Department of Transp. v. City of Atlanta

• Decision Date: 08 October 1985
• Docket Number: Nos. 42499 and 42673-42675,s. 42499 and 42673-42675
• Citation: 255 Ga. 124,337 S.E.2d 327
• Parties: DEPARTMENT OF TRANSPORTATION v. CITY OF ATLANTA et al. DEPARTMENT OF TRANSPORTATION v. DAVIS et al. ARAPAHO CONSTRUCTION, INC. v. DAVIS, et al. CITY OF ATLANTA v. DAVIS et al.
• Court: Georgia Supreme Court

Page 327

337 S.E.2d 327

255 Ga. 124

DEPARTMENT OF TRANSPORTATION v. CITY OF ATLANTA et al.

DEPARTMENT OF TRANSPORTATION v. DAVIS et al.

ARAPAHO CONSTRUCTION, INC. v. DAVIS, et al.

CITY OF ATLANTA v. DAVIS et al.

Nos. 42499 and 42673-42675.

Supreme Court of Georgia.

Oct. 8, 1985.

Reconsideration Denied Oct. 29 and Nov. 5, 1985.

Michael J. Bowers, Atty. Gen., Marion O. Gordon, First Asst. Atty. Gen., Roland F. Matson, William C. Joy, Sr. Asst. Attys. Gen., Charles M. Richards, Asst. Atty. Gen., Dept. of Transp.

David F. Walbert, Walbert & Hermann, Gary R. Smith, Marion Kuntz, and David Flint, Atlanta, for Mary Davis et. al.

Michael R. Johnson, Neely & Player, Atlanta, for Arapaho Const., Inc.

Marva Jones Brooks, Kendric E. Smith, Overtis, Hicks & Coopwood, Atlanta, for City of Atlanta.

Hansell & Post, Terrence B. Adamson, Mary A. Prebula, Long & Aldridge, Jack H. Watson, Jr., Alston & Bird, Sidney O. Smith, Jr., Anne S. Rampacek, King & Spalding, Griffin B. Bell, Frank C. Jones, Richard A. Schneider, amici curiae.

SMITH, Justice.

These cases arise from actions taken by the State Department of Transportation (DOT) and the City of Atlanta (the city) pursuant to our decision voiding a land The Presidential Parkway is a proposed limited access highway designed to carry traffic between the downtown connector near its intersection with International Boulevard, and Ponce de Leon Avenue east of Moreland Avenue. Some of the recent, tangled history of the Parkway may be found in Brooks, supra. The Parkway, as planned, is meant to traverse portions of four parks owned by the city and located in DeKalb County: Candler Park, Shadyside Park, Goldsboro Park, and Dellwood Park.

                transfer from the city to the DOT in Department of Transportation v. Brooks et al., 254 Ga. 303, 328 S.E.2d 705 (1985).  In case no. 42499, the DOT seeks to overturn the DeKalb County Superior Court's dismissal of a condemnation petition involving interests retained by the city in four parks in Atlanta, DeKalb County.  In case nos. 42673, 42674, and 42675, the DOT, the city, and Arapaho Construction, Inc., seek to overturn the same court's permanent injunction barring any further construction on any portion of the Presidential Parkway.  We affirm Case No. 42499.   We affirm in part and reverse in part Case Nos. 42673, 42674, and 42675
                

Construction of the Parkway began in December, 1984. In February, 1985, after a hearing in Brooks, the Fulton County Superior Court issued an injunction barring some construction on the Parkway. Brooks, was decided on April 23, 1985. In Brooks, we held that a deed transferring portions of these four parks from the city to the DOT was void because of "the very existence of the conflict of interest." 254 Ga. at 317, 328 S.E.2d 705.

On May 20, 1985, the Atlanta City Council passed an ordinance, which was signed into law on June 3, 1985, authorizing a second transfer of portions of the four parks in controversy to the DOT. This ordinance, unlike the ordinance involved in Brooks, imposed a number of restrictions on the transfer. The text of the new deed conditioned the transfer upon the maintenance of a thirty-five mile per hour speed limit on the Parkway, a ban on "trucks and heavy vehicles" on the Parkway, and a bar against the widening of Ponce De Leon Avenue east of Moreland Avenue. The deed also contained a possibility of reverter to be triggered by any violation of these conditions.

On June 6, the DOT accepted the deed after objecting to the conditions and the possibility of reverter. That same day, Mayor Young and Commissioner Moreland of the DOT executed an agreement which stated that the DOT reserved the right to condemn certain property interests, primarily the possibility of reverter, which were reserved in the deed. On June 7, the DOT filed a petition in the DeKalb County Superior Court seeking to condemn the possibility of reverter and any other interest that the city might have retained in the portions of the parks deeded to the DOT. The DOT paid $1.00 into the court as just and adequate compensation for the property interests condemned.

