Forsyth Cnty. v. Mommies Props. LLC

• Decision Date: 11 March 2021
• Docket Number: A20A1810, A20A1811, A20A1812, A20A1813
• Parties: FORSYTH COUNTY, Georgia et al. v. MOMMIES PROPERTIES LLC (four cases).
• Court: Georgia Court of Appeals

359 Ga.App. 175
855 S.E.2d 126

FORSYTH COUNTY, Georgia et al.
v.
MOMMIES PROPERTIES LLC (four cases).

A20A1810, A20A1811, A20A1812, A20A1813

Court of Appeals of Georgia.

March 11, 2021
Reconsideration Denied March 25, 2021
Certiorari Denied October 5, 2021

855 S.E.2d 128

Paul Brian Frickey, Ken Jarrard, Cumming, for Appellant.

James Stuart Teague Jr., Larry C. Oldham, Keisha Leigh Martin Chambless, Cumming, for Appellee.

Gobeil, Judge.

855 S.E.2d 129

359 Ga.App. 175

This case involves Mommies Properties, LLC's ("Petitioner")¹ four appeals to the Forsyth County Zoning Board of Appeals ("ZBA"): an appeal of a stop work order issued for failing to get a land disturbance permit for stockpiling dirt on its property (A20A1810);

359 Ga.App. 176

an appeal of a decision requiring an erosion control plan for grassing the property (A20A1811); an appeal of a second stop work order issued for failing to comply with the Metropolitan River Protection Act, OCGA § 12-5-440 et seq. ("MRPA") (A20A1812); and an appeal of a decision denying Petitioner a building permit to build a custodial residence on the property (A20A1813). The ZBA found against Petitioner and in favor of Forsyth County (the "County")² on all of the appeals. Petitioner appealed to the superior court by way of petitions for writ of certiorari. The superior court in turn reversed the ZBA's decisions, and denied the County's motions for reconsideration in each case. The County then filed four separate applications for discretionary appeal, which we granted. See Case Nos. A20D0334, A20D0335, A20D0336, and A20D0337 (granted March 25, 2020). The instant appeals followed. For the reasons that follow, we reverse in all four appeals.³

The appropriate standard of review to be applied to issues of fact on writ of certiorari to the superior court is whether the decision below was supported by any evidence. On appeal to this [C]ourt, our duty is not to review whether the record supports the superior court's decision, but whether the record supports the initial decision of the local governing body or administrative agency. Neither the superior court nor this [C]ourt reweighs credibility determinations of the factfinder. In other words, because the factfinder in the initial proceedings is charged with weighing the evidence and judging the credibility of the witnesses, the superior court and this [C]ourt must view the evidence in the light most favorable to the factfinder's decision and must affirm the decision if there is any evidence to support it, even when

359 Ga.App. 177

the party challenging the factfinder's conclusions presented evidence during the initial proceedings that conflicted with those conclusions.

City of Albany v. Pait , 335 Ga. App. 215, 216 (1), 780 S.E.2d 103 (2015) (citation and punctuation omitted).

So viewed, the record shows that in 2005, Petitioner purchased an 18.41 acre tract in Forsyth County. At issue in these appeals is an approximately 3.92 acre portion of that tract (the "Property"), which is zoned Commercial Business District use under the Forsyth County Unified Development Code ("UDC") and is subject to a zoning condition that limits its use to an equestrian center consisting of horse stables and paddocks. The Property is adjacent to the Chattahoochee River Club Subdivision, a residential development with approximately 600 homes (the

855 S.E.2d 130

"Subdivision"). The developer of the Subdivision built a large horse barn on the Property, and Petitioner has operated horse stables there since it purchased the Property in 2005. The Chattahoochee River Club Property Owners Association, Inc. (the "Association") is responsible for enforcement of covenants in the Subdivision.

On December 28, 2017, Code Enforcement Officer Doug Briggs went to the Property, at the request of County officials, to investigate reports of loads of dirt being delivered to the Property. Residents of the Subdivision and the Association had raised concerns to the County about activities on the Property including severe deforestation, construction noise, and other land disturbance nuisance. Upon arrival, Briggs observed four piles of dirt that had been brought onto the Property and was informed by a hauling contractor that more dirt was coming. Briggs testified that the hauling contractor told him the dirt came from Petitioner's "other projects" and was being "store[d]" on the Property. As Briggs was speaking with the contractor, three additional dump trucks filled with dirt pulled up at the Property. The contractor agreed to temporarily cease delivery of the soil pending the County's investigation. Briggs noted that the Property lacked any permits for site development.

