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A Blog about Real Estate, How it Can Be Damaged, and Disputes Over its Transfer

This blog is a personal blog written to discuss legal issues affecting Georgia property, and how it is damaged, transferred, and fought over. I write this partly to keep abreast of the law, and partly to offer a forum for my writing. In order to find content, I often analyze Georgia Supreme Court decisions. I try to update this blog as I can, but writing is a time consuming process.

Saturday, December 17, 2011

Who Decides Whether an Ordinance Has Been Violated?

The temptation of courts in cases involving land use ordinances is to permit the testimony of city or county officials to take over the issue of how local ordinances should be applied.  However, the rules are clear that local officials cannot testify to a jury regarding their opinion as to the meaning of an ordinance.  Ordinances are part of the law and must be construed by the courts.  
            An understanding of the evidentiary basis for ordinance construction and application is crucial in any nuisance or trespass case regarding soil and erosion or flooding.   Since it has been a slow couple of weeks for opinions from the Georgia Supreme Court, I decided to write a little about an evidence issue that affects nuisance and trespass cases.   In these cases, a defendant will often violate ordinances in connection with the actions that result in an injury to another property owner.   The proof of the violation of these ordinances is connected to the proof of the plaintiffs' case. 

            All aspects of the investigation, presentation, and defense of a land use case can be affected by a basic misunderstanding of the proper roll of the judge and jury.  It is not unusual for attorneys and litigants to evaluate their case based on an assumption that the findings of a county or city official regarding an ordinance violation are dispositive of their case.  To the contrary, the opinions of officials may not even be admissible in a trial.

County officials do not have the discretion to ignore the plain language of an ordinance. Henry County Record, Inc. v. Cmty. Newspaper Holdings, Inc., 274 Ga. 353, 353, 554 S.E.2d 150, 151 (2001).  The ultimate issue of whether a defendant has been negligent is an issue for the jury to determine and is not a proper subject of testimony.  Emory v. Dobson, 206 Ga. App. 482, 484, 426 S.E.2d 50, 52 (1992).  The testimony of county officers is not admissible regarding the plain meaning of an unambiguous ordinance.   DeKalb County v. Post Apartment Homes, L.P., 234 Ga. App. 409, 411, 506 S.E.2d 899, 901 (1998). 

State and superior courts cannot take judicial notice of county ordinances, which must be proven by a certified copy. Prime Home Properties, LLC. v. Rockdale County Bd. of Health, 290 Ga. App. 698, 700, 660 S.E.2d 44, 46-47 (2008).  The interpretation of an ordinance is a matter of law for the court to determine and is not a matter of fact for the jury to decide.  City of Buchanan v. Pope, 222 Ga. App. 716, 717, 476 S.E.2d 53, 55 (1996); Curlee v. Mock Enterprises, Inc., 173 Ga. App. 594, 600, 327 S.E.2d 736, 742-43 (1985). 
The judge is required to apply the rules of statutory construction to county and city ordinances.  The first rule of construction is that the court will apply the plain language of an ordinance as written without seeking to look behind the language.  Words are to be given their plain meaning unless a contrary intention appears in the definitions section of an ordinance.   Action Outdoor Adver. II, LLC v. Lumpkin County, Ga., 543 F. Supp. 2d 1334, 1345 (N.D. Ga. 2008).   “[T]he cardinal rule in construing ordinances is to carry into effect the intent of the legislative body (Lewis v. City of Smyrna, 214 Ga. 323, 104 S.E.2d 571)” Frier v. City of Douglas, 233 Ga. 775, 778, 213 S.E.2d 607, 610 (1975).  
The rules of construction of ordinances was summarized in the opinion in City of Buchanan v. Pope, 222 Ga. App. 716, 717, 476 S.E.2d 53, 55 (1996), as follows:
It is axiomatic that, if an enactment is plain and unambiguous, we must give its words their plain and ordinary meaning, except for words which are terms of art or have a particular meaning in a specific context. OCGA § 1-3-1(b). We must seek “to give meaning to each part of the statute and to avoid constructions which render a portion of the statute mere surplusage. [Cits.]” Moritz v. Orkin Exterminating Co., 215 Ga.App. 255, 256-257, 450 S.E.2d 233 (1994). “ ‘[A] statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes “in pari materia,” are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.’ [Cit.]” Bennett v. Wood, 188 Ga.App. 630, 632(1), 373 S.E.2d 645 (1988). Finally, “[i]t is a basic rule of construction that a statute or constitutional provision should be construed to make all its parts harmonize and to give a sensible and intelligent effect to each part, as it is not presumed that the legislature intended that any part would be without meaning.” (Citations and punctuation omitted.) Gilbert v. Richardson, 264 Ga. 744, 747-748(3), 452 S.E.2d 476 (1994). These principles apply in the interpretation of city or county ordinances as well as statutes. See, e.g., Hogan v. DeKalb County, 196 Ga.App. 728, 729, 397 S.E.2d 16 (1990) (harmonizing provisions of county sanitation ordinance in accordance with general statutory rule).

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