City of Tybee Island v. Live Oak Grp., LLC., s. A13A1570

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: BOGGS
• Citation: 751 S.E.2d 123,324 Ga.App. 476
• Parties: CITY OF TYBEE ISLAND, et al. v. LIVE OAK GROUP, LLC. Live Oak Group, LLC. v. City of Tybee Island, Georgia, et al.
• Docket Number: A13A1617.,Nos. A13A1570,s. A13A1570
• Decision Date: 03 March 2014

324 Ga.App. 476
751 S.E.2d 123

CITY OF TYBEE ISLAND, et al.
v.
LIVE OAK GROUP, LLC.
Live Oak Group, LLC.
v.
City of Tybee Island, Georgia, et al.

Nos. A13A1570, A13A1617.

Court of Appeals of Georgia.

Nov. 5, 2013.
Certiorari Denied March 3, 2014.

[751 S.E.2d 124]

Callaway, Braun, Riddle & Hughes, Benjamin Mason Perkins, Patrick T. O'Connor, Oliver Maner, Edward M. Hughes, Savannah, for Appellants.

Hunter, Maclean, Exley & Dunn, Edgar Murray Smith, Savannah, Robert Bates Lovett, for Appellee.

BOGGS, Judge.

In this case, the City of Tybee Island, Georgia (“the City”) denied an application filed by Live Oak Group, LLC (“Live Oak”) seeking to amend the building standards applicable to Live Oak's real property. Live Oak filed a “Zoning Appeal and Petition for Writ of Mandamus” in superior court against the City asserting state and federal constitutional claims and a claim for inverse condemnation. The parties subsequently filed cross-motions for summary judgment, and following the trial court's ruling on the motions, both parties appeal. In Case No. A13A1570, the City appeals from the trial court's denial of its motion for summary judgment, and the grant of Live Oak's motion, on Live Oak's claim for inverse condemnation.¹ In Case No. A13A1617, Live Oak appeals, seeking to remand this case for a ruling on its federal takings claim in the event this court concludes in Case No. A13A1570 that the trial

[751 S.E.2d 125]

court erred in its ruling on the inverse condemnation claim. For the following reasons, we reverse in both cases and remand with direction in Case No. A13A1617.

Case No. A13A1570

The City appeals from the trial court's denial of its motion for summary judgment, and the grant of summary judgment to Live Oak, on Live Oak's claim for inverse condemnation. Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9–11–56(c). “We review the grant or denial of a motion for summary judgment de novo, and we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” (Citation and punctuation omitted.) Woodcraft by Macdonald, Inc. v. Ga. Cas. & Sur. Co., 293 Ga. 9, 10, 743 S.E.2d 373 (2013).

The record reveals that on May 2, 2005, Live Oak purchased certain property on Tybee Island for $250,000. Prior to the purchase, Live Oak was told in writing by a city administrator that the property was zoned “R–1” for a single-family residence,² but the property was in fact zoned “PUD” for a planned unit development.³

On August 13, 2008, Live Oak filed an application for a “PUD Amendment” seeking to construct a single-family home on the property within the “R–1” building standards. When the City denied the application, Live Oak filed a “Zoning Appeal and Petition for Writ of Mandamus” alleging inverse condemnation, an unconstitutional application of the City's zoning ordinance, a deprivation of rights authorized by 42 U.S.C. § 1983, a substantive due process violation of the federal and state constitutions, a taking of property without just compensation in violation of the federal and state constitutions, a denial of equal protection, attorney fees pursuant to 42 USC § 1988, and attorney fees pursuant to OCGA § 9–15–14.

The parties subsequently filed cross-motions for summary judgment on Live Oak's claims. The trial court granted summary judgment in favor of Live Oak on its inverse condemnation claim, but denied summary judgment on its remaining claims after finding that the City's zoning ordinance was not unconstitutionally vague. With the exception of the inverse condemnation claim, the court then granted the City summary judgment on Live Oak's remaining claims. The court explained that it was denying Live Oak's motion for summary judgment on its federal takings claim, and granting the City's motion on the claim, solely because Live Oak “succeeded on its inverse condemnation claim.” Both parties now appeal.

Case No. A13A1570

The City asserts that the trial court erred in denying it summary judgment, and in granting Live Oak summary judgment, on Live Oak's claim for inverse condemnation. Because the City's denial of Live Oak's application for a “PUD Amendment” did not amount to inverse condemnation, we agree.

To state a claim for inverse condemnation, the property owner does not have to show a physical invasion that damages the property, but only an unlawful interference with the owner's right to enjoy the land. Private property owners may be compensated in inverse condemnation actions for the temporary taking of land for the paving of a turn lane, increased noise and odor from a county's sewage plant, and flooding, siltation, and pollution from surface water diverted by roadway maintenance.

(Citations, punctuation and footnotes omitted.) Columbia County v. Doolittle, 270 Ga. 490, 491–492(1), 512 S.E.2d 236 (1999). Municipalities

[751 S.E.2d 126]

can be liable for conditions created on private property only under the constitutional eminent domain provisions against...