We granted the application of Benjamin Sinclair Hollberg (“Sinclair”) 1 for discretionary appeal of the order granting summary judgment to Spalding County, Spalding County Board of Commissioners (“Board”), and Wilma A. Hollberg (“Wilma”), to review the trial court’s ruling that Sinclair lacks standing to challenge the approval of a special exception to a local zoning ordinance permitting a residential development on Wilma’s adjoining property. We affirm, but clarify that a devisee of real property may have standing to challenge a zoning decision even though his title is inchoate.
Wilma, who is married to Sinclair’s brother, Douglas, owns 142.98 acres of land contiguous to property currently owned in fee simple by Sinclair. Sinclair’s property, which includes a 20-acre tract and a 92-аcre tract, is known as “Double Cabins Plantation” and has been in the Hollberg family since 1839. The home place was built in 1842 and is listed in the National Register of Historic Places. In 1994, Sinclair’s mother, Emma Walker Hollberg, began operating a bed and breakfast in the main house on the smaller tract. Guests of the bed and breakfast observed the wildlife and hunted deer and turkey on the plantation.
Emma died on September 30, 2003, having devised a life estate in the 20-acre tract to Sinclair with the remainder to Sinclair’s son. Emma devised the 92-acre tract jointly to Sinclair and a second brother, Jerry Hollberg. Sinclair and Jerry were named co-executors of Emma’s estate, but disputes arose, and an administrator was appointed to
Wilma purchased her property in 1998, and it is unrelated to the estate. On February 3, 2004, Wilma entered into an agreement to sell her acreage to developer/defendant Next Generation Properties, LLC, with the sale being contingent upon rezoning of the parcel from AR-1 (agricultural and residential) to R-4 (single-family residential). 2 Next Generation, acting as Wilma’s agent, then filed two applications with the County: an application to rezone the property to R-4 and an application for a special exception to allоw one-acre lots in the R-4 district. The county planning commission held a hearing on March 30, 2004. Sinclair was present and voiced objections, citing adverse environmental and quality of living consequences. The planning commission recommended approval of the rezoning application, with certain conditions. The Board then held a hearing on April 22, 2004, at which Sinclair again objeсted, and unanimously approved rezoning Wilma’s property, but to classification R-2 with conditions, instead of R-4 as requested. 3 Next Generation had proposed developing a residential subdivision on the 143 acres with 95 minimum one-acre lots, with the remainder dedicated to green space and buffers, but no action was taken on the special exception. The County adopted a resolution amending the local zoning ordinance and official county zoning map to reflect the change from R-4 to R-2. Sinclair did not appeal the County’s action.
The hearing on the application for the special exception was held before the Board on September 23, 2004. Noting that the property already had been rezoned to R-2 with conditions, the Board аpproved the application on a 3-2 vote, with several conditions, including minimal disturbance of the land, with no clear-cutting permitted.
On October 25,2004, Sinclair filed in superior court a petition for a writ of certiorari or, in the alternative, a complaint for declaratory judgment, naming the County and Next Generation as defendants and the Board as respondent. The petition allеged four counts. In Count 1, Sinclair sought review of the Board’s grant of the special exception, alleging, inter alia, that it was void because it was based upon a rezoning decision issued pursuant to the local ordinance governing amendments to the official zoning map, 4 which, Sinclair argued, was void because it contained no standards governing the exercise of zoning power, as required by OCGA § 36-66-5 (b). The remaining counts requested that the ordinance, the Board’s April 22, 2004, approval of the rezoning request, and the Board’s grant of the special exception be declared null and void. The County and the Board filed an answer. The trial court granted Wilma’s motion to intervene as a defendant, and she filed an answer. Next Generation did not file an answer, and the court granted dеfault judgment against it.
Following discovery, the remaining parties filed cross-motions for summary judgment. At the hearing held on the motions, Sinclair
conceded that he had not timely appealed the Board’s April 22, 2004, rezoning decision pursuant to Section 418 of the UDO, which states: “If the [Board] takes an action which the developer or other aggrieved party believes to be contrary to law, that action may be appealed to the Spalding County Superior Court. Such an appeal must be filed within thirty (30) days of the date on which the action of the [Board] was taken.” The parties addressed the issue of whether Sinclair had standing to challenge the special exception
Based on the evidence tendered in support of each motion for summary judgment and the argument of counsel at the hearing, thе trial court granted the motions filed by the County and the Board and by Wilma (hereinafter, “appellees”) and denied Sinclair’s motion. Specifically, the court found that Sinclair had appealed from the Board’s decision to approve the special exception; that Sinclair had not demonstrated compliance with the substantial interest-aggrieved citizen test, so that hе lacked standing to challenge the Board’s approval of the special exception; and that Sinclair had not shown that the ordinance and procedures used by the County to exercise its zoning power violated the Zoning Procedures Law (ZPL), OCGA § 36-66-1 et seq. This discretionary appeal followed.
