City of Holly Springs v. Cherokee County

• Decision Date: 10 July 2009
• Docket Number: No. A09A0369.,No. A09A0270.,A09A0270.,A09A0369.
• Citation: City of Holly Springs v. Cherokee County, 682 S.E.2d 644, 299 Ga. App. 451 (Ga. App. 2009)
• Parties: CITY OF HOLLY SPRINGS v. CHEROKEE COUNTY. Cherokee County v. City of Holly Springs.
• Court: Georgia Court of Appeals

682 S.E.2d 644

299 Ga. App. 451

CITY OF HOLLY SPRINGS v. CHEROKEE COUNTY.

Cherokee County v. City of Holly Springs.

No. A09A0270.

No. A09A0369.

Court of Appeals of Georgia.

July 10, 2009.

Reconsideration Denied July 30, 2009.

Certiorari Denied November 9, 2009.

Dyer & Rusbridge, Robert M. Dyer, Samuel J. Rusbridge, Canton, Alicia M. Argo, for appellant.

Jarrard & Davis, Angela E. Davis, Cumming, Paul J. Dzikowski, Lawrenceville, for appellee.

SMITH, Presiding Judge.

These related appeals concern past and proposed property annexations by the City of Holly Springs.¹ In Case No. A09A0270, the City of Holly Springs appeals the trial court's grant of Cherokee County's motion for summary judgment and denial of the city's motion for summary judgment. In Case No. A09A0369, the county appeals the trial court's decision that a 1988 property annexation by the city was permitted by the relevant annexation statutes and therefore was not ultra vires and void as a matter of law. Because the trial court correctly concluded that the city had the statutory authority to annex, we affirm in Case No. A09A0369. In Case No. A09A0270, the trial court concluded that, even if the city had the power to annex, it had failed to complete the annexation according to the statutory procedure. It concluded that the city therefore could not assert a claim of estoppel against the county for failing to challenge the 1988 annexation in a timely fashion. This conclusion on the part of the trial court was error, and we therefore affirmed in part and reverse in part in Case No. A09A0270.

The relevant facts are not in dispute. In 1988, the city requested by letter that the county consider the annexation by the city of portions of Sixes Road and Marble Quarry Road "at your earliest convenience." The county's sole commissioner approved the annexation on April 26, 1988, and the approval was entered on the city council's minutes on May 16, 1988. It does not appear that the annexation was memorialized in an ordinance at that time, surveyed, or filed with the Secretary of State. It is undisputed, however, that both the city and the county took various actions consistent with the annexation of the roadways and inconsistent with continued county control.

The city established speed limits on Sixes Road and Marble Quarry Road with the knowledge and approval of the county engineer. City police officers have patrolled those roads and issued traffic tickets on those roads since 1988. The city received permits from the Georgia Department of Public Safety to use speed detection devices on those roads. The city has also maintained the roadways, including a major repaving project. In discussions with the county engineer, the city agreed to set the speed limit for a portion of Sixes Road and to pay for various costs connected with the roadways, including street lighting and traffic signals. The county's official maps, including the street map, future growth boundaries map, and zoning map, show the roadways as part of the city. In addition, in 2003 the city and county entered into a "Growth Boundary Resolution" acknowledging the existing city limits. The city planner testified that the map attached to that resolution included Sixes Road and Marble Quarry Road as part of the city boundary, and he attached to his affidavit the relevant enlarged portion of the map.

Between 1988 and 2007, the city annexed various parcels of land along the roadways, including one annexation that took place after the filing of this action. So far as appears from the record, any defect in the 1988 annexation was never raised by the county during that time. In 1997, the city retrospectively enacted an ordinance annexing Sixes Road and Marble Quarry Road along with five other roadways. Again, it does not appear from the record that the county raised any objection.

In May 2007, however, after the city notified the county of several additional annexation requests, the county objected to proposed rezoning and raised the issue of lack of contiguity with the existing city boundaries. The county then filed this action seeking declaratory judgment, a temporary restraining order, and injunctive relief against the city, asserting that the 1988 annexation of Sixes Road and Marble Quarry Road had been improper. Cross-motions for summary judgment were filed.

