City of Buford v. Ward

• Decision Date: 17 March 1994
• Docket Number: A93A2014,Nos. A93A2013,s. A93A2013
• Citation: 443 S.E.2d 279,212 Ga.App. 752
• Parties: CITY OF BUFORD et al. v. WARD. WARD v. CITY OF BUFORD et al.
• Court: Georgia Court of Appeals

Page 279

443 S.E.2d 279

212 Ga.App. 752

CITY OF BUFORD et al. v. WARD.

WARD v. CITY OF BUFORD et al.

Nos. A93A2013, A93A2014.

Court of Appeals of Georgia.

March 17, 1994.

Reconsideration Denied April 1, 1994.

Certiorari Denied July 7, 1994.

Sullivan, Hall, Booth & Smith, Jack G. Slover, Jr., Jeffrey T. Wise, Drew, Eckl & Farnham, T. Bart Gary, Theodore Freeman, Atlanta, Chandler & Britt, Walt M. Britt, Buford, for appellants.

G. Gibson Dean II, Buford, for appellee.

POPE, Chief Judge.

When plaintiff was refused a certificate of occupancy for his new garden center, he sued the City of Buford ("the City"), the City Manager ("Peevy"), the Assistant City Manager ("Garrett"), and three members of the City Board of Commissioners. In Case No. A93A2013, the City, Peevy and Garrett appeal from a judgment entered on a jury verdict against them. In Case No. A93A2014, plaintiff appeals directed verdicts entered for the three commissioners and challenges an evidentiary ruling of the trial court.

Case No. A93A2013

We view the evidence presented at trial in a light favorable to the jury verdict. In late 1988, plaintiff decided to open a garden center business on a particular piece of vacant property. This property was located in the City of Buford, on Highway 324 near its intersection with Highway 20. He contacted the City to find out what he needed to do and was referred to defendant Assistant City Manager Garrett, who administered the City's zoning, planning and licensing/permitting departments as part of his day-to-day duties. Garrett told plaintiff he would need to have a survey and site plan done by an engineer, and plaintiff had this done in May 1989. Several revisions to this site plan were made in response to comments from the City's engineering consultants, and building began in June 1989. In order to get a building permit, plaintiff had to sign a document stating that he understood that he would have to have a plan approved by the State Department of Transportation (DOT) and would have to build a deceleration/acceleration lane along Highway 324 before a certificate of occupancy would be issued. Despite this "letter of understanding," however, the parties continued to dispute just how long the deceleration/acceleration lane needed to be. Plaintiff obtained DOT approval for his plan and eventually built a deceleration/acceleration lane longer than the DOT required, but the City continued to insist that he extend the lane all the way to the intersection of Highways 324 and 20. Between June 1989 and February 1990, the building progressed and the City inspector visited the site numerous times without noting any problems. In February 1990, however, the City informed plaintiff that he would not be issued a certificate of occupancy due to: the inadequacy of the deceleration/acceleration lane; differences between the building as built and as projected on the approved plans, including the placement of parking spaces; the fact that the building was three inches short of the City's side set-back requirement; and the fact that the siltation pond was not functioning properly. Although all these reasons were given, City Manager Peevy testified that the deceleration/acceleration lane dispute was the major problem, and that the others probably could have been worked out. Plaintiff and his lawyer met with Peevy, Garrett and the City's attorney and demanded that the City issue the certificate of occupancy. At that meeting, the City attorney's response to plaintiff's demand was: "We ain't got to do a damn thing. If you don't like it, that's what the courts are for."

Plaintiff did go to court seeking equitable relief and after a hearing on March 22, 1990, obtained a certificate of occupancy. Plaintiff opened his garden center shortly thereafter, but he went out of business the following November and went bankrupt in December 1990. After receiving his discharge in bankruptcy in March 1992, plaintiff pursued this action for damages, alleging that Peevy, Garrett and the commissioners had damaged him by acting oppressively and without authority of law (OCGA § 36-33-4); that the City was liable for damage caused by the improper or unskillful performance of a ministerial duty (OCGA § 36-33-1(b)); and that the City, Peevy, Garrett and the three City commissioners had violated his civil rights (42 USC § 1983). The trial court directed a verdict for the commissioners on all of plaintiff's claims against them, but the jury awarded plaintiff $30,000 on the OCGA § 36-33-4 claim against Peevy and Garrett individually, $100,000 on the OCGA § 36-33-1(b) claim against the City, and $100,000 on the civil rights claim against the City, Peevy and Garrett. The jury also awarded punitive damages of $1,000 against Peevy and $10,000 against Garrett on the civil rights claim, and attorney fees and costs in the amount of $50,000 on the OCGA § 36-33-1(b) claim, for a total of $291,000.