1. (a) Declaratory judgment. As noted above, it is undisputed that Sinclair failed to appeal the Board’s rezoning of Wilma’s property from AR-1 to R-2 within 30 days of that action, as required by Section 418 of the UDO. Sinclair nevertheless argues that he has standing to seek a declaratory judgment to challenge the rezoning. Pretermitting whether he has waived this argument by failing to obtain a ruling thereon, 6 this contention is meritless.
“In order to obtain a declaratory judgment, a plaintiff must show that he is in a position of uncertainty or insecurity because оf a dispute and of having to take some future action which is properly incident to his alleged right, and which future action without direction from the court might reasonably jeopardize his interest.” 7 Sinclair argues that he is in a position of uncertainty as to whether the zoning of Wilma’s property is AR-1 or R-2. But there is no uncertainty about the zoning classification. The Board rezoned the property by а unanimous vote on April 22, 2004, and the decision was not timely appealed by any party. Sinclair may not avoid the requirement of filing a timely appeal by seeking a declaration of rights that already have accrued.
Moreover,
Head v. DeKalb County,
8
upon which Sinclair relies, does not support his position. In that case, the process by which a rezoning was accomplished was called into question due to the composition of the DeKalb County Board of Commissioners (“BOC”), with the county attorney ultimately declaring that the BOC had approved the rezoning at issue.
9
Adjoining property owners filed suit, seeking a declaratory judgment that the effect of the BOC’s vote had been to deny, rather than approve, the rezoning.
10
The trial court granted summary judgment to the owner of the rezoned property, hоlding that the suit was an appeal of a rezoning action and, as such, was time-barred because it was filed more than 30 days after the decision.
11
This Court reversed, holding that the suit was a proper declaratory judgment action because the plaintiffs were not appealing the BOC’s decision or seeking to reverse it. Rather, they were seeking a declaration
(b) Compliance with the ZPL. In his second enumerated error, Sinclair argues that the Board’s April 22, 2004, rezoning decision is invalid becausе Section 414 of the UDO fails to comply with the ZPL. This argument fails because it is time barred, as any challenge to the rezoning was required to be raised within 30 days. Furthermore, the trial court erred to the extent it considered this argument. Finally, we are not persuaded by Sinclair’s argument that, under the circumstances presented in this case, Georgia law permits a party to challenge the rezoning of a tract of land “long after” the action has taken place. The cases he cites for this proposition are inapposite because they concern circumstances which are not alleged to have occurred in the instant case and, further, because they do not address the timeliness of the petitioner’s complaint in superior court. 14 Accordingly, we сonsider only those arguments that concern the grant of the special exception.
2. Sinclair argues that the trial court erred in determining that he lacked standing to challenge the Board’s approval of the special exception pursuant to the substantial interest-aggrieved citizen test. The trial court’s determination regarding standing will not be reversed unless it is clearly erroneous, 15 although any question of law inherent therein is subject to de novo review. 16
(a) Substantial interest. The first prong of the standing test requires that the neighbor have a “substantial interest” in the zoning decision. 17 At the motions hearing, the appellees argued that Sinclair did not have standing to challenge the special exception because he did not hold title to the plantation at the time the exception wаs granted to Wilma. Sinclair argued that he had a “substantial interest” by virtue of being a devisee in his mother’s will. 18 The trial court seemingly agreed with Sinclair on this prong of the test, although that ruling is not reflected in the court’s order.
Whether a devisee of real property has a substantial interest in a zoning decision so as to satisfy the first prong of the test is a matter of first impression in this state. We look to probate rules for guidance. “In the testamentary disposition of realty, upon the death of the owner of realty, the devisees have an inchoate title in the realty which
is perfected when the executor assents to the devise.”