In a lengthy order, the trial court determined that the 1988 annexation was substantively authorized by the terms of the statute itself, and thus not ultra vires and void as a matter of law. It further concluded that the county by its inaction for 20 years was estopped to raise any objection that the 1988 annexation itself was improper. It then ruled, however, that the city had failed to comply with the procedural requirements of the relevant Code section and that its attempted annexation of the property therefore was invalid, ultra vires, and void. Because of this procedural defect, the trial court concluded that the city could not assert a claim of estoppel against the county with respect to the 1988 annexation. The trial court granted the county's motion for summary judgment and denied the city's cross-motion, while observing, "Since the Court has seen that this decision will likely receive appellate review, a clear answer to these questions will be welcomed." This appeal followed.

1. We agree with the trial court that the county was estopped by its failure to act in a timely fashion to oppose the 1988 annexation. Since 1988, the city has maintained the roadways in question, including a complete repaving of Marble Quarry Road, with the knowledge and approval of the county. It has patrolled the roads, set speed limits, and otherwise exercised control over the roadways. Moreover, numerous parcels of property have been annexed in the intervening time period. And the county not only approved the annexation in 1988; it has maintained its zoning and planning maps showing the property in question as part of the city.

Estoppel may be used to prevent a party from denying at the time of litigation a representation that was made by that party and accepted and reasonably acted upon by another party with detrimental results to the party that acted thereon. The doctrines of estoppel are primarily negative in their operation against the party making the statement or admission, rather than creative of any new rights in the opposite party.

(Citation and punctuation omitted.) Wilson v. Keheley & Co., 177 Ga.App. 769, 770(2), 341 S.E.2d 245 (1986). See also Smith v. Direct Media Corp., 247 Ga.App. 771, 773(1), 544 S.E.2d 762 (2001). While the question of estoppel "is generally a question for the fact finder to resolve [cit.]," id., in this case the facts supporting estoppel are not disputed by the county, which relies instead on its assertion that the 1988 annexation was ultra vires and void, thus forbidding the application of the principle of estoppel under OCGA § 45-6-5.

In the case of public officers, however, a claim of estoppel as to their past acts may only be asserted in certain circumstances.

It is true that the powers of all public officers are defined by law, and all persons must take notice thereof; and the public can not be estopped by the acts of any officer done in the exercise of a power not conferred. OCGA § 45-6-5. But the converse of this proposition is equally true, that the public can be, and will be, estopped by the acts of any public officer done in the exercise of a power which is expressly conferred by law.

(Citation and punctuation omitted; emphasis in original.) Quillian v. Employees' Retirement System of Ga., 259 Ga. 253, 254(3)(a), 379 S.E.2d 515 (1989). We must therefore first consider whether the 1988 annexation was made in the exercise of an expressly conferred power and thus subject to the principle of estoppel.

Case No. A09A0369

2. The statutory scheme for the annexation of land by municipal corporations has been considerably altered both legislatively and judicially since 1988. As we observed in connection with the attempted annexation of a roadway in City of Smyrna v. Adams, 255 Ga.App. 453, 565 S.E.2d 606 (2002):

In 1985, there were three methods by which a municipality in Georgia could annex property other than by amendment of its corporate charter by an Act of the General Assembly. These methods were (1) in counties with fewer than 100,000 residents, annexation by 100 percent approval of the landowners of the affected area; (2) annexation by application of the owners of at least 60 percent of the land and 60 percent of the electors of the affected area (the 60 percent method); and (3) annexation by resolution and referendum. [Cits.]

Id. at 454, 565 S.E.2d 606. The same statutory scheme remained in place in 1988.² The first method, sometimes called the "100 percent method," was available to the city during that time, and the applicable Code sections were OCGA §§ 36-36-1 and 36-36-2 as then codified.³ Former OCGA § 36-36-2 provided (a) Authority is granted to the governing bodies of the several municipal corporations of this state to annex to the existing corporate limits thereof unincorporated areas contiguous to the existing corporate limits at the time of such annexation, upon the written and signed applications of all of the owners of all of the land, except the owners of any public street, road, highway, or right of way, proposed to be annexed, containing a complete description of the lands to be annexed. Lands to be annexed at any one time shall be treated as one body, regardless of the number of owners, and all parts shall be considered as adjoining the limits of the municipal corporation when any one part of the entire body abuts such limits. When such application is acted upon by the municipal authorities and the land is, by ordinance, annexed to the municipal corporation, a complete survey by a competent surveyor, not necessarily a county surveyor, shall be filed as a part of the ordinance annexing...