Geron v. Calibre Companies, Inc.
| Decision Date | 02 November 1982 |
| Docket Number | 38975,Nos. 38974,s. 38974 |
| Citation | 296 S.E.2d 602,250 Ga. 213 |
| Parties | GERON et al. v. CALIBRE COMPANIES, INC. et al. CALIBRE COMPANIES, INC. et al. v. GERON et al. |
| Court | Georgia Supreme Court |
A. Paul Cadenhead, Stephen E. O'Day, Hurt, Richardson, Garner, Todd & Cadenhead, Atlanta, for Richard P. Geron, Jr., et al. in nos. 38974 and 38975.
G. Conley Ingram, Peter M. Degnan, Alston, Miller & Gaines, Atlanta, Irma Glover, Marietta, William R. Bassett, Atlanta, for Calibre Companies, Inc., et al. in nos. 38974 and 38975.
Asa W. Candler, III, Marietta, for Richard P. Geron, Jr., et al. in no. 38975.
Warren O. Wheeler, Schreeder, Wheeler & Flint, Atlanta, for Calibre Companies, Inc., et al. in no. 38975.
In this case, the plaintiffs are suing to enjoin construction of a condominium development in the area of the Chattahoochee River Corridor. The proposed development is to be located on Columns Drive in Cobb County. The plaintiffs are Richard P. Geron, Jr.; Columns Drive Community Association, Inc. and Friends of the River, Inc. Included as defendants are Calibre Companies, Inc., and several affiliated corporations (Calibre); the Cobb County Board of Commissioners, and the chairman thereof; and the Atlanta Regional Commission (ARC).
On March 30, 1981, Calibre filed an application for a certificate of development authorizing construction of an 810-unit condominium development on 140 acres of land located partially within the Chattahoochee River Corridor. This application was filed under the provisions of the Metropolitan River Protection Act (Ga.L.1973, p. 128 et seq.; Ga.L.1975, p. 837 et seq.) See Pope v. City of Atlanta, 242 Ga. 331, 249 S.E.2d 16 (1978); Pope v. City of Atlanta, 240 Ga. 177, 240 S.E.2d 241 (1977). The application was rejected by ARC on the ground that it violated the Chattahoochee Corridor Study promulgated by ARC under § 4 of the River Act.
On June 11, 1981, Calibre filed another such application for a certificate of development. This application sought authorization for construction of a 188-unit condominium development on 44.2 acres of land within the Chattahoochee River Corridor. This application was also rejected. After some modifications were made in the proposed development, another application for development of the 188-unit condominium development on 44.08 acres was filed on June 23, 1981. This application was approved by ARC and forwarded to the Cobb County Board of Commissioners.
Public hearings on the application were held by the county commission in July, August and September of 1981. On September 8, 1981, the commission adopted a resolution approving Calibre's application for a certificate of development for the 188-unit condominium. However, the following day, the Chairman of the Cobb County Board of Commissioners mistakenly signed the earlier application for the 810-unit development.
On October 8, the plaintiffs filed a four-count complaint in the Cobb Superior Court, contesting the county commission's approval of Calibre's application for the 810-unit condominium development. On November 30, the superior court entered an order dismissing Counts 1, 3, and 4 of the plaintiffs' complaint on the ground that these counts of the complaint sought injunctive relief and the plaintiffs have an adequate remedy at law through appeal of the commission's order. The court ruled that the plaintiffs could proceed to appeal the county commission's decision under Count 2 of their complaint, on the ground that the commission acted arbitrarily or capriciously, or abused its discretion, in granting the certificate of development for the 810-unit condominium.
On November 24, the certificate authorizing the 810-unit development was revoked by the chairman of the county commission, and he approved the application authorizing the 188-unit development.
