Greene County v. North Shore Resort at Lake Oconee, LLC
238 Ga. App. 236
Ga. Ct. App.
1999
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GREENE COUNTY v. NORTH SHORE RESORT AT LAKE OCONEE, LLC.

A99A0798

Court of Appeals of Georgia

MAY 25, 1999

238 Ga. App. 236 | 517 SE2d 553

(498 SE2d 127) (1998).

Favors essentially contends that the pistol-whipping of Humphrey could have constituted either assault or battery, which is defined as “intentionally caus[ing] substantial physical harm or visible bodily harm to another.” OCGA § 16-5-23.1 (a). As Favors caused visible bodily injury to Humphrey, the jury could have convicted Favors of battery. . However, Favors did more than just hit Humphrey. Before hitting him, Favors placed a loaded gun next to Humphrey‘s head and uttered threatening words. This separate act, completed before Favors began striking Humphrey, constitutes aggravatеd assault. See . Unlike the pistol-whipping incident, battery is not a lesser included offense of this separate act of aggravated assault. . This is true notwithstanding the fact that a battery subsequently occurred. Because battery was not a lesser included offense in Favors’ act of holding a loaded gun to Humphrey‘s head, the trial court was not required to charge the jury with regard to battery. See . Accordingly, Favors’ attorney did not render ineffective assistance in failing to request such a charge. .

Judgment affirmed. McMurray, P. J., and Andrews, J., concur.

DECIDED MAY 25, 1999.

Cynthia A. Price, for appellant.

J. Tom Morgan, District Attorney, Robert E. Statham III, Robert M. Coker, Assistant District Attorneys, for appellee.

A99A0798. GREENE COUNTY v. NORTH SHORE RESORT AT LAKE OCONEE, LLC. (517 SE2d 553)

ELDRIDGE, Judge.

North Shore Resort At Lake Oconee, LLC (“North Shore“), plaintiff-appellee, owns and operates a business located on the shore of Lake Oconee in Greene County, defendant-appellant, and a resort business has operated there since 1988, when the business was known as Carey Station Resort, the predecessor in title. North Shore bought Carey Station Resort as a going business and property in 1996, chаnging its name to North Shore. North Shore is located within an area presently zoned LR-2 pursuant to the Greene County regulations, which had an effective date of April 19, 1989. However, the date of passage of the manufactured home amendment was August 8, 1990. The entire Greene County regulation pertaining to zoning was not stipulated but was placed in evidence. In fact, even the stipulation of “LR-2” does not reveal what other uses are permitted under such zoning, but the LR-1 and LR-2 regulations do.

The August 8, 1990 amendment of the 1984 Land Developmеnt Regulations was also placed in evidence, along with the definitions section and the LR-1 and LR-2 zoning provisions. “Dwelling, One Family” is defined as “a detached building designed for or occupied by one family.” “Dwelling Unit” is defined as “one or more rooms with kitchen facilities designed as a unit for occupancy by one family for cooking, living and sleeping purposes.” “Family” is defined as “one or more persons occupying a single dwelling unit, provided that unless all members are related by blood or marriage, no such family shall contain over five (5) persons, but further provided that domestic servants employed on the premises may be housed on the premises without being counted as a family or families.” “Building” is defined as “[a]ny structure intended for shelter, housing, or enclosure of persons, animals, or chattels.” “Park trailer” is not defined; however, “travel trailer” is defined as “a vehicle portable structure built on a chassis, designed to be used as a temporary dwelling for travel and recreational purposes, having a body width not to exceed eight (8) feet.” “Structure” is dеfined as “anything constructed or erected with a fixed location on the ground. Among other things, structures include buildings, mobile homes [(‘manufactured homes‘)], walls, fences, billboards, and poster panels.”

At the time Carey Station Resort was constructed in 1988, “[m]obile [h]ome” was defined as “a detached residential dwelling unit designed for transportation after fabrication on streets or highways on its own wheels or a flatbed or other trailer, and arriving at the site where it is to be occupied as a dwelling complete and ready for occupancy except for minor and incidental unpacking and assembly operations, location on jacks or other temporary or permanent foundations, connections to utilities, and the like. A travel trailer is not to be considered a mobile home.”

On March 19, 1997, Vivian Breeding, Director of Greene County Planning & Zoning, notified North Shore that: (1) the property was within LR-2 zoning; (2) LR-2 zoning permits use of the property as a campground; (3) the only limitation on the number of campsites that can be developed ‍​‌​‌‌​‌​​​​‌​​‌​‌‌​​‌​​​‌​‌​​​‌​‌‌​‌‌​‌‌​​​‌‌​​‌‍on the property is availability of septic tanks to service the sites; and (4) the sites may include recreational vehicle pads. Mobile home parks are permitted within LR-2, and one mobile home may be placed on each separately owned land, other than a mobile home park.

