Glynn County v. Palmatary, 36964
| Decision Date | 13 May 1981 |
| Docket Number | No. 36964,36964 |
| Citation | 277 S.E.2d 665,247 Ga. 570 |
| Parties | GLYNN COUNTY, Georgia, et al. v. G. Carroll PALMATARY et al. |
| Court | Georgia Supreme Court |
Thomas J. Lee and Jennifer L. MacMillan, Brunswick, for Glynn County, Georgia, et al.
H. Lamar Mixson, Trotter, Bondurant, Griffin, Miller & Hishon, Atlanta, James B. Gilbert, Jr., Bennet, Gilbert, Gilbert, Whittle, Harrell & Gayner, Brunswick, for G. Carroll Palmatary et al.
This is an appeal from a declaratory judgment and subsequent writ of mandamus entered against appellants Glynn County, its Board of Commissioners, the Building Official, and the Brunswick-Glynn County Joint Planning Commission.
Appellees Palmatary, Hutto, Mazo, Freeman and Edwards owned certain property located on St. Simons Island known as Tract III of the Triangle Planning Area. In 1973, appellees' predecessors in title submitted a Master Plan to the County Commission amending the Glynn County Zoning Ordinance so as to rezone the Triangle Area to Planned Development General (PD-G). 1 The County Commission approved this amendment, and a copy of the Master Plan containing a zoning reference map along with certain charts is included in this record.
In 1978, the individual appellees entered into an option contract with Charter Medical Corporation and its subsidiary Charter Medical-St. Simons, Inc. (hereinafter collectively referred to as "Charter"). Charter is in the business of owning and operating hospitals and health care facilities around the United States. Charter had previously determined that there was sufficient need in the St. Simons area to justify the construction of a sixty-bed psychiatric hospital. Following this determination, appellees contacted the Executive Director of the Planning Commission Edward Stelle in an effort to assure themselves that Tract III was properly zoned for the construction of a hospital. Stelle informed appellees in unequivocal terms by letter, that Tract III was zoned OC and that a hospital was a conditional use under that classification. Appellee Palmatary testified that Stelle also assured him orally that Tract III was zoned OC. Based on these assurances, Charter entered into the option contract and proceeded to secure the necessary state and federal approval for the construction of its hospital.
Appellees applied to the Planning Commission for site plan approval. The Planning Commission took the position during its deliberation over appellees' application that Tract III was not zoned OC. Instead, the Commission decided that the only use for which Tract III was appropriately zoned was as a "small residential scale office park related to resident services and employment opportunities," a use listed in the Master Plan. Considering the site plan approval application as a proposed amendment to the Zoning Ordinance, the Planning Commission denied the application. Thereafter, the County Board of Commissioners also voted to deny the application.
Appellees brought this suit seeking a writ of mandamus, a declaratory judgment, and an injunction against appellants from any further interference with appellees' proposed construction of the hospital. The trial court, after a full hearing, entered a declaratory judgment on May 14, 1980, holding that appellees had a vested right to construct the hospital and ordered appellants to process appellees' site plan approval application within thirty days from the date of the order.
On June 11, 1980, appellants filed a Notice of Appeal from the May 14 order. Appellants believed that the Notice of Appeal served to supersede the May 14 order and suspended their processing of appellees' application.
On June 25, 1980, appellees filed a motion for a writ of mandamus. Following a hearing held on this motion on July 1, 1980, a writ of mandamus was issued on July 9, 1980, directing appellees to process appellees' application as expeditiously as possible but in no case later than August 7, 1980. 2
Appellees filed a Notice of Appeal from this order and filed a Motion for Supersedeas in this court. The Motion for Supersedeas was granted on July 17, 1980, but vacated three days later. Consequently, on August 7, 1980, appellants approved, involuntarily, appellees' site plan application. Appellants enumerate six alleged errors on appeal.
1. Appellees have moved to dismiss this appeal as moot on the basis that the relief appellees originally prayed for has now been granted in that their site plan application has been approved.
We agree with appellants though that the fundamental dispute between these parties is the zoning classification of Tract III. The trial judge held that "the permitted land use for (Tract III) was those uses permitted under office commercial, as defined in the Zoning Ordinance." Appellants contend that if this finding is reversed then appellees will not be entitled to the issuance of additional permits required before the hospital can actually be constructed. Additionally, appellants took every step in their power to have the trial court's May 14 order superseded pending appeal, including requesting a stay from the trial court and moving this court for supersedeas. See Wilkerson v. Chattahoochee Parks, 244 Ga. 472, 260 S.E.2d 867 (1979). This is not a case as was Carter v. Burson, 229 Ga. 748, 749, 194 S.E.2d 472 (1972), wherein we held that the appeal was moot since "no further judgment or order of this court in this appeal can in any wise affect the rights of the parties."
Appellees' motion to dismiss the appeal as moot is therefore denied.
2. The April 7, 1980, hearing held by the trial court was a mandamus nisi hearing. Appellants had filed a written demand for a jury trial. At the hearing, appellees presented their evidence, but appellants instead of presenting any evidence asked the trial court to rule on the issues as a matter of law. Appellants contend now that issues of fact existed that should have been resolved by a jury. See Code Ann. § 110-1103.
We agree with the appellees that the basic issue presented to the trial court at the mandamus nisi hearing was one of statutory interpretation of the subject zoning laws, and their constitutionality. Such a determination is a function for the court and not a jury. See Guhl v. Davis, 242 Ga. 356, 249 S.E.2d 43 (197...
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