Polo Golf & Country Club Homeowners Ass'n, Inc. v. Cunard

• Decision Date: 15 February 2021
• Docket Number: S20A1205
• Citation: 854 S.E.2d 732,310 Ga. 804
• Court: Georgia Supreme Court
• Parties: POLO GOLF AND COUNTRY CLUB HOMEOWNERS ASSOCIATION, INC. v. CUNARD et al.

310 Ga. 804

854 S.E.2d 732

POLO GOLF AND COUNTRY CLUB HOMEOWNERS ASSOCIATION, INC.

v.CUNARD et al.

S20A1205

Supreme Court of Georgia.

Decided: February 15, 2021

Lueder, Larkin & Hunter, John T. Lueder, for appellant.

Jarrard & Davis, Kenneth E. Jarrard, Joseph P. Mitchell, for appellees.

Warren, Justice.

The heart of this case is a dispute between the Polo Golf and Country Club Homeowners’ Association (the "HOA") and Forsyth County over the validity of Section 4.2.2 of Forsyth County's Addendum to the Georgia Stormwater Management Manual, an ordinance that makes HOAs "responsible for maintenance of all drainage easements and all stormwater facilities within the entire development." Section 4.2.2 of the Forsyth County Addendum to the Georgia Stormwater Management Manual ("Section 4.2.2" of the "Addendum").¹ The HOA argues that Section 4.2.2 is unconstitutional and otherwise invalid and that individual lot owners are responsible for maintaining stormwater infrastructure on their lots. Variants of this case have been litigated and appealed multiple times in this and other Georgia courts, including a 2019 appeal in this Court. See Polo Golf and Country Club Homeowners Assn., Inc. v. Cunard , 306 Ga. 788, 833 S.E.2d 505 (2019) ( "Polo Golf II" ).²

On remand from our Polo Golf II decision, the trial court evaluated and rejected the HOA's remaining claims that Section 4.2.2 is invalid because it requires the HOA to trespass on the private property of homeowners, constitutes involuntary servitude under the United States and Georgia Constitutions, and exceeds the scope of the ordinance that authorizes Forsyth County to promulgate the Addendum. The trial court thus denied the HOA's motion for summary judgment and granted the defendants’ cross-motion for summary judgment. The HOA appealed, and we now affirm.

1. Background.

(a) Litigation History.

In Polo Golf II , we summarized the following background facts:

[The HOA] is a nonprofit corporation which oversees a housing subdivision in unincorporated Forsyth County called "the Polo Fields."^{[3 ]} The stormwater mechanisms in the subdivision including the Wellington Dam, which shores up a body of water known as the Wellington Lake, are failing due to age. The failure of these various stormwater mechanisms has caused flooding, sinkholes, and other property damage for some individual homeowners. This situation has resulted in almost a decade's worth of litigation, including a previous decision in this Court concerning similar underlying facts and some of the same parties. See Polo Golf and Country Club Homeowners’ Assn., Inc. v. Rymer , 294 Ga. 489, 754 S.E.2d 42 (2014) (" Polo Golf I "). In Polo Golf I , John and Diane Rymer, who were individual homeowners of the Polo Fields, [the HOA], and Forsyth County disagreed as to who was responsible for repairing failing stormwater mechanisms affecting the Rymers’ property pursuant to the 2004 version of Section 4.2.2 set forth in Forsyth County's Addendum to the Georgia Stormwater Management Design Manual....^[4]

In Polo Golf I , [the HOA] contended the 2004 version of Section 4.2.2 was unconstitutional; however, this Court did not reach the constitutional issue in Polo Golf I because we concluded that the provision applied to new developments and redevelopments, but not to already-existing developments such as the Polo Fields. 294 Ga. at 495, 754 S.E.2d 42.

In January 2014, while this Court's decision in Polo Golf I was still pending, Forsyth County enacted a new version of Section 4.2.2 which now states in pertinent part as follows:

When any subdivision or industrial/commercial park, whether new or existing , has a legally created property or homeowners association, the association will be responsible for maintenance of all drainage easements and all stormwater facilities within the entire development. (Emphasis supplied.)

Polo Golf II , 306 Ga. at 789-790, 833 S.E.2d 505 (footnotes omitted). With respect to Section 4.2.2, we concluded:

The 2014 version of Section 4.2.2 states that homeowner associations ("HOAs") are responsible for maintaining all drainage easements and stormwater facilities in their developments. The 2014 version of Section 4.2.2 further provides that the county, in certain circumstances, may direct HOAs to take certain actions (e.g., applying larvicides or making repairs) to comply with their overall responsibility to maintain such systems or otherwise be penalized for noncompliance.

