Georgia Supreme Court Upholds Discretion of County to Abandon Road

In Scarborough v. Hunter, S13A0060 (July 11, 2013), the Georgia Supreme Court upheld the discretion of a North Georgia county to abandon a public road due to the expenses that would have been incurred to maintain the road.   The court relied on an application of the language in O.C.G.A. 32-7-2(b)(1) including a 2010 amendment by the state legislature.  The decision held that the trial court had committed an error in overruling the abandonment.

The appellate court held the statute gave the board of commissioners of the county discretion to abandon the road where the facts indicated problems in the road existed that were traceable to a developer's alleged failure to properly construct the road prior to dedication and acceptance by the county.

The Supreme Court also went on to apply new language in the abandonment statute that was enacted in 2010 by the Georgia General Assembly.  The legislature added language to the abandonment law that now enables local government to abandon roads when to do so is deemed otherwise in the public interest.   The prior version of the law required the showing of a substantial public purpose.  The old language had given local governments pause in exercising their abandonment powers.

Approaches to Residential Storm Water Management - Part I, Description of Possible Problems

This part one of a series of posts will summarize various approaches to management of storm water problems by homeowners, farmers, and other raw land owners who may experience flooding and drainage problems around their homes and property.  These posts are not intended to recommend litigation or any one approach, but simply to educate people as to what they might do to deal with these issues.   The post is written from the legal perspective of storm water responsibilities that is in effect in Georgia and some other states, and would be less helpful in states like California that may employ different legal regimes to attach storm water responsibilities.  The post is a work in progress and may be edited from time to time to eliminate rambling and add points.  

Developers build subdivisions around a model to maximize profit based on the number of lots they can sell at a price points dictated by the real estate market and the demands of buyers.  In theory, on a basic level pursuit of this model in will lead to maximization of economic benefits to everyone concerned - the raw land owner that supplies the land, the developer, builders, real estate agents, and home buyers.   But as with all theories, real world application leads to what economists may call negative externalities. What does this have to do with flooding or drainage?  It is a complicated way of saying that the way land is developed can lead to problems with dealing with the effects of  development that are not necessarily any body's moral fault, with an emphasis on the work "moral," and the words "not necessarily."  

There are various factors that relate to flooding and drainage issues that individual homeowners may experience.  The number of lots in relation to the overall subdivision geographical area defines density, or subdivision land size divided by lot number.  The density of a subdivision is directly related to the amount of impervious surfaces generating storm water, such as roofs, driveways, and streets.   The topography of the land subdivided to lots as well as the topography of land both above and sometimes below a subdivision are also factors that affect flooding and drainage.   A subdivision down hill from a commercial shopping center, offices, or other commercial uses with a high proportion of rooftops and asphalt parking in relation to land area will experience more drainage and flooding issues if the water is directed through the subdivision by the topography.   Water flows down hill.  

Bank Can Seek Immediate Relief to Remove Commercial Property Owner

In Alstep, Inc. v. State Bank & Trust Co., Case No. S13A0117 (Ga., July 1, 2013), an opinion issued today, the Georgia Supreme Court addressed circumstances in which a commercial gas station owner refused to vacate the business after the bank foreclosed on the property.   The court also upheld the appointment of a receiver and the issuance of an immediate injunction to restrain the property owners.   The case stands for the proposition that a bank can move for the appointment of receiver to avoid waste and conversion of the property and incomes from the business.

In addition, the court held that the bank could also execute its rights to collect on the loan secured by the foreclosed gas station on other property that the bank had taken as collateral.   The court held the bank was required to seek a deficiency on the loan collection -- the negative difference between the property value and the loan amount -- within thirty (30) days of the foreclosure, but this did not prevent the bank from foreclosing on other property that also stood as collateral for the loan.  

