Coastal Marshlands v. Ctr. for Sust. Coast, A07A0752.

• Court: United States Court of Appeals (Georgia)
• Citation: 286 Ga. App. 518,649 S.E.2d 619
• Docket Number: No. A07A0897.,No. A07A0753.,No. A07A0934.,No. A07A0752.,A07A0752.,A07A0753.,A07A0897.,A07A0934.
• Parties: COASTAL MARSHLANDS PROTECTION COMMITTEE v. CENTER FOR A SUSTAINABLE COAST et al. Center for a Sustainable Coast et al. v. Coastal Marshlands Protection Committee. Point Peter LLLP v. Center for a Sustainable Coast et al. Center for a Sustainable Coast et al. v. Point Peter LLLP.
• Decision Date: 11 July 2007

286 Ga. App. 518 649 S.E.2d 619 COASTAL MARSHLANDS PROTECTION COMMITTEE
v.
CENTER FOR A SUSTAINABLE COAST et al.
Center for a Sustainable Coast et al.
v.
Coastal Marshlands Protection Committee.
Point Peter LLLP
v.
Center for a Sustainable Coast et al.
Center for a Sustainable Coast et al.
v.
Point Peter LLLP. No. A07A0752. No. A07A0753. No. A07A0897. No. A07A0934. Court of Appeals of Georgia. July 11, 2007.

[649 S.E.2d 622]

Thurbert E. Baker, Atty. Gen., Isaac Byrd, Deputy Atty. Gen., John E. Hennelly, Senior Asst. Atty. Gen., James D. Coots, Asst. Atty. Gen.; James A. Chamberlin Jr., Brunswick, for Coastal Marshlands Protection Committee.

Smith & Floyd, Charles C. Smith, Jr., St. Marys; Gambrell & Russell, Stephen E. O'Day, Atlanta; Alston & Bird, Beverlee E. Silva, Christopher K. DeScherer, Mary Maclean Doolan Asbill, Atlanta, for Center for a Sustainable Coast et al.

King & Spalding, Patricia T. Barmeyer, Atlanta, for Point Peter.

McKenna, Long & Aldridge, R. Todd Silliman; Karsman, Brooks & Callaway, Dana F. Braun; Hunter, Maclean, Exley & Dunn, Frank J. Perch, Andrew H. Ernst, Julie V. Mayfield, amici curiae.

ANDREWS, Presiding Judge.

The primary issue presented in these appeals is whether the Coastal Marshlands Protection Act (CMPA) (OCGA § 12-5-280 et seq.), enacted in 1970 to protect coastal marshlands by regulation of activities and structures in the marshlands, may be construed to [286 Ga. App. 519] regulate activities or structures in high land or upland¹ areas, including storm water runoff from those areas, that may adversely impact the marshlands.

These appeals arise from an application filed by a residential developer, Point Peter LLLP, seeking a permit under the CMPA to construct marina and dock facilities on or over state-owned coastal marshlands and water bottoms² as part of the Cumberland Harbor residential development located on Point Peter peninsula in the city of St. Mary's. Acting pursuant to the CMPA, the Coastal Marshlands Protection Committee (the Committee)³ issued a permit authorizing Point Peter to construct the marina and dock facilities subject to various conditions. Following the Committee's action, the Center for a Sustainable Coast, the Georgia River Network, and the Satilla Riverwatch Alliance (the Challengers),⁴ as "aggrieved or adversely affected" persons under OCGA § 12-5-283(b) and (c), filed a petition to challenge the Committee's actions in a hearing before an administrative law judge (ALJ) in accordance

649 S.E.2d 623

with the Georgia Administrative Procedure Act (APA) (OCGA § 50-13-1 et seq.). The petition challenged the permit on various grounds including the contention that the Committee failed to properly apply the CMPA to protect the marshlands because it failed to regulate Point Peter's adjoining upland residential development, including pollutants carried into the marshlands by storm water runoff generated by the residential development. Point Peter intervened in the administrative proceedings pursuant to OCGA § 50-13-14(1), a hearing was held, and the ALJ issued a final decision on February 20, 2006.⁵ The ALJ affirmed portions of the permit that placed conditions on the marina and dock facilities, but reversed and remanded other portions of the permit for further consideration by the Committee. One basis for the remand was that the CMPA required the Committee to regulate any feature of Point Peter's upland development that may adversely alter the [286 Ga. App. 520] marshlands, including storm water runoff from the upland residential areas in the Cumberland Harbor development.

Within 30 days after the ALJ's decision, the Committee and Point Peter filed petitions seeking superior court judicial review of the ALJ's decision pursuant to OCGA §§ 12-5-283(b) and 50-13-19(b). On the 46th day after the ALJ's decision, the Challengers also filed a petition seeking superior court judicial review of the decision.⁶ The ALJ's decision was subsequently affirmed by operation of law when the Fulton County Superior Court did not act on the petitions within the time limit set forth in OCGA § 12-2-1(c). Pursuant to our grant of applications for discretionary appeals, the Committee (Case No. A07A0752) and Point Peter (Case No. A07A0897) appeal from the superior court's affirmance (by operation of law) of the ALJ's decision. In Case Nos. A07A0753 and A07A0934, the Challengers also appeal from the superior court's affirmance in identical cross-appeals to the appeals filed by the Committee and Point Peter.

