This is an appeal from the superior court’s application of laches to bar plaintiff Hall from injunctive and other relief in this dispute between adjacent landowners over the construction and placement of two manufactured homes on land in Putnam County. See OCGA §§ 9-3-3; 23-1-25. The cross-appeal is defendant Trubey’s challenge to the denial of a motion to dismiss for failure to join Putnam County as an indispensable party to
Hall owned Lot 8 in a subdivision in Putnam County, which she leased to her family-owned cable television business. In the summer of 1995, Trubey began preparations to purchase adjacent Lot 7. Both Lots 7 and 8 were zoned for commercial use. 1 In August 1995, Trubey negotiated for the purchase of two double-wide mobile homes, which she intended to place on Lot 7 and to lease as residences. 2 Also in August 1995, Trubey applied for and received various building and construction permits. Trubey purchased Lot 7 in September 1995. She then transferred her interest in the real estate to a trust, but retained the authority to develop and control the property.
In the fall of 1995, Hall discovered Trubey’s intended use of Lot 7 and began to voice objections. Hall’s business required constant use of trucks and heavy equipment, and Hall was concerned that the proposed residential development next to her business would pose security and safety risks from people coming onto her property. Hall contacted her attorney, who shortly thereafter telephoned the attorney for Putnam County and expressed Hall’s concerns about Trubey’s plan for Lot 7. On October 20, 1995, Hall’s counsel wrote to the county attorney again protesting Trubey’s proposed use of the property as violative of subdivision requirements and zoning ordinances, and submitting that Trubey’s attempt to create a multiple residential use lot would require a hearing before the planning commission. A copy of the letter was forwarded to Trubey’s counsel. At the time of this correspondence, Trubey had made no significant improvements to Lot 7. Over the next few months, Hall continued to make her objection known to Trubey, at one point offering to purchase Trubey’s property. Trubey was issued an on-site building inspection permit in November 1995.
Hall expended in excess of $10,000 for fencing and lighting on her business property out of concern about impact from the development of Trubey’s lot, and on February 19, 1996, Hall’s counsel telephoned Trubey’s attorney to inform him that Hall intended to file a complaint seeking a temporary restraining order. Trubey’s attorney was going on vacation and indicated that he would like to be at the hearing. Hall’s counsel waited ten days to file the complaint, explaining that he did so out of professional courtesy.
The hearing on the temporary restraining order was held on March 1, 1996. As of that date, payment had not been made for the two mobile homes and title to them had not passed to Trubey or to the trust which owned the real estate. At the close of the hearing, the superior court declined to issue a temporary restraining order; however, the court expressly cautioned Trubey that the case was not decided and that Trubey would be proceeding at her own risk. Trubey then filed numerous motions, including the unsuccessful motion to dismiss for non-joinder. Following a final hearing in the matter on January 23, 1997, the superior court declined to enjoin Trubey from further proceeding with the development of Lot 7 based on its findings that Trubey had complied with all the administrative requirements for application and receipt of necessary permits and that the action was not filed until essentially all of the lot preparation and construction work had been completed and Trubey had expended approximately $70,000 on the project. 3 The court concluded that it would be “inequitable” and “unjustly disruptive” to grant the relief sought by Hall.
Here, a consideration of the circumstances compels the conclusion that the superior court abused its discretion in applying the doctrine of laches to bar Hall’s claims.
Mountain Manor Co. v. Greenoe,
Trubey urges that evidence of the condition of the property has been lost due to the fact that Hall waited until after the lot had been cleared and the homes were in place. However, the record does not demonstrate that the delay in filing suit resulted in the loss of evidence on any
disputed
matter. Trubey also points to the facts that she sought the advice of county officials and received various permits from the county prior to Hall’s instituting legal action, and that by the time this action was instituted, Trubey had nearly completed the construction of her two homes and had incurred over $70,000 in expenses. However, the county’s initial sanction did not necessarily establish the validity of Trubey’s development nor raise an estoppel to its challenge.
Matheson v. DeKalb County,
2. In determining if a party is indispensable, it is essential to consider whether relief can be afforded the plaintiff without the presence of the other party, and whether the case can be decided on its merits without prejudicing the rights of the other party.
Pickett v. Paine,
Judgment affirmed in Case No. S97X1619 and reversed in Case No. S97A1618.
Notes
The lots were designated C-l under the Putnam County Zoning Ordinance.
Lot 7 already contained a wooden structure which Trubey also planned to lease as a residence.
Hall maintains that Trubey had not yet begun to clear the lot or to install the manufactured homes until after the February Í9 conversation between counsel at which time Trubey became aware that legal action was imminent; however, the record is unclear on this point.