Maneuvering Assets Not Always a Good Idea to Avoid Equitable Division in Divorce

Sometimes a spouse seeking a divorce will attempt to avoid the effect of a division of assets and alimony by clouding his finances.   In Driver v. Driver, S13F0512 (Ga. April 15, 2013), the Georgia Supreme Court reviewed and upheld a ruling of a lower court that equitably divided the assets of parties to a divorce. The lower court had made a substantial award of alimony and assets to a wife after finding that the husband had made troubling claims that his assets were cross encumbered, and that his net worth had substantially declined in value in the period leading up to the filing of the petition.  The main significance of the opinion was the holding that superior courts have ample discretion to make an equitable division of assets that the appellate court will not readily reverse absent harmful error.  

Second Amendment Rights Upheld in Georgia

In Ferguson v. Perry, Case Nos. S12A1643, S12A1644, and S12A1645 (Ga. March 25, 2013), the Georgia Supreme Court upheld the ability of a citizen to seek restoration of his right to bear arms after a criminal conviction. The Court held that the Probate Court Judge had wrongfully denied the petitioner's application for a weapons carry license under O.C.G.A. Section 16-11-129 in violation of his rights under the Second Amendment to the United States Constitution and the Georgia Constitution.   The petitioner had established that the Georgia Board of Pardons and Paroles had restored his rights and that the Bureau of Alcohol Tobacco and Firearms had removed any disabilities from carrying a weapon.  The Clayon County, Georgia petitioner had been convicted of moonshining in 1971.

The supreme court reasoned that Georgia law regarding the issuance of weapons carry licenses to citizens acknowledges the disabilities caused by a conviction could be restored following legal process, which the petitioner had pursued.  The court further found that the Probate Judge had no grounds to deny the application, and that the denial of the application constituted an abuse of discretion subjecting the judge to a writ of mandamus to compel issuance of the license to the applicant.  The case stands for the proposition that a Probate Court Judge does not have the right to deny a weapons carry license to an individual who has had his right to bear arms restored pursuant to the proper procedures afforded by state and federal laws.

Storm Water Utility Fee Held Constitutional

The Georgia Supreme Court recently upheld the constitutionality of an assessment under a Storm Water Utility Ordinance imposed by a local government in Georgia. See Homewood Village,LLC v. Unified Government of Athens-Clarke County, Case No. S12A1836 and CaseNo. S12A1837 (Ga., March 4, 2013).  The ordinance imposed an assessment on property owners based on their relative contribution to the need for storm water system improvements. 

The plaintiff in the case alleged the ordinance imposed an unconstitutional tax.  However, the Georgia Supreme Court held that the assessment was instead a valid fee.  The Court distinguished the assessment from a tax on the grounds that the local government calculated the amount of the assessment based on the costs of storm water improvements required to service storm water runoff from the plaintiff's land.   The Court held a tax is imposed as to amount regardless of the calculated use of the money, while a fee on the other hand is related to an individually assessed charge for benefits the government or its authority provides to the fee payor.  

Constitutional Challenges to Zoning Decisions

In Association of Guineans in Atlanta, Inc. v. Dekalb County, Georgia, the Supreme Court of Georgia reaffirmed the rule that a constitutional challenge to a zoning decision must be made before the zoning body.  Appeal Case No. S12A1603 (Ga., Feb. 4, 2013).  The court held that the plaintiff, who challenged a denial of its petition for a special use permit for a religious facility, had failed to raise its constitutional challenges to the denial of the application before the board of commissioners.  Therefore, the plaintiff was not able to challenge the zoning decision before the superior court.

The court went on, however, to reverse the superior court's dismissal of the plaintiff's claims under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. Section 2000cc.  In the second holding, the court reversed the Dekalb County Superior Court because the judge had failed to apply the correct standard for consideration of a motion to dismiss.