On June 10, appellees Davis, Schulman, Brady, and Ratel (the intervenors) moved to intervene. On July 1, the trial judge granted the motion to intervene and dismissed the condemnation petition. The trial court ruled that the description of the property interests to be condemned was insufficient, and that the DOT, in any event, could not condemn municipal property under the procedure it sought to use.

On July 2, Davis and Schulman, appellees in both cases here, filed suit to void the land transfer from the city to the DOT and to enjoin any further construction on the Parkway. The trial court granted a temporary restraining order against any further construction in the parks on July 12. On September 4, the trial court issued an order voiding the land transfer and a permanent injunction against any further construction on any portion of the Parkway.

1. Appellants contend that some issues raised by the intervenors should be barred by res judicata, and that the intervenors should be prohibited from pursuing this suit under the doctrine of laches.

a. Brooks, supra, involved the validity of the Atlanta City Council's procedure in attempting to transfer land that it owned to the DOT, and the propriety of allowing a certain contractor to continue to work on The DOT, thus, does not contend that questions relating to the condemnation issue and the procedure followed by the city in this transfer are barred by res judicata. The DOT primarily asserts that the appellees' claims that the city does not have the authority to transfer the parklands, and that the dedication of the parks prevents their transfer, should be barred by res judicata. The question is thus reduced to whether the taxpayers' previous successful attempt to prevent the earlier land transfer will act as a bar to their subsequent attempt to prevent a later land transfer of the same land on grounds that could have been, but were not in fact, used to justify the earlier bar on the first transfer.

the Parkway. We held that the contractor should be allowed to continue working on the Parkway, but that a conflict of interest on the part of the City Council President in presiding over council proceedings involving the transfer rendered the council's actions in transferring the land void. Here, the intervenors claim that a second, separate transfer of the same property violates state law and municipal ordinances, and that the state may not condemn any interest reserved by the city in the subject property.

An issue involving the same piece of land will not be barred when it arises out of a second transaction. The intervenors will not receive, under this holding, a "second shot" at the transaction involved in Brooks. A finding of res judicata would not prevent multiple lawsuits here. The city and the DOT may have violated the same "right" of the intervenors in this case that they did in Brooks, but they did so in a different transaction. See Spence v. Erwin, 200 Ga. 672, 38 S.E.2d 394 (1946). The trial court correctly found that res judicata does not bar any of this action.

b. As the intervenors filed a timely motion to intervene in case no. 42499, and filed the second suit almost immediately after the condemnation petition was denied, we find no laches here.

2. The land in the four parks in question was expressly dedicated to the city for use as parklands. The city accepted the dedication. There were no reversionary clauses in the deeds of dedication. As the record in this action shows, the parks have not been abandoned by the city or the public.

a. "Where a municipality dedicates property to a public use, it inures to the benefit of all who are at the time, or may afterwards become, citizens of the municipality, such dedication being in the nature of an estoppel in pais; and where an attempt is made by the proprietor to revoke it by a sale of the land, the municipality may be enjoined by any person interested. Mayor etc. of Macon v. Franklin, 12 Ga. 239 (5, 6). Where a municipality dedicates property to a public use, it may be put to all customary uses within the definition of the use. Any use which is inconsistent, or which substantially and materially interferes, with the use of the property for the particular purpose for which it was dedicated, will constitute a misuser or diversion. Brown v. City of East Point, 148 Ga. 85(3) (95 SE 962)." Norton et al. v. City of Gainesville, 211 Ga. 387, 389, 86 S.E.2d 234 (1955).

Norton involved an attempted lease of parklands to a private interest. The court enjoined the lease. This court clearly indicated, in the passage quoted above, that the justification for the injunction of the lease rested in the fact that the lease would constitute a change in the nature of the use of the property, not in the fact that the lease involved a private party. In fact, no sale or conveyance was involved in Norton. The change in use of dedicated parklands was the central factor mitigating in favor of the injunction.

City Council of Augusta, et al. v. Newsome, et al., 211 Ga. 899, 89 S.E.2d 485 (1955), and Harper, et al. v. City Council of Augusta, et al., 212 Ga. 605, 94 S.E.2d 690 (1956), show the process mandated by this court in cases where a city wishes to alienate land which has been dedicated to it as a park, and which has not been abandoned. In Newsome, this court barred the City Council from selling a park to Sears and Roebuck on the grounds that the city b. In promulgating OCGA § 36-37-6.1 (Ga.Laws 1982 p. 2107, § 40), the legislature recognized the state law exemplified by Newsome. OCGA § 36-37-6.1 grants municipalities having a population greater than 300,000 the authority to "sell, exchange, or otherwise dispose of any real or personal property" including parks and property used for other recreational purposes except where "authorizing alienation ... would be in...