1. Defendants Peevy and Garrett argue that plaintiff failed to prove a cause of action against them under OCGA § 36-33-4. This Code section provides in pertinent part that officers of a municipal corporation "shall be personally liable to one who sustains special damages as the result of any official act of such officers if done oppressively, maliciously, corruptly, or without authority of law."

Peevy and Garrett implemented a City policy under which the issuance of a business's building permit or certificate of occupancy could be conditioned upon the completion of a deceleration/acceleration lane on an adjacent public roadway whenever and to whatever extent Peevy and Garrett (albeit with the advice of the City's engineers) deemed such a lane necessary to facilitate traffic flow. At best, the authority for this policy was a zoning law which purported to incorporate unspecified DOT regulations which discussed generally the use of deceleration/acceleration lanes to facilitate traffic flow. Although it is understandable that the need for such lanes will vary with the circumstances, we note that there is nowhere even a listing of guidelines or factors to be considered in determining whether and to what extent these lanes are needed. Cities may place conditions on the operation of a business enterprise in the exercise of their police powers, but to be valid such conditions must be based on an ordinance "written with sufficient specificity to apprise all parties concerning the ... required conditions" and the conditions "would have to apply uniformly to all persons and firms concerned." City of Hawkinsville v. Wilson & Wilson, Inc., 231 Ga. 110, 111(2), 200 S.E.2d 262 (1973). Because the policy implemented by Peevy and Garrett gave them unfettered discretion and was not based on an ordinance setting forth guidelines or factors for consideration with sufficient specificity to apprise citizens of what to expect, actions taken pursuant to this policy were taken without authority of law. We further note that plaintiff presented evidence of numerous other business enterprises in the City (including one partially owned by defendant Garrett) which had not been required to build deceleration/acceleration lanes, or had been required to build much less extensive ones. Although the City was able to articulate reasons for these differences, there was no way for the public to know these reasons, and these differences in application of the policy demonstrate the problem of unfettered discretion on the part of officials without the benefit of specific written guidelines.

Peevy and Garrett argue that even if their actions were without legal authority, they are not liable under OCGA § 36-33-4 because plaintiff did not sustain special damages. However, plaintiff testified at trial that because of Peevy and Garrett's unauthorized demands, he expended $2,800 to extend his deceleration/acceleration lane beyond the length required for DOT approval. Contrary to defendants' assertion, this was sufficient to show special damages, whether this means individual damages in which the public has not participated, see OCGA § 51-1-7, or actual damages which must be specifically proved, see Kennedy v. Johnson, 205 Ga.App. 220(1), 421 S.E.2d 746 (1992). ¹ Nor can we agree with defendants that the statute limits the municipal officers' liability to actual damages. Furthermore, defendants' reliance on Hawkinsville, supra, to support their assertion that plaintiff cannot recover under this statute because he did not show they acted with malice in the performance of a non-discretionary, ministerial duty is misplaced. See Hawkinsville, 231 Ga. at 111-112(3), 200 S.E.2d 262. The Supreme Court in Hawkinsville discussed malice because malice was alleged, but the statute clearly supports recovery where actions are taken "oppressively, maliciously, corruptly, or without authority of law." OCGA § 36-33-4. (Emphasis supplied.) Moreover, the non-discretionary, ministerial nature of the duty was important in Hawkinsville because the defendants would otherwise have been able to rely on sovereign immunity. In this case, on the other hand, it is undisputed that sovereign immunity has been waived by the purchase of insurance. Accordingly, plaintiff established the necessary elements of a cause of action under OCGA § 36-33-4, and the trial court did not err in denying Peevy and Garrett's motion for j.n.o.v. on this count.

2. Citing Wheeler v. City of Pleasant Grove, 833 F.2d 267 (11th Cir.1987), defendants contend the trial court should have charged the jury that the proper measure of damages under OCGA § 36-33-4 was "the return on the portion of fair market value that is lost as a result of the regulatory restriction." However, Wheeler is a regulatory takings case while a claim under OCGA § 36-33-4 is essentially a tort action in which general as well as compensatory damages may be recovered. Thus, the trial court did not err in rejecting defendants' requested charge.

3. However, the City's argument that plainti...