On December 11, the Cobb Superior Court issued an order enjoining Calibre from relying on the 810-unit development certificate, and the case was remanded to the county commission. On December 22, the county commission ratified the commission chairman's revocation of the 810-unit development certificate and his approval of the 188-unit development certificate. On December 23, the present complaint was filed. Like the prior complaint, the present complaint is couched in four counts, and the grounds for challenging the 188-unit development are the same grounds urged in the prior complaint for challenging the 810-unit development.
In Count 1, the plaintiffs argue that the condominium development and the county's issuance of a certificate of development therefor are in violation of the River Act and the Chattahoochee Corridor Study. In Count 2, the plaintiffs argue that the county acted arbitrarily and capriciously, and abused its discretion, in issuing the certificate of development because of, among other things, the risk of flooding in the area. In Count 3, the plaintiffs argue that the proposed development is in violation of Cobb County's erosion and sedimentation control ordinance and the flood protection ordinance of Cobb County. In Count 4, the plaintiffs argue that the proposed development will cause increased runoff, sedimentation, and flooding of plaintiffs' property and will result in siltation, sedimentation, and other pollution affecting nearby water supplies. Injunctive relief is sought in each count.
On March 26, 1982, the trial court entered an order granting the defendants' motion to dismiss Counts 1, 3 and 4 of the plaintiffs' complaint, on the ground that the plaintiffs have an adequate remedy at law to appeal from the adverse ruling of the Cobb County Board of Commissioners. Again, the trial court allowed the plaintiffs to proceed to trial on Count 2 of their complaint insofar as this count alleges that the county acted arbitrarily or capriciously, or abused its discretion, in issuing the certificate of development. However, after conducting a hearing on that question, the court on May 3, 1982, entered an order dismissing the plaintiffs' case on the merits on the ground that the plaintiffs have failed to establish by competent evidence the adoption of the Chattahoochee Corridor Study by Cobb County.
In case no. 38974, the plaintiffs appeal, complaining of the trial court's dismissals of the various portions of their complaint; they also complain of various evidentiary rulings made by the trial court during the hearing below, including the court's refusal to treat the appeal from the county's issuance of the certificate of development as a de novo investigation. In case no. 38975, the defendants cross-appeal, complaining of the trial court's failure to dismiss the plaintiffs' entire complaint on grounds of res judicata, estoppel by judgment, and failure of the plaintiffs to appeal the decision of the county commission to the superior court in a timely fashion. The defendants have also filed a motion to dismiss the plaintiffs' appeal to this court, on the ground that the plaintiffs failed to file an application to appeal.
It is true that subsections (a)(1) and (b) of Code Ann. § 6-701.1 do require an application to appeal decisions of the superior court reviewing, among other things, decisions of local administrative agencies. However, it has been held that a county commission is not an administrative agency. Kirton v. Biggers, 135 Ga.App. 416(3), 218 S.E.2d 113 (1975). We adhere to that ruling, notwithstanding the fact that it can be said that a decision of a county commission such as the one here is administrative in nature. See generally City of Ludowici v. Brown, 249 Ga. 857, 295 S.E.2d 90 (1982).
Section 4 of the River Act "permits a planning commission for a metropolitan area with a population of one million or more persons to develop a comprehensive plan for land and water use along stream corridors when a stream supplies forty percent or more of water for the metropolitan area." Pope v. City of Atlanta, 242 Ga., supra, at p. 331, 249 S.E.2d 16. Pursuant to this authority, ARC has developed the Chattahoochee Corridor Study. Id.
Section 5(a) of the Act states: "Pending adoption of the plan as to each political subdivision, it shall be unlawful for any person to erect, maintain, suffer or permit any structure, dam, obstruction, deposit, clearing or excavation in or on the stream corridor which will adversely affect the efficiency of or restrict the capacity of the water course or flood plain, appreciably increase runoff or flood heights, adversely affect the control, protection, allocation or utilization of the water and related land resources of the stream corridor, harmfully obstruct or alter the natural flow of flood waters, or harmfully increase erosion, siltation or water pollution...
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