1. We first address preliminary issues regarding our jurisdiction to consider the appeals.

Under OCGA § 50-13-20, only a final judgment of the superior court rendered pursuant to the APA may be reviewed on appeal by this Court. Generally, where a superior court remands for additional findings on any issue, this is not a final judgment subject to appellate review. Ga. Public Svc. Comm. v. Southern Bell, 254 Ga. 244, 247, 327 S.E.2d 726 (1985). Nevertheless, we find under the present circumstances that the ALJ's remand, which was made the superior court's remand by operation of law, does not preclude our exercise of jurisdiction. Here, the remand did more than merely return the case for consideration of additional issues and evidence to facilitate the superior court's final resolution of the case — a remand was ordered on the basis that the Committee erred as a matter of law by failing to construe the CMPA to require regulation of the upland residential development. On these facts, we find that the order was functionally and substantively an appealable final judgment under OCGA § 50-13-20. Hughey v. Gwinnett County, 278 Ga. 740-741, 609 S.E.2d 324 (2004); Ga. Public Svc. Comm. v. Campaign for a Prosperous Ga., 229 Ga.App. 28, 29, 492 S.E.2d 916 (1997). Accordingly, we have jurisdiction to consider the appeals.

[286 Ga. App. 521] As to the cross-appeals brought by the Challengers in Case Nos. A07A0753 and A07A0934, the Committee and Point Peter contend that the failure of the Challengers to seek superior court judicial review of the ALJ's decision within 30 days after the decision requires that the cross-appeals be dismissed for lack of jurisdiction in this Court.

649 S.E.2d 624

Under OCGA § 12-5-283(b) of the CMPA, judicial review of the ALJ's decision, which constituted the final decision of the Board of Natural Resources, was pursuant to the provisions of the APA. Because the Challengers failed to comply with APA provisions in OCGA § 50-13-19(b) requiring that the petition for review be filed with the superior court within 30 days after the ALJ's decision, the superior court lacked jurisdiction to consider their untimely petition. Dept. of Human Resources v. Lewis, 217 Ga.App. 399-400, 457 S.E.2d 824 (1995). Nevertheless, the Committee and Point Peter filed timely petitions for review in the superior court, and then filed appeals from the superior court to this Court pursuant to our grant of discretionary appeals. OCGA §§ 50-13-20; 5-6-35(g). As appellees in those appeals, the Challengers' appeals are properly before this Court as cross-appeals filed pursuant to OCGA § 5-6-38(a). Exec. Jet Sales v. Jet America, 242 Ga. 307, 248 S.E.2d 676 (1978); Centennial Ins. Co. v. Sandner, 259 Ga. 317, 380 S.E.2d 704 (1989).

2. In Case Nos. A07A0752 and A07A0897, the Committee and Point Peter contend that the ALJ (as affirmed by the superior court) erred as a matter of law by construing the CMPA to require that the Committee consider whether activities in the upland residential development, including storm water runoff into the marshlands generated by the residential development, would alter the marshlands as regulated under OCGA § 12-5-286(a). We conduct a de novo review with respect to claimed errors of law in the superior court's affirmance of the ALJ's decision. Gen. Motors Acceptance Corp. v. Jackson, 247 Ga.App. 141, 542 S.E.2d 538 (2000); Gladowski v. Dept. of Family etc., Svcs., 281 Ga.App. 299, 635 S.E.2d 886 (2006); OCGA § 50-13-19(h).

When the General Assembly enacted the CMPA, it expressly recognized the varied values and functions of Georgia's coastal marshlands that CMPA regulation protects.

The General Assembly finds and declares that the coastal marshlands of Georgia comprise a vital natural resource system. It is recognized that the estuarine area of Georgia is the habitat of many species of marine life and wildlife and, without the food supplied by the marshlands, such marine life and wildlife cannot survive. The General Assembly further finds that intensive marine research has revealed that the estuarine marshlands of coastal Georgia are among [286 Ga. App. 522] the richest providers of nutrients in the world. Such marshlands provide a nursery for commercially and recreationally important species of shellfish and other wildlife, provide a great buffer against flooding and erosion, and help control and disseminate pollutants. Also, it is found that the coastal marshlands provide a natural recreation resource which has become vitally linked to the economy of Georgia's coastal zone and to that of the entire state. The General Assembly further finds that this coastal marshlands resource system is costly, if not impossible, to reconstruct or rehabilitate once adversely affected by man related activities and is important to conserve for the present and future use and enjoyment of all citizens and visitors to this state. The General Assembly further finds that the coastal marshlands are a vital area of the state and are essential to maintain the health, safety, and welfare of all the citizens of the state. Therefore, the General Assembly declares that the management of the coastal marshlands has more than local significance, is of equal importance to all citizens of the state, is of state-wide concern, and consequently is properly a matter for regulation under the police power of the state.

OCGA § 12-5-281. In light of these findings, the General...