RABUN COUNTY v. MOUNTAIN CREEK ESTATES, LLC (two cases)
S06A0042, S06A0043
Supreme Court of Georgia
JULY 6, 2006
RECONSIDERATION DENIED JULY 28, 2006
280 Ga. 855 | 632 SE2d 140
MELTON, Justice.
I am authorized to state that Justice Hines and Justice Melton join in this dissent.
DECIDED JULY 6, 2006 —
RECONSIDERATION DENIED JULY 28, 2006.
Vansant & Corriere, Alfred N. Corriere, for appellant.
Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Reagan W. Dean, Claude M. Sitton, Assistant Attorneys General, Finley & Buckley, Timothy J. Buckley III, Kelly R. Castellow, for appellees.
MELTON, Justice.
After Rabun County refused to accept ownership of the roads in a subdivision that Mountain Creek Estates, LLC, had developed, Mountain Creek filed this action, claiming that the County‘s refusal was improper under the Rabun County Zoning Ordinance and Subdivision Regulations. Mountain Creek sought both monetary damages and mandamus relief in the form of an order requiring the County to accept ownership of the roads. In its defense, the County contended that it was not obligated to accept the roads because they did not comply with specifications for shoulder width set forth in the Ordinance.
On February 23, 2005, a jury returned a verdict specifically finding that Mountain Creek had complied with the county‘s subdivision requirements in the construction of its roads and that the county had unreasonably withheld approval of the roads. The jury awarded $472,280 in favor of Mountain Creek based on its claim of inverse condemnation. The trial court also granted mandamus relief, ordering the county to accept ownership of Mountain Creek‘s roads. On April 6, 2005, the trial court awarded Mountain Creek $15,000 in attorney fees under
1. The County contends that, because Mountain Creek failed to properly set forth a claim for inverse condemnation, it was entitled to sovereign immunity from Mountain Creek‘s claim for damages. We agree.
This case revolves around Mountain Creek‘s contention that the County abused its discretion by refusing to accept roads on its property in accordance with a county ordinance. This is an archetypal mandamus claim, to which that area of the law is uniquely suited and was properly applied in this matter. On the other hand, Mountain Creek‘s contention about the roads it constructed is the opposite of a true claim for inverse condemnation. Mountain Creek‘s argument rests not on an act of commission resulting in a taking based on the diminishment of functionality of its land, but on an act of omission resulting in a failure to take or a “no-taking” which had no effect on functionality. As a result, no viable claim for inverse condemnation was raised in this case, and the County was entitled to sovereign immunity from Mountain Creek‘s claims for damages.
This Court has carefully delineated the extent to which a county may waive sovereign immunity in an inverse condemnation action. This limited waiver is based on the takings clause of the Georgia Constitution, which states that “private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.”
[p]rivate property owners may be compensated in inverse condemnation actions for the temporary taking of land for the paving of a turn lane, Dept. of Transp. v. Edwards, 267 Ga. 733, 736 (482 SE2d 260) (1997), increased noise and odor from a county‘s sewage plant, Duffield v. DeKalb County, 242 Ga. 432, 433-434 (249 SE2d 235) (1978), and flooding, siltation, and pollution from surface water diverted by roadway maintenance. Powell v. Ledbetter Bros., 251 Ga. 649, 650 (307 SE2d 663) (1983).
Columbia County v. Doolittle, 270 Ga. 490, 492 (1) (512 SE2d 236) (1999).
In Duffield, supra, 242 Ga. at 433-434 (2), we considered what the term “property” encompasses in our takings clause:
The term property comprehends not only the thing possessed, but also, in strict legal parlance, [m]eans the rights of the owner in relation to land or a thing; the [r]ight of a person to possess, use, enjoy and dispose of it, and the corresponding right to exclude others from the use. There-fore, no physical invasion damaging to the property need be shown; only an unlawful interference with the right of the owner to enjoy his possession.
In the present case, Mountain Creek contends that the County has inversely condemned its property by refusing to accept roads Mountain Creek chose to construct within its subdivision. This contention fails to comprise a viable claim for inverse condemnation for a number of reasons. First, Mountain Creek‘s claim regards not a taking of property, but a refusal to take property. While such a claim raises mandamus issues, it does not trigger concepts of inverse condemnation. Second, irrespective of whether there has been any physical invasion, the County‘s inaction has created neither a nuisance nor a trespass upon Mountain Creek‘s property. Third, as a result, the County‘s inaction has not caused diminished utility or functionality of Mountain Creek‘s property, although the value of the property might be higher if it did have county-maintained roads. Mountain Creek‘s ability to use and enjoy the property remains exactly the same as the day that the property was purchased, at which time the property had no county-maintained roads. Mountain Creek remains free to use the property in any legal manner it wishes without encumbrance. Therefore, it cannot be said that the County has inversely condemned Mountain Creek‘s property, and, as a result, the County was entitled to sovereign immunity against Mountain Creek‘s claim for damages.1
Finally, it must be remembered that the writ of mandamus is an extraordinary remedy available in limited circumstances to compel action by a public officer when there is no other adequate legal remedy.