Wills May Impose a Penalty on Challengers

In the first group of decisions issued by the Georgia Supreme Court in 2013, the court reviewed a trial court's decision allowing a lawsuit to determine the enforcement of a clause in a will that cancelled rights to receive benefits by someone who challenged the will.  The language of the will, which is called an in terrorem clause, provided as follows:

Should any beneficiary contest or initiate legal proceedings to contest the validity of this Will or any provision from being carried out in accordance with its terms (whether or not in good faith and with probable cause), then all benefits provided for such contesting beneficiary, and any such beneficiary's descendants, in this Will are revoked and annulled. 

Norman v. Gober, Appeal Case No. S12A1728 (Ga., January 7, 2013).

In Norman, supra, the court considered facts in which a person had previously challenged a will on behalf of a minor who was not an heir at law.  The petitioner had lost the first challenge due to a lack of standing, which is the legal interest necessary to bring a lawsuit.   In the second proceeding, the executors retaliated by enforcing the in terrorem clause to seek a determination that the petitioner could not take under the will.

In the opinion in Norman, supra, the court upheld the maintenance of the executor's petition to enforce the in terrorem clause.  The court held that the fact that the first suit had been rejected due to a lack of standing did not matter.  That suit was still a losing, "initiat[ion] of legal proceedings"  under the language of the in terrorem clause.  

Failure to Disclose Defects in Sale of Homes

In Georgia, the seller of a home pursuant to a form supplied by a real estate agent can result in a duty by the seller to disclose the existence of problems with the home.  Georgia sales contracts often contain a disclosure statement that the contract incorporates as part of the contractual  promises a seller is making.  When a seller checks, "No" to questions regarding the existence of flooding or other defects in a house contract, the seller may be liable for damages once the buyer moves in and discovers the problem.  For example, in one case decided by the Georgia Court of Appeals, there was evidence that the seller had sold a house that was in a low lying area.   The court noted that the buyers could not have reasonably discovered the existence of a flooding and drainage problem since it would not occur except during rains.  Unless the buyer just happened to be at the house inspecting it during an intense rainfall, the buyer would not have discovered the problem.  The court found that the jury could properly conclude in that case that the seller had an affirmative duty to disclose these facts of which it had superior knowledge. Rose Mill Homes, Inc. v. Michel, 155 Ga. App. 808, 809, 273 S.E.2d 211, 213 (1980).

A common form used by a Georgia realtors association for the sale of residences contains a disclosure statement that a seller signs and delivers to potential buyers in connection with the agreement.  The form has been revised in recent years to include a provision that makes the disclosure statement part of the contents of the sales contract.  See Georgia Realtors Red Book. Accordingly, the buyer who checks, "No" to the question regarding the existence of flooding may be liable for fraud and/or breach of contract where a problem exists.  Fraud can arise where the seller knew of the problem and represented that it did not exist.  See Rose Mill Homes, Inc., supra.  In addition, breach of contract, which is a separate cause of action that does not require the showing of fraud, does not require preexisting knowledge of the problem.  A person who contractually represents a fact as true is responsible for the consequences when the fact turns about to be false -- regardless whether he knew it was false or not.


 

County Local Law Amended by Local Ordinance

In reviewing a county ordinance amending a local law, the Georgia Supreme Court held that a county could permit its county officials to contract with county government provided certain procedures were followed.  Board of Commissioners of Miller County v. Callan, 290 Ga. 327 (2012).

Georgia counties are empowered by enabling legislation adopted by the Georgia General Assembly in addition to general statutes and the constitution.  Under this scheme, the local laws create the specific framework for administration of county governmental functions within the general framework established by general legislation and the constitution.    

In Board of Commissioners of Miller County, supra, the supreme court reviewed an ordinance in which the Miller County Board of Commissioners amended the local legislation for the county adopted by the General Assembly.  Certain citizens sued the county when its commissioners changed the local law to allow county officials to enter into business with the county.  Among other things, the challenge was based on the local law that prohibited officials from profiting from county contracts.   

In reviewing the facts, the court held that the county commissioners could amend the local law thereby permitting officials to profit from government contracts in the county.