Cleland v. Gwinnett County

• Decision Date: 03 June 1997
• Docket Number: No. A97A0413,A97A0413
• Citation: 487 S.E.2d 434,226 Ga.App. 636
• Parties: , 97 FCDR 2153 CLELAND v. GWINNETT COUNTY et al.
• Court: Georgia Court of Appeals

Page 434

487 S.E.2d 434

226 Ga.App. 636, 97 FCDR 2153

CLELAND v. GWINNETT COUNTY et al.

No. A97A0413.

Court of Appeals of Georgia.

June 3, 1997.

Stanley E. Kreimer, Jr., Atlanta, for appellant.

Caryl Sumner, Karen G. Thomas, Lawrenceville, Michael V. Stephens II, Atlanta, Webb, Tanner & Powell, Anthony O.L. Powell, Robert J. Wilson, Lawrenceville, for appellees.

BEASLEY, Judge.

Segars, a developer, began construction of a house on the lot next to Cleland's home. Cleland determined that based on the house's foundation, the homes would not have the ten-foot space between them required by a local zoning ordinance and the subdivision plat. Segars sought a variance which was denied.

The zoning ordinance requires that detached single-family homes in the pertinent category "have a minimum five-foot side yard on each side." The subdivision plat requires a "combined total of 10 [feet] from roof line to roof line" between houses, and a drawing of a "typical lot layout" showing a distance of ten feet between two parallel houses.

After the denial of the variance, Segars revised the building plan, recessing a portion of the near wall to a profile so that the nearest point to Cleland's house was slightly more than ten feet away from the corner of her house, but keeping the front of the house as originally designed. Because of the way the two houses were located on their respective lots, a straight line drawn directly back from the front corner of the new house was still within ten feet of Cleland's side wall. The diagrams, plat, and other evidence of record show that the side yard of Segars' house, measured from the front corner, could not have five feet between the house and the property line if Segars' house was in compliance.

The county's department of planning and development rejected the altered building plan. Segars appealed to the Zoning Board of Appeals, which approved the redesign, ruling that because the total distance between the two houses was greater than ten feet, the plat requirement was satisfied. Despite the Board's adoption of the developer's desired meaning of "roof line to roof line," the developer appealed to the superior court, asking for a declaratory judgment on the matter. The court ruled that the term allowed the interpretation adopted. Although the court also referred to "the ordinance," it does not identify any ordinance and does not appear to interpret any ordinance.

Cleland also appealed the Board's decision and added counts for declaratory judgment on the meaning of the zoning ordinance, attorney fees for stubborn litigiousness, and damages to the value of her property. The superior court granted Segars' motion for summary judgment on the ground that the earlier superior court decision, rendered on Segars' appeal, collaterally estopped Cleland from asserting a different interpretation of the plat requirement or ordinance. Cleland sought an appeal under the discretionary review procedures of OCGA § 5-6-35(a)(1), which was granted. Both Segars and the county are appellees.

" '[Collateral estoppel] prevents relitigation in a subsequent suit (involving a different cause of action) a matter which was actually adjudicated in a former case. (Cit.)' " Miller v. Charles, 211 Ga.App. 386, 387, 439 S.E.2d 88 (1993). It is available only when " 'the subsequent suit is between the same parties or their privies. (Cits.)' " Id.

Appellees contend Cleland is the county's privy for purposes of collateral estoppel, citing DeKalb County v. Post Properties, 245 Ga. 214, 219(2), 263 S.E.2d 905 (1980), for the proposition that "where the interest of the [landowner] is identical to that of a governmental body ... who is a named party, it will be assumed that the [landowner's] interests are adequately represented [by the governmental body], absent a 'concrete showing of circumstances in the particular case that make the representation inadequate.' [Cit.]" (Footnote omitted.)

That case does not control the question here. First, Post Properties involved intervention as a matter of right under OCGA § 9-11-24(a)(2), when the issue was whether an applicant's interests were "adequately represented" within the meaning of that section. Second, by its very language the cited portion of Post Properties applies only when the interests of the governmental body and the landowner are identical. The county's position in the prior action in superior court advocated the interpretation of the plat that the developer and it had agreed upon. The county did not advocate the interpretation Cleland sought and their interests...