts of that case.

The facts considered in the opinion in Jones, supra, involved a 2.2 acre tract that was part of a 40 acre parcel owned by heirs of an estate who sought to partition and sell the 40 acres after their father died.  A grandson, however, contended that his grandfather had orally given him the 2.2 acre tract before his grandfather died. 

The heirs brought a suit to partition the 40 acres for sale so that they could divide the proceeds.  The grandson then intervened as a party asserting his right to the 2.2 acres.  The trial court considered the evidence on a motion for summary judgment and held in favor of the heirs thereby rejecting the grandson's contention that his claim fell within an exception to the requirement that transfers of real estate have to be in writing under the Statute of Frauds.

On appeal, the Georgia Supreme Court affirmed the decision of the trial court.   The appellate court first noted that an exception does exist to the Statute of Frauds that could have allowed the grandfather to do what his grandson said, which was to give him the property without a deed: 

In this connection, an equitable exception to the Statute of Frauds (OCGA § 13-5-30 (4)) is contained in OCGA § 23-2-132, which provides in relevant part that equity will decree the specific performance of a parol agreement for land if “possession of lands has been given under such an agreement, upon a meritorious consideration, and valuable improvements have been made upon the faith [of the voluntary agreement or gratuitous promise of the donor].”

 (Jones, Slip Op.)

The court went on to examine the evidence and found that the grandson had failed to actually show that he had given a meritorious consideration or that he had shown improvements to the land made in reliance on the gift.   The grandson had argued that he moved a mobile home on to the property.  The Court, however, found that the home was mobile, was not a fixture, and was not an improvement to the land itself since it could be removed at will.  Accordingly, the appellate court upheld the decision of the trial court issuing summary judgment to the heirs.

The Case for the 2011 SPLOST in Forsyth County, Georgia

One of the items on the election ballot in Forsyth County, Georgia on November 8, 2011 is the SPLOST, Special Purpose Local Option Sales Tax, which seeks to raise money for a new jail and courthouse for the county.  There is no question the sales tax should be approved.

In general a sales tax operates differently from an income tax in that it is not progressive in nature and does not penalize anyone.  A SPLOST is a form of a sales tax that is often used in a Georgia county to help fund essential government services such as schools, fire stations, or court houses.

Surveyor's Testimony May Prove Property Ownership

In cases involving disputes over the ownership of land between adjacent landowners, various methods of proof of ownership are available to the parties.  In the opinion in Wallis v. Porter, Case No. S11A0913 issued November 7, 2011, the Georgia Supreme Court upheld the decision of a trial court in Union County in which the prevailing landowner offered various forms of evidence including testimony from a surveyor qualified as an expert witness.  The Georgia Supreme Court, which is an appellate court sitting in a review capacity on appeal, held that the standard of review only required a showing that "any evidence" existed to support the ruling of the trial court.  The appellate court held that it was not sitting in a capacity to reweigh the evidence.

Challenges to Decisions on Conditional Use Pemits Under Zoning Ordinances

In Georgia, a conditional use permit, also known as a special use permit or a use permit, is a type of zoning permit that a land owner must seek for certain, listed uses of property that are not generally allowed a a matter of right within a zoning district, but are allowed following an application and permit process designed to ensure that the listed use will not negatively impact neighbors.  Zoning ordinances create criteria or guidelines that the local government must consider on an application for such a permit.  Developers, land owners and neighbors are often faced with consequences related to the grant or denial of conditional use permits of land.   Challenges to decisions of boards of commissioners or city councils are difficult for the party that lost its position before a board or council.   The standard of review is the main obstacle to a court appeal.  See City of Atlanta v. Wansley Moving & Storage Co., 245 Ga. 794, 267 S.E.2d 234 (1980).

Smart city and county attorneys take advantage of a line of Georgia appellate decisions to frame zoning ordinances  in a way that takes advantage of the standard of review.  Under an ordinance in which the decision to grant or deny a conditional use permit is ultimately left to the discretion of the governing authority, the standard of review that a court applies on an appeal of such a decision requires the appellant to show that the decision of the legislative body was arbitrary and capricious, or constituted a gross abuse of discretion.  Any evidence supporting the decision of the body is sufficient to show that the decision was not arbitrary and capricious or a gross abuse of discretion.   The court looks at the sufficiency of the evidence before the legislative body in addressing this issue, and does not consider new evidence.

Examples of how the standard of review makes for a hard argument in front of a trial court on an appeal of a decision of a legislative body on an application for a conditional use permit can be imagined from either the viewpoint of the applicant for the conditional use permit, or from the viewpoint of the opponents, which are typically neighboring land owners.   For example, where a board or council denies such a permit under an ordinance that leaves the consideration of a conditional use permit to the discretion of the legislative body, the applicant developer seeking to appeal the decision to a court must show that there was no evidence that supported the decision, making it arbitrary and capricious, or a gross abuse of discretion.   Or, where a group of neighbors seeks to fight a grant of a conditional use permit by a board of commissioners or city council under an ordinance that leaves the matter to the discretion of the legislative body, the challengers must show that there was no evidence to support the grant of the application.   Either showing is tough on appeal to superior court.

Conditional use permits are often required under zoning ordinances for churches, schools, and other uses that are commonly institutional in nature, but are sited in or near residential use districts.  Residential uses are commonly thought of as incompatible with institutional uses due to traffic, noise, and congestion.    Of course, the residential neighborhoods themselves create the users and demand for churches and schools that service the residents of the neighborhoods.  Zoning ordinances use conditional use permits to balance the needs of the neighbors against the impacts from the uses.