Briggs contacted Soil Erosion Inspector Shane Pruitt, who upon entry onto the Property shortly thereafter also noticed the dirt piles. Pruitt identified State Waters on the Property and estimated that the dirt was 150 feet away from the bank. Based on this information, Pruitt issued a stop work order on December 28, 2017, because Forsyth County's Soil Sedimentation and Erosion Control Ordinance ("Ordinance 73") requires a land disturbance permit to transport and stockpile dirt onto a site within 200 feet from State Waters absent any

359 Ga.App. 178

Best Management Practices ("BMP") in place.⁴ Following the entry of the first stop work order, the only land-disturbing activity permitted on the Property would be instituting BMP. Petitioner countered that the four loads of dirt had been transported to the Property with the intent of top dressing a 0.3 acre portion of a horse paddock to grow grass and it did not need a permit for that purpose. Petitioner filed an appeal of the stop work order to the ZBA, and this claim forms the basis of the appeal in Case No. A20A1810.

Around the same time that the dirt was being brought onto the Property, Petitioner represented that the electrical service utility for the Property had trenched a ditch across the margin of the riding ring to replace the power line to the stables building. The County issued a second stop work order on January 29, 2018, based on Petitioner's failure to comply with the MRPA to obtain a certificate or permit from the Georgia Mountains Regional Commission⁵ regarding the dirt. Specifically, Thomas Brown in his capacity as Director of the County's Department of Planning and Community Development requested the second stop work order because he received information from Briggs that truckloads of dirt were being brought onto the Property without explanation for the use of the dirt and whether that use complied with the MRPA. Brown also explained that the County entered the second stop work order based on concerns that the engineering department could lift the first stop work order without confirmation as to whether Petitioner was in compliance with the MRPA. Petitioner insisted that it was not required to secure a MRPA permit to trench a line for burying utility connections.⁶ Petitioner filed another appeal with the ZBA to contest the second stop work order, and this claim forms the basis of the appeal in Case No. A20A1812.

Following the inspections of the Property, the County informed Petitioner that it needed an Erosion and Sedimentation and Pollution

855 S.E.2d 131

Control Plan, pursuant to Section V (D) (2) of Ordinance 73, in order to obtain a land disturbance permit for the dirt on the Property. Petitioner argued that no such plan was necessary because it planned to add top soil to an area less than one acre in size and more

359 Ga.App. 179

than 200 feet away from State Waters. Additionally, Petitioner alleged that it was being singled out by the County to meet certain permit requirements that were not imposed on other comparable entities.⁷ Petitioner appealed the requirement of an erosion control plan to the ZBA, which is at issue in Case No. A20A1811.

Also during this time, Petitioner had applied for a building permit to build a custodial residence on the Property. The County denied the permit based on the pending stop work orders. Petitioner also appealed this decision to the ZBA, and this claim forms the basis of the appeal in Case No. A20A1813.

At the June 5, 2018 hearing before the ZBA, Petitioner appeared pro se,⁸ and elected not to present any witnesses in support of its appeals. The County's witnesses, including Briggs, Pruitt, and Brown, testified as described above, and Petitioner was afforded an opportunity to cross-examine each of the witnesses. At the conclusion of the hearing, the ZBA ruled against Petitioner on all of its appeals. Petitioner appealed to the superior court via a consolidated petition for a writ of certiorari. The superior court dismissed this first petition without prejudice in response to the County's contentions that the appeals could not be consolidated in a single petition to the superior court. The County filed an application for discretionary appeal from the superior court's dismissal, essentially requesting clarification on the certiorari process and to prevent Petitioner from being able to re-file its petition. This Court denied the County's application. See Case No. A19D0498 (denied June 26, 2019).

On July 17, 2019, Petitioner renewed its appeal to the superior court by filing separate petitions for a writ of certiorari. After a two-day hearing,⁹ the superior court reversed the ZBA as to the four certiorari cases.¹⁰

With respect to the first stop work order at issue in Case No. A20A1810, the superior court found that Ordinance 73 was ambiguous. Specifically, based on the language of the ordinance, the court held that it was unclear whether the addition of top soil and grass seed falls with the ambit of "land-disturbing activity." Construing the ambiguity in favor of Petitioner, the court found that the addition of top soil

359 Ga.App. 180

on the Property did not rise to the level of a land-disturbing activity requiring a permit. Alternatively, the court determined that, even if top soil application and seeding did qualify as...