DeKalb County v. Post Apartment Homes, A98A2148.

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: ELDRIDGE.
• Citation: 234 Ga. App. 409,506 S.E.2d 899
• Parties: DeKALB COUNTY v. POST APARTMENT HOMES, L.P.
• Docket Number: No. A98A2148.,A98A2148.
• Decision Date: 16 September 1998

506 S.E.2d 899
234 Ga. App. 409

DeKALB COUNTY
v.
POST APARTMENT HOMES, L.P

No. A98A2148.

Court of Appeals of Georgia.

September 16, 1998.

Certiorari Denied January 15, 1999.

506 S.E.2d 900

Jenkins & Nelson, Kirk R. Fjelstul, Cartersville, John I. Nichols, for appellant

Glass, McCullough, Sherrill & Harrold, Kathryn M. Zickert, Shea E. Roberts, Donna J. Nance, Atlanta, for appellee.

David D. Blum, Atlanta, amicus curiae.

ELDRIDGE, Judge.

On January 7, 1997, Post Apartment Homes, L.P., plaintiff-appellee ("Post"), purchased 32.59 acres in DeKalb County. Previously, on January 24, 1996, DeKalb County, defendant-appellant, through its Board of Commissioners, passed an ordinance rezoning 28 acres of the property to RM-HD and C-1 zoning classifications, high-density, multi-family zoning classifications that are subject to development conditions.

Prior to the rezoning, Post negotiated the conditions with a group of neighbors on Arborvista Drive, whose homes backed up to the Post development. The neighbors were concerned with the southeast corner of Post's property, because there was a dry creek bed, possible wetlands, and a ravine. Initially, Post agreed to construct a 50-foot buffer along the entire eastern boundary line; however, to satisfy concerns by the neighbors, Post agreed to create behind the initial buffer, at the southeast corner, an 80-foot "no build" box behind some of the Arborvista homes, total 130-foot distance from the eastern property line, and an 80-foot by 140-foot space for a "green space" and detention pond in the southeast corner, partially in the "no build" box. Such special rezoning condition was expressed as follows: "no less than a 130-foot setback will exist between all buildings or parking spaces and [the] shared boundary line." When William and Alicia Gelford, owners of 1216 Arborvista Drive, expressed concern, Post agreed to extend the "no build" box behind their property as well. The rezoning application showed that buildings would abut the "no build" box and that the ravine would not be preserved.

On February 2, 1997, Post filed an application and plans with DeKalb County to obtain a development permit, and on June 25, 1997, DeKalb County issued Post the development permit. On May 29, 1997, Post filed an application and plans with DeKalb County to obtain a building permit, and on July 23, 1997, DeKalb County issued the building permit. The plans showed a building northeast of the Gelford property, which was outside the "no build" box, but within 130 feet measured from an arch from the northwest corner of the Gelford property.

On September 23, 1997, Post commenced construction of the building, which contained 24 apartment units. On January 23, 1998, the Gelfords complained to the Director of Public Works for DeKalb [234 Ga. App. 410] County that the construction of the building fell within 130 feet of an arch from the northwestern corner of the Gelford property. On January 29, 1998, DeKalb County told Post to stop construction on the building until a "reasonable solution" could be reached with the Gelfords. Post representatives met with the Gelfords, and Mrs. Gelford demanded that two floors be removed from the building already constructed and that she be paid 500,000.

On February 12, 1998, Post brought a declaratory injunction and sought injunctive relief to prevent DeKalb County from interfering with its rights. DeKalb County answered. DeKalb County admitted in judicio "that the DeKalb County Board of Commissioners rezoned the subject property on January 24, 1996, to the RM-HD and C-1 zoning classifications." DeKalb County also admitted issuing the development and building permits. A hearing was held on April 20, 1998, and testimony and evidence were given;

506 S.E.2d 901

however, the trial court ruled against DeKalb County as a matter of law as to the construction of the rezoning ordinance and for Post that the 130-foot setback was a straight line from the boundary line as a "no build" box rather than as an arch measured from any point along the property line. DeKalb County timely filed its notice of appeal

1. DeKalb County enumerates as error that the trial court erred in ruling that plaintiff can build within the 130-foot arch at the Gelford property line. We do not agree.

"Since statutes or ordinances which restrict an owner's right to freely use his property for any lawful purpose are in derogation of the common law, they must be strictly construed and never extended beyond their plain and explicit terms. [Cits.]" Duncan v. Entrekin, 211 Ga. 311, 312, 85 S.E.2d 771 (1955); accord Fayette County v. Seagraves, 245 Ga. 196, 197-198, 264 S.E.2d 13 (1980). Since the exercise of police power in regulating the use of land infringes upon the landowner's right to its unfettered use of the land,...