On July 15, 1997, Greene County advised North Shore that Greene County considered that it was operating a “Manufactured Home Park,” i.e., mobile home park, within the meaning of the county regulations; that it was subject to regulation as such; and that evidence of approved plats for “Carey Station Resort” could not be found. Greene County based such position on the contention that: (1) a recreational vehicle, “Park Trailer,” is actually a “Manufactured Home” and not a “Travel Trailer“; and (2) a “Park Trailer” is a long-term, single family dwelling.

The only portion of the Greene County amended regulations stipulated was Paragraph 7.2 (v) defining “Manufactured Home“:

A structure transportable in one (1) or more sections, designed to be used for long term occupancy as a single-family dwelling. Such a dwelling shall be constructed in accordance with the Federal Manufactured Home Construction and Safety Standards, which came into effect June 15, 1976, and shall bear an insignia issued by the U. S. Department of Housing and Urban Development (HUD). The term “manufactured home” shall replace the term “mobile home” wherever the latter term is found in the aforesaid Code.

North Shore contends that park trailers are recreational vehicles (“RVs“), including pop-up campers, fifth wheel straight trаilers/park trailers, and motor homes. RVs are registered with the Department of Motor Vehicles as recreational vehicles. Only RVs are allowed into North Shore.

A park trailer has a fifth wheel for hauling and is designed for greater mobility and movement than a manufactured home, but it is left on a pad on its wheels for a longer period of time than other RVs. A park trailer must be removed from the premises for two weeks each year, which demonstrates that it remains readily movable. A park trailer is not manufactured to HUD specifications for a manufactured home and has a maximum area of 400 square feet. The wheels are not removed from the chassis of a park trailer, as are wheels from a manufactured home, and a park trailer is not placed on a permanent foundation.

The campsites within North Shore are subject to certain declarations of covenants, conditions, and restrictions for the North Shore Resort at Lake Oconee (“declarations“), which are recorded in the deed records of the Superior Court of Greene County. The declarations provide that the property shall be used solely for recreation, including camping, picnicking, hiking, boating, fishing, sports and other recreational uses. A lessee is specifically and expressly prohibited from occupying or using any portion of the property for residential purposes or to claim residency in Greene County, Georgia, based upon such use. No permanent dwelling may be placed on the property; no lessee сan occupy the property on a permanent basis; and the property must be vacated for two weeks out of each calendar year. In addition to the declaration prohibitions, the lease on all property provides that (1) a campsite may be used only for vacation purposes; (2) no permanent dwellings may be erected on any site; and (3) the site cannot be a principal dwelling or basis for a residency claim. Lessees are subject to the covenants and any other rules and regulations of North Shore, which prohibit storage buildings and propane tanks installed on a campsite. Thus, lessees must agree to temporary occupancy at North Shore in temporary park trailers.

On September 15, 1997, Greene County again notified North Shore that it was violating the county ordinance by operating a mobile home park.

North Shore intended to lease the sites for placement of “Park Trailers,” and had already leased some sites for the placement of “Park Trailers.” Beсause of the position of Greene County that park trailers are manufactured homes and that North Shore must obtain a permit for a manufactured home park to lease pads for park trailers, North Shore was unable to lease the pads and was uncertain of its rights.

On October 18, 1997, North Shore filed a complaint seeking injunctive relief against Greene County and seeking a temporary restraining order (“TRO“). On February 5, 1998, the trial court denied the TRO. On April 28, 1998, North Shore amended its complaint to seek a declaratory judgmеnt.

On September 18, 1998, after a hearing, the trial court entered a declaratory judgment that declared that a park trailer is not a manufactured home and that a park trailer is not subject to regulation by Greene County as a manufactured home. The trial court filed no findings of fact and conclusions of law with the judgment; therefore, on October 5, 1998, Greene County filed a motion requesting that the trial court make findings of fact and conclusions of law. On October 8, 1998, the trial court denied such request. On Monday, October 19, 1998, Greene County filed its notice of appeal of the judgment and of the denial of its motion for findings of fact and conclusions of law.