19
Such assent “relates back
Appellees contend that the administrator of Emma’s estate, as legal title holder to the devised property at the time suit was filed, was the proper party to bring the action. 23 Appellees, however, have waived this contention because they did not move to dismiss the action on this ground, and “[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest.” 24
(b) Special damages. To satisfy the second prong of the standing test, the adjoining property owner must show “that his property will suffer special damage as a result of the decision complained of rather than merely some damage which is common to all property owners similarly situated.” 25 “ ‘[Similarly situated’... refer[s] to persons in the general community who may merely suffer inconvenience and exclude [s] those рersons who stand to suffer damage or injury to their property which derogates from their reasonable use and enjoyment of it.” 26 Thus, in Brand v. Wilson, 27 expert testimony that an adjoining landowner would suffer a 15 to 20 percent decrease in the value of his property was deemed “sufficient evidence upon which a trial court might find substantial damage to a substantial interest.” 28 Testimony that the value of neighboring рroperties would be reduced, in addition to evidence of additional damages in the form of noise, odor, and visual intrusions on peace and privacy, were held to meet the special damage requirement in DeKalb County v. Wapensky 29 But “[m]ere allegations of speculative or contingent injuries” will not establish standing. 30 At least one case has held that a decrease in value of property is nоt required as a prerequisite for standing. 31
At the motions hearing, however, Sinclair’s counsel represented that Sinclair no longer derived income from the bed and breakfast or from persons desiring to hunt on the plantation, and that his property values had actually increased since the grant of the special exception. Admissions of fact, “made by a party’s counsel during a hearing or trial [,] are regarded as admissions in judicio and are binding on the party.” 32 Furthermore, the evidence of record demonstrates such increase in vаlue. Sinclair’s property was appraised on September 15, 2004, for $7,000 per acre. The special exception was granted eight days later. On March 26,2005, immediately after receiving title to the estate property, Sinclair entered into an agreement with a real estate broker to sell 24 acres for $570,000, or $23,750 per acre, although the property was marketed for $22,000 рer acre. The broker deposed that this price was reasonable. Given the expert testimony that the value of the land had appreciated considerably since the date the special exception was granted, we find no error in the trial court’s ruling that Sinclair failed to meet his burden of proving standing to challenge the special exception.
3. The County’s motion to strike Sinclair’s reply to the County’s brief is denied.
Judgment affirmed.
Notes
All Hollberg parties are referred to by their first or middle names to avoid confusion.
AR-1 requires three-acre lots outside of a “conservation” subdivision but permits two-acre lots within such subdivision. R-4 zoning requires two-acre lots, unless a special exception permitting one-acre lots is approved.
Excerpts of R-2 zoning requirements that have bеen included in the record are incomplete; those pertaining to lot size are omitted. However, it appears from testimony at the hearing on the special exception before the county board of zoning appeals that lots in the R-2 district must be a minimum of two acres.
Section 414 of the County Unified Development Ordinance (“UDO”).
(Citation omitted.)
DeKalb County v. Wapensky,
The trial court ruled from the bench that it was dеnying the petition for declaratory judgment because the County had not violated the ZPL. The court did not rule upon the precise argument raised herein. See
Blakely & Son, Ltd. v. Humphreys,
(Punctuation and footnote omitted.)
Head v. DeKalb County,
Id.
Id. at 757.
Id. at 758.
Id. at 759 (1).
Id.
See Section 418 of the UDO; OCGA § 5-3-20; see also
Jackson v. Spalding County,
Tilley Properties v. Bartow County,
City of Marietta v. Traton Corp.,
See generally
Northside Corp. v. City of Atlanta,
Wapensky, supra; Brand, supra.
As for relevant dates, Sinclair’s mother, Emma, died in 2003, the Board approved the special exception on September 23, 2004, Sinclair filed suit on Octоber 25, 2004, and Emma’s estate settled in March or April 2005.
(Citations and punctuation omitted.)
Williams v. Williams,
(Citation omitted.)
Allan v. Allan,
(Citations omitted.) Id.
See generally
Searcy v. Searcy,
See generally OCGA§ 53-8-15 (a).
OCGA § 9-11-17 (a).
(Citation and punctuation omitted.) Brand, supra.
(Citation omitted.) Wapensky, supra.
Supra.
Id. See also
Moore v. Maloney,
Supra at 49 (1).
(Citation omitted.)
City of Columbus v. Diaz-Verson,
AT & T Wireless PCS v. Leaf more Forest Condo. Assn.,
(Citations and footnotes omitted.)
In re McCool,