In reviewing the County‘s contention that the trial court erred in denying its motion for directed verdict, we must affirm if there is any evidence to support the jury‘s verdict, and in making this determination, we must construe the evidence in the light most favorable to the prevailing party. See Ga. Power Co. v. Irvin, 267 Ga. 760, 762 (482 SE2d 362) (1997). Construed in this light, there is some evidence that the subdivision roads met the Ordinance‘s requirements for shoulders. Charles Bingham, who built Mountain Creek‘s roads, testified that ninety-five percent of the subdivision roads had shoulders wider than two feet and that the other five percent had one-foot wide shoulders. He also added that, where the shoulders are one-foot wide, the asphalt is twenty-feet wide. Moreover, Lewis Canup, the County‘s expert, acknowledged that the County ordinance required the subdivision roads to be only eighteen-feet wide; that Mountain Creek‘s roads were twenty-feet wide; that the extra foot of paving on each side served the purpose of a shoulder; and that a foot of the paving on each side of the road could be counted as a shoulder if Mountain Creek would put a stripe on each side of the road. Canup acknowledged, however, that the County ordinance did not require striping on any subdivision roads. Canup also acknowledged that a “good portion” of the problems about which he testified occurred after a hurricane came through the area and that such problems were not “abnormal” after a hurricane. In addition, in September 2003, a county road department foreman signed a “Road Approval Certification” form stating that he had inspected Mountain Creek‘s roads and that the “roads have been built in compliance with the county road specifications and are approved for subdivision approval.”4
3. The County contends that requiring the County to accept the subdivision roads violates the Georgia Constitution‘s prohibition against a government granting gratuities.5 However, this Court has adopted the “ordinary definition of ‘gratuity’ as ‘something given freely or without recompense; a gift.‘” Garden Club of Ga. v. Shackelford, 266 Ga. 24, 24 (463 SE2d 470) (1995). Here, because Mountain Creek expended hundreds of thousands of dollars to build the roads in question, and because the evidence, even when viewed favorably to the County, shows that the problems raised by the County concerning shoulders occur at only certain locations in the two-mile road system, we conclude that the County‘s acceptance of the roads does not amount to an illegal gratuity. Moreover, contrary to the County‘s contention,
The County argues that, because Canup testified that Mountain Creek‘s roads have certain problems, they are not “adequate for public road purposes” and do not “serve the best interests of the public” within the meaning of
In any event, we conclude that where, as here, the County has set standards for the acceptance of subdivision roads as county roads and where, as here, the subdivision roads are found to meet those standards, the subdivision roads are adequate for public road purposes and serve the best interest of the public.
4. For the foregoing reasons, in Case No. S06A0042, we affirm the grant of mandamus relief and reverse the award of damages.
Case No. S06A0043
5. The trial court awarded Mountain Creek $15,000 in attorney fees under
On appeal, the County contends that the trial court‘s finding that the County relied on the Canup memo as a defense at trial is not supported by the record. Our review of the record, however, shows
Judgment affirmed in part and reversed in part in Case No. S06A0042. All the Justices concur, except Sears, C. J., Hunstein, P. J., and Hines, J., who concur in part and dissent in part. Judgment affirmed in Case No. S06A0043. All the Justices concur.
SEARS, Chief Justice, concurring in part and dissenting in part.
I agree with the majority to the extent it affirms the grant of mandamus relief and the award of attorney fees to Mountain Creek Estates (“Mountain Creek“). However, for the reasons that follow, I dissent to the majority‘s holding that Mountain Creek was not entitled to damages.
1. The majority reverses the jury‘s award of damages to Mountain Creek on the ground that Mountain Creek failed to assert a viable claim for inverse condemnation. I disagree with this conclusion.