Held:

1. Greene County contends that the trial court erred in failing to rule on the admissibility of expert testimony from plaintiff‘s witness, Wright, regarding whether he was, in fact, an expert witness or whether his opinion was that of a lay person and on the relevancy of such opinion. We do not agree. This was a non-jury trial where the trial court sat as trier of fact. The record is silent where the trial court did not rule on the record as to objections on admissibility of evidence and made no findings of fact indicating how the trial court ruled on such evidence.

“Where evidence is heard by the judge alone and without the intervention of a jury, it will be presumed that the judge considered only legal and admissible evidence, unless the record clearly indicates that the contrary is true. [Cit.]” . The trial court, sitting without a jury, can eliminate the wheat from the chaff with reference to irrelevant and immaterial evidence, and it is presumed ‍​‌​‌‌​‌​​​​‌​​‌​‌‌​​‌​​​‌​‌​​​‌​‌‌​‌‌​‌‌​​​‌‌​​‌‍that in consideration of thе evidence, legal testimony was selected. The judgment will not be reversed where there is legal evidence to support it. ; . Where the trial court alone tries the case, the presumption is that the judgment was rendered only upon competent and legal evidence before him, and even if illegal evidence was admitted, it does not require a new trial. ; . Thus, this Court presumes the correctness of the trial court‘s judgment without inferring reversible error absent evidence of harm. .

2. Greene County contends that the trial court abused its discretion in denying its request to make findings of fact and conclusions of law in support of its judgment. We do not agree.

OCGA § 9-11-52 provides for findings of fact and conclusions of law when the trial court tries a case without a jury. If either party prior to judgment or ruling on interlocutory injunctions or in all non-jury trials makes a motion for findings of fact and conclusions of law to be made by the trial court, then the trial court shall “find the facts specially and shall state separately its conclusions of law,” because such provision is mandatory under the 1987 amendment upon timely request made on the record prior to judgment. OCGA § 9-11-52 (a); ; see generally ; ; . “The purpose of findings of fact is threefold: [(1)] as an aid to the trial judge‘s process of adjudication; [(2)] for purposes of res judicata and estoppel by judgment; and [(3)] as an aid to the appellate court on review.” (Citation and punctuation omitted.) ; ; accord . Absent a timely request prior to the entry of the order or judgment, the trial court does not err in failing to make findings of fact and conclusions of law as a part of the judgment. See ; ; .

Since Greene County requested findings of fact and conclusions of law only after the entry of judgment, it was within the discretion of the trial court whether to grant or deny such request. OCGA § 9-11-52 (c); . Where the case is complex and has an extensive record, it would be an abuse of discretion to deny such post-judgment motion when made at the time judgment was entered, because such refusal to make specific factual findings makes appellate review impossible. ; . However, such was not the case here, where the issues and the recоrd were both uncomplicated. .

A motion made under [OCGA] § 9-11-52 (c) is, in essence, a vehicle to allow a party to extend the time for a trial court to amend its findings beyond the end of the term. Neither [OCGA] § 9-11-52 (c) nor any other section of the Civil Practice Act changes the rule that a trial judge has the inherent power during the same term of court in which the judgment was rendered to revise, correct, revoke, modify or vacate the judgment, even upon his own motion. . . . A superior court retains plenary control over judgments entered during the term at which they are entered, and in the exercise of a sound discretion may [amend them by adding omitted findings of fact and conclusions of law], and such discretion will not be controlled unless manifestly abused. . . . [T]his court will not reverse his decision unless such discretion is manifestly abused.

(Citations and punctuation omitted; emphasis in original.) . There being no showing of a manifest abuse of discretion, the trial court‘s ruling is affirmed.

3. Greene County contends that the trial court erred in finding that “park trailers” are not “manufactured homes” under the Greene County Regulations. We do not agree. In 1990, Greene County, in developing its new definition оf manufactured homes, incorporated by reference Federal Manufactured Home Construction & Safety Standards. 24 CFR § 3282.8 governs “manufactured homes.”1 However, “recreational vehicles” are expressly excluded from “manufactured homes,” and are defined in the regulations as:

(1) [b]uilt on a single chassis; (2) 400 square feet or less when measured at the largest horizontal projection; (3) [s]elf-propelled or permanently towable by a light ‍​‌​‌‌​‌​​​​‌​​‌​‌‌​​‌​​​‌​‌​​​‌​‌‌​‌‌​‌‌​​​‌‌​​‌‍duty truck; and (4) [d]esigned primarily not for use as a permanent dwelling, but as temporary living quarters for recreational, camping, travel, or seasonal use.

