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). 

Road Abandonment Does Not Extinguish Private Easements on Plat

Cities and counties often engage in road abandonment at the request of developers or property owner associations or home owner associations.  For developers, the motive is usually to remove the road bed and permit development over a former road.  For associations, the goal may be to privatize subdivision streets in order to gate a community.  A recent opinion of the Georgia Court of Appeals in Zywiciel v. Historic Westside Village Partners, LLC,  2011 WL 5842763, p. 2, Slip Op., Case Nos. A11A1243, A11A1582   (Ga. App., Nov. 29, 2011),  reiterated the rules and reasoning followed in cases such as Northpark Associates No. 2, Ltd. v. Homart Development Co.,  262 Ga. 138, 138, 414 S.E.2d 214, 215 (1992), in holding that private easements in city streets created pursuant to recording of a subdivision plat by a developer are not extinguished by road abandonment.