Ctr. for a Sustainable Coast, Inc. v. Ga. Dep't of Natural Res.

• Decision Date: 13 November 2012
• Docket Number: No. A12A1059.,A12A1059.
• Citation: 319 Ga.App. 205,734 S.E.2d 206
• Parties: CENTER FOR A SUSTAINABLE COAST, INC. et al. v. GEORGIA DEPARTMENT OF NATURAL RESOURCES.
• Court: Georgia Court of Appeals

319 Ga.App. 205

734 S.E.2d 206

CENTER FOR A SUSTAINABLE COAST, INC. et al.

v.GEORGIA DEPARTMENT OF NATURAL RESOURCES.

No. A12A1059.

Court of Appeals of Georgia.

Nov. 13, 2012.

Reconsideration Denied Dec. 7, 2012.

Donald D.J. Stack, Atlanta, Jennifer R. Rhoton Culler, for appellants.

Samuel S. Olens, Atty. Gen., James Doyle Coots, Senior Asst. Atty. Gen., Isaac Byrd, Deputy Atty. Gen., John E. Hennelly, Asst. Atty. Gen., for appellee.

ELLINGTON, Chief Judge.

The Center for a Sustainable Coast, Inc., and two named plaintiffs (collectively, "the Center") filed a petition for injunctive relief and declaratory judgment challenging the Georgia Department of Natural Resources' ("DNR") use of "letters of permission" to allow alterations to the coast that the Center contends require a permit.¹ The trial court dismissed the petition, and the Center appeals this ruling.

On appeal, this Court reviews the denial of a motion to dismiss de novo. Scott v. Scott, 311 Ga.App. 726(1), 716 S.E.2d 809 (2011). In deciding the motion, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in the plaintiff's favor. Id. So viewed, the relevant facts show that the Center filed suit against several defendants, including DNR and the Coastal Resources Division ("CRD"), which is a division of the DNR. The complaint alleged that the CRD was violating the Shore Protection Act ("the Act") by issuing letters of permission for construction activities that, under the Act, require a permit. OCGA § 12–5–230 et seq. Pursuant to OCGA § 12–5–237 :

(a) No person shall construct or erect any structure or construct, erect, conduct, or engage in any shoreline engineering activity or engage in any land alteration which alters the natural topography or vegetation of any area within the jurisdiction of this part, except in accordance with the terms and conditions of a permit therefor issued in accordance with this part. A permit may authorize the construction or maintenance of the project proposed in an application. After construction of a project pursuant to a permit, the project may be maintained without a permit so long as it does not further alter the natural topography or vegetation of the site or increase the size or scope of the project.

(b) No permit shall be required for a structure, shoreline engineering activity, or land alteration which exists as of July 1, 1979, provided that a permit must be obtained for any modification which will have a greater adverse effect on the sand-sharing system or for any addition to or extension of such shoreline engineering activity, structure, or land alteration; provided, further, that, if any structure, shoreline engineering activity, or land alteration is more than 80 percent destroyed by wind, water, or erosion as determined by an appraisal of the fair market value by a real estate appraiser certified pursuant to Chapter 39A of Title 43, a permit is required for reconstruction.

In order to obtain a permit, an applicant must comply with myriad requirements, which includes providing the names and addresses of all landowners whose property adjoins or abuts the parcel of land. See, e.g., OCGA § 12–5–238. The permit is then submitted to a Shore Protection Committee, which is comprised of the commissioner of the DNR and four others.² OCGA § 12–5–235(a), (b). The interested parties and adjoining landowners are provided notice of the proposed action before any permit is granted. See OCGA § 12–5–239(b). In determining whether to grant the permit, the granting authority must consider whether the proposed action is unreasonably harmful; whether completion of the project will unreasonably interfere with conservation of marine life or wildlife; and whether completion of the project will unreasonably interfere with public access and enjoyment of public properties. OCGA § 12–5–239(i).

Although the Act does not contain any provision for circumventing the permit process, ³ the CRD often issues letters of permission for certain requests without requiring the applicant to formally seek a permit. Such letters of permission have allowed petitioners to take actions ranging from the rebuilding of houses and drainage systems, to the construction of a film set. The Center sought injunctive relief and declaratory judgment stating that the issuance of letters of permission were ultra vires acts. The Center also asserted claims for equal protection violations, due process violations, and attorney fees.

DNR and CRD (collectively, "the Respondents") moved to dismiss the complaint. According to the Respondents, the crux of the Center's claim was its request for a declaratory judgment and that all other counts in the complaint flowed from the contention that the issuance of letters of permission were ultra vires acts.⁴ The Respondents maintained that declaratory judgment was unavailable as no justiciable controversy existed. Because the remaining counts flowed from the declaratory judgment, the Respondents argued those counts should be dismissed as well. The trial court agreed with these arguments and granted the Respondents' motion to dismiss.

The Center seeks to appeal this ruling. Although the Center raises several arguments in its brief, the two main issues are: (1) whether the trial court properly dismissed the declaratory judgment claim; and (2) whether dismissal of the declaratory judgment claim required dismissal of the remaining claims and the request for injunctive relief.

1. Under OCGA § 9–4–2, a trial court is authorized to declare rights and other legal relations of interested parties in any civil matter "in which it appears to the court that the ends of justice require that the declaration should be made; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such." OCGA § 9–4–2(b).

However, a declaratory judgment may not be granted in the absence of a justiciable controversy. The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated. As many times pointed out by this court, its purpose is to permit one who is walking in the dark to ascertain where he is and where he is going, to turn on the light before he steps rather than after he has stepped in a hole.

(Punctuation omitted.) Cox v. Athens Regional Med. Center, 279 Ga.App. 586, 594(5), 631 S.E.2d 792 (2006). To constitute a justiciable controversy, "there must be a concrete issue, a definite assertion of legal rights, and a positive legal duty with respect thereto, which are denied by the adverse party." (Punctuation omitted.) Airport Auth. of City of St. Marys v. City of St. Marys, 297 Ga.App. 645, 648, 678 S.E.2d 103 (2009).

The trial court properly concluded that there is no justiciable controversy. The Center is not seeking guidance with respect to actions it might take. Rather, it seeks a declaration that past actions taken by the Respondents were ultra vires. "Where the rights of the parties have already accrued and the party seeking the declaratory judgment does not risk taking future undirected action, a declaratory judgment would be ‘advisory.’ " Baker v. City of Marietta, 271 Ga. 210, 214(1), 518 S.E.2d 879 (1999). Although it is possible that the Respondents will issue letters of permission in...