The Greene County Regulations, in this definition of “manufactured home,” rely upon such Federal Manufactured Home Construction & Safety Standards, which came into effect June 15, 1976. See 24 CFR § 3282; Greene County Regs. Par. 7.2 (v). Thus, Greene County incorporated by reference “recreational vehicles” as excluded from its definition of “manufactured homes,” because the federal standards, used in the definition of “manufactured homes,” specifically exclude “recreational vehicles” from being subject to such standards. 24 CFR § 3282. The LR-2 zoning requires of an individual “manufactured home” that “[t]he unit is supported under all exterior walls by a permanent foundation and the undercarriage is completely enclosed,” but also provides “that sites may include Recreational Vehicle pads.” This regulation is inconsistent unless “recreational vehicles” are not treated as “manufactured homes.”

Thus, the regulations are ambiguous and in conflict on their face, because the definition of “manufactured home” is so overly broad that it seems to include all “travel trailers” and “recreational vehicles” within its definition, unless the regulations are read to specifically exclude them. However, at the same time, the definition of “travel trailers” excludes itself specifically from “manufactured homes,” and the definition of “travel trailers” is broad enough to include all “recreational vehicles.” Further, LR-2 requires that “manufactured homes” have a permanent foundation and that the under-carriage be covered, but that a “recreational vehicle” may sit only on a “recreational vehiclе pad,” because the “recreational vehicle” is intended to be mobile. A “manufactured home” is a structure, but a “structure” is anything “constructed or erected with a fixed location on the ground, or attached to something having a fixed location to the ground.” (Emphasis supplied.) However, a “travel trailer” is “a vehicular portable structure built on a chassis, designed to be used as a temporary dwelling for travel and recreational purposes, having a body width not exceeding eight (8) feet,” for normal highway travel. (Emphasis supplied.) Clearly, a “travel trailer” is not intended by the regulations to be treated as a “manufactured home,” because it is both designed and used for purposes requiring mobility, i.e., used temporarily for travel, recreation, camping, or seasonal use.

A clear, plain-meaning, unambiguous ordinance is not to be construed by the court; however, where the ordinance is in fact, ambiguous, so as to appear to be in conflict with its own provisions, then the court will construe the ordinance to determine its true intent. . The courts, in interpreting оrdinances, must look for the intent of the governing body and construe the ordinance to effectuate that intent. All words, except words of art, shall be given their ordinary signification. .

“In construing an ordinance or resolution of a governmental unit, if the language is susceptible of more than one construction, that construction is preferred which will render it valid rather than invalid.” Language in an ordinance will be given a reasonable and sensible interpretation in order to carry out legislative intent and render an ordinancе valid.

(Citations omitted.) .

But where an ambiguity exists either because of uncertainty in the meaning of words, conflicts with previous laws, or conflicts between different clauses in the same statute, courts should look beyond the verbiage and discover the intent. While all parts of the statute should be preserved, yet a cardinal rule of construction is that the legislative intent shall be effectuated, even though some verbiage may have to be eliminated. The legislative intent will prevail over the literal import of the words.

(Citation and punctuation omitted.) . “It is the duty of the court in construing an ambiguous statute to give it a construction, if the language permits, that will sustain the Act, rather than a construction that will render it invalid.”

By objective standards, a “travel trailer” is intended to be a vehicular portable trailer built on a chassis that is designed and intended to be capable of frequent moves, with a maximum width of eight feet for highway travel, which is within normal highway width limitations, and is not designed to be fixed to the ground by a foundation, but to sit on a recreational vehicle pad so that it can be easily moved. OCGA § 32-6-23. “Manufacturеd homes” come in widths from eight to sixteen feet wide; two can be joined to form a “double wide.” The definition also contains a subjective standard that is entirely dependent upon the use, i.e., “to be used as a temporary dwelling.” A reasonably prudent person would use as a temporary dwelling what was designed for temporary use, although such temporary dwelling also may be used as “a building designed or used for permanent living quarters for one or more families or individuals.” Therefore, the ‍​‌​‌‌​‌​​​​‌​​‌​‌‌​​‌​​​‌​‌​​​‌​‌‌​‌‌​‌‌​​​‌‌​​‌‍objective design of the trailer for normal use controls, rather than the subjective intent of the user. Thus, travel and recreational design determines the temporary nature of the trailer, notwithstanding that there may be those individuals who may use it as a permanent dwelling. Since the definition of “manufactured home” incorporates by reference the federal standards for “manufactured homes,” then it also incorporated by reference that portion of the federal regulations defining “recreational vehicles.” 24 CFR § 3282.8 (g). Such definitions are not in confliсt with the definition of “travel trailer,” which is more specific, i.e., (1) “[b]uilt on a single chassis“; (2) “400 square feet or less“; (3) “permanently towable by a light duty truck“; and (4) “[d]esigned primarily not for use as a permanent dwelling but as a temporary living quarters for recreational, camping, travel, or seasonal use.”