Id. at 792.

With respect to the repairs at issue here, the following facts are also relevant. In August 2017, the HOA's board sent a letter to the owners of lots at or abutting Wellington Dam and Lake informing them that the dam was leaking and "could potentially have a complete failure."⁵ Claiming that Polo Golf's Declaration of Covenants, Restrictions and Easements (the "Declaration") "does not place any obligation upon the [HOA] to maintain or repair the dam," the HOA contended that the lot owners were obligated to maintain and repair all "structures" on their lots under Section 6.14 of the Declaration and that they were obligated to pay the reasonable expenses necessary to maintain the structural integrity of the dam under Section 6.17 (d). The HOA therefore argued that the lot owners were obligated to pay for repair of the dam. But it also gave the lot owners formal notice that "[i]f the dam is not repaired within thirty days, then the [HOA] may exercise the right of abatement."

The lot owners disagreed with the HOA's characterizations of their obligations under the Declaration and disputed that they were obligated to repair the failing dam. Then, in November 2017, the HOA sent a letter to the lot owners disavowing any involvement with the repairs and "fully revok[ing]" the portion of its earlier letter notifying lot owners that it might exercise its right of abatement, while also noting that the HOA could in the future "consider the remedies available to [it], including the right of abatement."

The HOA ultimately sued John Cunard, Director of Forsyth County's Department of Engineering, and Benny Dempsey, Stormwater Division Manager of Forsyth County's Department of Engineering, to prevent prospective enforcement of Section 4.2.2. The trial court granted the defendants’ motion for judgment on the pleadings in part because it concluded that sovereign immunity barred the HOA's suit against the county officials. It also rejected the HOA's arguments that Section 4.2.2 violated the Contracts Clause of the United States Constitution and the Georgia Constitution's prohibition against retroactive laws. In Polo Golf II , we reversed the trial court's determination that sovereign immunity barred the suit against county officials, affirmed the trial court's grant of the defendants’ motion for judgment on the pleadings as to the HOA's arguments on the merits, and remanded the case so the trial court could resolve the HOA's remaining contentions about Section 4.2.2's validity.⁶

As part of our remand in Polo Golf II , we instructed the trial court to address the HOA's remaining arguments that Section 4.2.2 is invalid because, among other things, it (1) requires the HOA to commit an illegal trespass and (2) constitutes involuntary servitude. On remand, the HOA asserted an additional argument that had been raised in earlier briefing: that Section 4.2.2 is invalid because it exceeds the scope of the authority provided in its enabling ordinance. Resolving these issues against the HOA, the trial court denied the HOA's motion for summary judgment in its entirety and granted defendants’ cross-motion for summary judgment.⁷

(b) Relevant Sources of Authority.

In Forsyth County, maintenance obligations for stormwater management systems are set forth, in part, in a county-specific addendum to the Georgia Stormwater Management Manual. The County enacted its Addendum under the authority of Forsyth County Ordinance No. 75 (the "enabling ordinance"), which provides:

The department of engineering shall develop, and update periodically, an addendum to the state stormwater management design manual for the guidance of persons specifically preparing stormwater management reports, and designing or operating stormwater management systems in Forsyth County.

Ordinance No. 75, Section 34-185 (e).

In turn, Section 4.2.2 of the Addendum, which Forsyth County revised in 2014, provides:

When any subdivision or industrial/commercial park, whether new or existing, has a legally created property or homeowners association, the association will be responsible for maintenance of all drainage easements and all stormwater facilities within the entire development.

Polo Golf's Declaration also includes covenants pertaining to maintenance and property upkeep for its development. The Declaration provides that "[e]ach Owner shall keep and maintain each Lot and Structure owned by him ... in good condition and repair" and defines a "structure" as, among other things, "any thing or object that placement of which upon any Lot may affect the appearance of such Lot" including any "temporary or permanent improvement to such Lot." Declaration, §§ 6.14, 1.12 (a). "Structure" is also defined as

any excavation, grading, fill, ditch, diversion dam or other thing or device which affects or alters the natural flow of surface waters from , upon or across any Lot, or which affects or alters the flow of any waters in any natural or artificial creek, stream, wash or drainage channel from, upon or across any Lot.

Id. at 1.12 (b) (emphasis supplied).⁸

The Declaration also contains covenants setting forth maintenance obligations related to Wellington Dam and Lake:

Owners of Lots which abut any such lake agree to pay any reasonable expenses necessary to maintain the structural integrity of the Dam and such other maintenance to the lake as may be agreed upon by the majority of the abutting Lot Owners.

Declaration, § 6.17 (d) (emphasis supplied).

The Declaration authorizes the HOA to implement several enforcement...