(a) Contrary to the majority‘s ruling, the jury‘s award of damages for inverse condemnation is consistent with our holding in Duffield v. DeKalb County.7 In that case, we held that if a government interferes with an owner‘s right to enjoy his property, the owner can assert a claim for inverse condemnation. We defined property as the “rights of the owner in relation to land,” including the “right of a person to possess, use, enjoy and dispose of it.”8
An examination of the evidence and the jury‘s findings clearly demonstrates how Rabun County‘s actions in this case interfered
The majority‘s assertion that Rabun County has done nothing with regard to Mountain Creek‘s property and has simply maintained the original condition of Mountain Creek‘s roads as private roads puts form over substance. The ordinance did not give Rabun County the right to maintain the status quo, and its violation of its duty to accept the roads harmed Mountain Creek. Moreover, in the nuisance cases on which the majority relies, there was no “taking” of property for a public purpose that caused a nuisance. There was an existing public use, such as a sewer system,10 that, over time, became a nuisance, interfering with the property owner‘s right to use and enjoy his land.11 Here, as outlined above, Rabun County has interfered with Mountain Creek‘s right to use and enjoy its land, and Mountain Creek should be, as were the plaintiffs in the nuisance cases, permitted to recover damages.
(b) Moreover, Mountain Creek‘s claim for inverse condemnation was valid under a regulatory takings analysis. In this regard, courts have held that a claim for inverse condemnation may be presented even when, as in the present case, a property owner is not denied all economically viable use of his property by a government regulation.
Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation‘s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action.12
This Court has recognized the validity of the Palazzolo analysis,13 and relying on that analysis, some courts have engaged in case-specific inquiries regarding whether a claim for inverse condemnation is presented.14 For instance, in Alaska, the courts consider “four factors: (1) the character of the governmental action; (2) its economic impact; (3) its interference with reasonable investment-backed expectations; and (4) the legitimacy of the interest advanced by the regulation or land-use decision.”15
Balancing factors such as those noted in the foregoing cases, I conclude that Mountain Creek has a valid claim for inverse condemnation. First, a government frequently will have an important interest underlying its regulation, such as the protection of environmentally sensitive lands. Here, no such overarching interest is present. In fact, based on the jury‘s finding, which is supported by the record, that Mountain Creek complied with the county‘s requirements for building subdivision roads, the county had no legitimate governmental interest in refusing to accept the roads. In my view, this factor weighs significantly in favor of finding in favor of Mountain Creek. Moreover, the county‘s decision not to accept the roads has had a significant economic impact on Mountain Creek, a small developer, and Mountain Creek certainly had reasonable investment-backed expectations that if it complied with the county‘s ordinance, the county would accept the roads.
In addition to the foregoing theory, in City of Monterey v. Del Monte Dunes,16 a case in which the City of Monterey repeatedly rejected the reasonable development plans of a developer, the Court recognized that a viable inverse condemnation claim was presented if the city‘s decisions to deny the developer‘s plans did not bear a reasonable relationship to the city‘s proffered justifications.17 In this
In the present case, because the record supports the jury‘s findings that Mountain Creek‘s roads complied with Rabun County‘s ordinance and that Rabun County unreasonably withheld approval of the roads, I would find that the county‘s refusal to accept Mountain Creek‘s roads did not bear a reasonable relationship to the city‘s proffered justifications for that refusal, and that Mountain Creek therefore asserted a valid claim of inverse condemnation.
(c) Finally, Mountain Creek‘s claim for damages for inverse condemnation is not defeated by the availability of mandamus relief. This Court has repeatedly permitted a property owner to recover damages for past harm to his property, as well as extraordinary relief, such as mandamus relief or injunctive relief, to prevent future harm.19 Similarly, here, Mountain Creek should be entitled to damages for the harm caused to it before trial, and should be entitled to mandamus relief to prevent a future harm, as mandamus relief is the superior remedy to future damages.
2. For the foregoing reasons, in Case No. S06A0042, I dissent to the part of the majority opinion reversing the jury‘s award of damages to Mountain Creek, but I join the majority to the extent it affirms the award of mandamus relief. In Case No. S06A0043, I join the majority‘s affirmance of the award of attorney fees to Mountain Creek.
I am authorized to state that Presiding Justice Hunstein and Justice Hines join in this concurrence in part and dissent in part.
DECIDED JULY 6, 2006 —
RECONSIDERATION DENIED JULY 28, 2006.
O‘Quinn & Cronin, Donald A. Cronin, Jr., for appellant.
Cummings & Dillard, Michael H. Cummings II, Alston & Bird, T. Michael Tennant, A. McCampbell Gibson, Christina H. Eikhoff, Paul J. Kaplan, for appellee.