“Travel trailers” or “recreational vehicles” define and describe a “park trailer,” because a “park trailer” is 400 square feet or less, is pulled by a pickup truck, and is designed to be moved from the prem-ises once a yеar for at least two weeks; this does not describe a “manufactured home.” A “recreational vehicle” or “travel trailer” must have a registration and license tag. OCGA § 40-2-20 (a). Since a “manufactured home” is not expected to be moved on the highway except for installation, then only the moving trucker must have a special license for the move. OCGA § 40-2-38 (b). “Mobile (manufactured) homes” require a specially issued certificate of title. OCGA § 40-3-31.1. Pages 205, 206, and 207 of Exhibit 10 show photographs of typical park trailers situated on recreational vehicle pads; pages 203 and 206 of Exhibit 10 show photographs of a motor home/recreational vehicle situated on a recreational vehicle pad, which is a self-propelled recreational vehicle. The only real differences between a motor home and a park trailer are that a motor home is self-propelled and has a front and rear axle.

The leases, rules, regulations, and covenants for North Shore prohibit a park trailer from being used as a permanent dwelling, and to ensure that it is used only as a temporary dwelling, the lessee is required to move the park trailer off North Shore for at least two weeks each year. Despite the subjective intent of the lessee/park trailer owner, such recreational vehicle or travel trailer cannot be a permanent home, because it must be removed once a year for at least two weeks, when it is mobile. Since “mobile homes” under the 1990 regulations are now called “manufactured homes,” then park trailers, as travel trailers or recreational vehicles, are not manufactured homes. Likewise, the new definition of “manufactured homes” incorporated by reference federal standards for manufactured homes as part of its definition. Such federal standards expressly define and exclude recreational vehicles, and park trailers come within such exclusionary definitions of “recreational vehicles” and “travel trailers.” For the foregoing reasons the trial court corrеctly found that a park trailer, i.e., a travel trailer or recreational vehicle, was excluded from the restrictions on manufactured homes in its declaratory judgment.

Judgment affirmed. Pope, P. J., and Smith, J., concur specially.

POPE, Presiding Judge, concurring specially.

I agree with all that is said in Divisions 1 and 2, but write separately as to Division 3. At issue in this case is whether North Shore is subject to regulation as a manufactured (mobile) home park or whether it should be classified as a “campground.” Resolution of this issue depends on whether “park trailers” should be classified as manufаctured homes under the applicable Greene County regulations. As a practical matter, park trailers seem to fall somewhere between manufactured homes and recreational vehicles in terms of their components. The Greene County regulations do not contain a definition of “park trailers” or “recreational vehicles,” but do define a manufactured home as

a structure transportable in one (1) or more sections, designed to be used for long term occupancy as a single-family dwelling. Such a dwelling shall be constructed in accordance with the Federal Manufactured Home Construction and Safety Standards, which came in to effect June 15, 1976, and shall bear an insignia issued by the U. S. Department of Housing and Urban Development (HUD). . . .

North Shore presented evidence in this case that the “park trailers” located at its facility were not designed or manufactured for long-term occupancy, were not constructed in accordance with Federal Manufactured & Home Construction Standards and did not bear the HUD insignia. North Shore presented additional evidence that the park trailers located at its facility were built to specifications promulgated by the Recreational Park Trailer Industry and that it requires the trailers in its facility to carry a sticker signifying compliance with those standards. Moreover, the park trailers at North Shore‘s facility are registered as recreational vehicles with the Department of Motor Vehicles. Contrary to Greene County‘s argument, the fact that the evidence alsо showed that a park trailer may have many of the same amenities as a manufactured home does not make it one.

I am authorized to state that Judge Smith joins in this special concurrence.

DECIDED MAY 10, 1999 —
RECONSIDERATION DENIED MAY 26, 1999.

Decker & Hallman, David C. Moss, for appellant.

Weinstock & Scavo, Steven M. Winter, Louis R. Cohan, for appellee.

Notes

1
Since the property was purchased in 1988, and the regulations were amended in 1989 and 1990, North Shore could have asserted a vested interest and substantial reliance upon the 1984 regulations so as to be treated as a grandfathered, nonconforming use under later regulations, provided that it made out a factual predicate for such vested right. See ; ; ; .