Fortson v. Tucker
307 Ga. App. 694
Ga. Ct. App.2011Background
- In Feb. 2004, Tift County issued two permits allowing manufactured homes on Massey property.
- In Apr. 2004, Ander and Richard Tucker challenged the permits by appealing to the Board of Appeals.
- At the Apr. hearing, the Tuckers argued the permits violated agricultural-use lot-size requirements; no decision was rendered.
- On May 27, 2004, Massey variances were considered; on June 15, 2004, the Board affirmed the permits and granted the variances.
- The Tuckers did not appeal the Board’s June 15, 2004 decision; instead, on Apr. 10, 2007, they filed suit against the County defendants and Masseys.
- The complaint asserted fraud, conspiracy, nuisance, ministerial-duty failure, vicarious liability, and civil rights claims related to the Board’s 2004 resolution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Tuckers’ claims against the County defendants are time-barred | Tuckers assert claims independent of the zoning decision. | OCGA § 5-3-20 requires timely appeal; untimely collateral attack barred. | Time-barred; untimely collateral attack. |
| Whether the complaint is an appeal or an impermissible collateral attack on the zoning decision | Complaint appeals the Board’s action rather than seeking collateral relief. | Complaint is an indirect attack; proper remedy was timely appeal. | Complaint is an untimely appeal, barred. |
Key Cases Cited
- Mayor & Aldermen of the City of Savannah v. Savannah Cigarette, etc., 267 Ga. 173, 476 S.E.2d 581 (1996) (Georgia Supreme Court, 1996) (untimely suit attacking zoning as applied; must appeal within 30 days)
- Hollberg v. Spalding County, 281 Ga.App. 768, 637 S.E.2d 163 (2006) (Georgia Court of Appeals, 2006) (cannot circumvent timely appeal by collateral attack)
- Flippen Alliance, etc. v. Brannan, 267 Ga.App. 134, 601 S.E.2d 106 (2004) (Georgia Court of Appeals, 2004) (authority on timely appeal and review procedure in zoning matters)