Hollberg v. Spalding County

• Decision Date: 05 October 2006
• Docket Number: No. A06A0937.,A06A0937.
• Citation: 281 Ga. App. 768,637 S.E.2d 163
• Parties: HOLLBERG v. SPALDING COUNTY et al.
• Court: Georgia Court of Appeals

281 Ga. App. 768

637 S.E.2d 163

HOLLBERG v. SPALDING COUNTY et al.

No. A06A0937.

Court of Appeals of Georgia.

October 5, 2006.

COPYRIGHT MATERIAL OMITTED

Gilbert M. Taylor, Atlanta, for Appellant.

Newton M. Galloway, Smith, Galloway, Lyndall & Fuchs, John C. Torri, Galloway & Lyndall LLP, Griffin, for Appellee.

MIKELL, Judge.

We granted the application of Benjamin Sinclair Hollberg ("Sinclair")¹ for discretionary appeal of the order granting summary judgment to Spalding County, Spalding County Board of Commissioners ("Board"), and Wilma A. Hollberg ("Wilma"), to review the trial court's ruling that Sinclair lacks standing to challenge the approval of a special exception to a local zoning ordinance permitting a residential development on Wilma's adjoining property. We affirm, but clarify that a devisee of real property may have standing to challenge a zoning decision even though his title is inchoate.

Wilma, who is married to Sinclair's brother, Douglas, owns 142.98 acres of land contiguous to property currently owned in fee simple by Sinclair. Sinclair's property, which includes a 20-acre tract and a 92-acre tract, is known as "Double Cabins Plantation" and has been in the Hollberg family since 1839. The home place was built in 1842 and is listed in the National Register of Historic Places. In 1994, Sinclair's mother, Emma Walker Hollberg, began operating a bed and breakfast in the main house on the smaller tract. Guests of the bed and breakfast observed the wildlife and hunted deer and turkey on the plantation.

Emma died on September 30, 2003, having devised a life estate in the 20-acre tract to Sinclair with the remainder to Sinclair's son. Emma devised the 92-acre tract jointly to Sinclair and a second brother, Jerry Hollberg. Sinclair and Jerry were named co-executors of Emma's estate, but disputes arose, and an administrator was appointed to settle the estate. The administrator assented to the devise of the smaller tract in April 2005, and Sinclair's son quitclaimed his interest in the property to Sinclair. Sinclair purchased Jerry's interest in the larger tract, and the administrator deeded the tract to Sinclair in March 2005. Sinclair resides with his family in the main house.

Wilma purchased her property in 1998, and it is unrelated to the estate. On February 3, 2004, Wilma entered into an agreement to sell her acreage to developer/defendant Next Generation Properties, LLC, with the sale being contingent upon rezoning of the parcel from AR-1 (agricultural and residential) to R-4 (single-family residential).² Next Generation, acting as Wilma's agent, then filed two applications with the County: an application to rezone the property to R-4 and an application for a special exception to allow one-acre lots in the R-4 district. The county planning commission held a hearing on March 30, 2004. Sinclair was present and voiced objections, citing adverse environmental and quality of living consequences. The planning commission recommended approval of the rezoning application, with certain conditions. The Board then held a hearing on April 22, 2004, at which Sinclair again objected, and unanimously approved rezoning Wilma's property, but to classification R-2 with conditions, instead of R-4 as requested.³ Next Generation had proposed developing a residential subdivision on the 143 acres with 95 minimum one-acre lots, with the remainder dedicated to green space and buffers, but no action was taken on the special exception. The county adopted a resolution amending the local zoning ordinance and official county zoning map to reflect the change from R-4 to R-2. Sinclair did not appeal the county's action.

The hearing on the application for the special exception was held before the Board on September 23, 2004. Noting that the property already had been rezoned to R-2 with conditions, the Board approved the application on a 3-2 vote, with several conditions, including minimal disturbance of the land, with no clear-cutting permitted.

On October 25, 2004, Sinclair filed in superior court a petition for a writ of certiorari or, in the alternative, a complaint for declaratory judgment, naming the County and Next Generation as defendants and the Board as respondent. The petition alleged four counts. In Count 1, Sinclair sought review of the Board's grant of the special exception, alleging, inter alia, that it was void because it was based upon a rezoning decision issued pursuant to the local ordinance governing amendments to the official zoning map,⁴ which, Sinclair argued, was void because it contained no standards governing the exercise of zoning power, as required by OCGA § 36-66-5(b). The remaining counts requested that the ordinance, the Board's April 22, 2004, approval of the rezoning request, and the Board's grant of the special exception be declared null and void. The County and the Board filed an answer. The trial court granted Wilma's motion to intervene as a defendant, and she filed an answer. Next Generation did not file an answer, and the court granted default judgment against it.

Following discovery, the remaining parties filed cross-motions for summary judgment. At the hearing held on the motions, Sinclair conceded that he had not timely appealed the Board's April 22, 2004, rezoning decision pursuant to Section 418 of the UDO, which states: "If the [Board] takes an action which the developer or other aggrieved party believes to be contrary to law, that action may be appealed to the Spalding County Superior Court. Such an appeal must be filed within thirty (30) days of the date on which the action of the [Board] was taken." The parties addressed the issue of whether Sinclair had standing to challenge the special exception pursuant to the substantial interest-aggrieved citizen test applicable to neighboring property owners: "[T]here [are] two steps to standing: First, ... a person claiming to be aggrieved must have a substantial interest in the zoning decision, and second, ... this interest [must] be in danger of suffering some special damage or injury not common to all property owners similarly situated."⁵

Based on the evidence tendered in support of each motion for summary judgment and the argument of counsel at the hearing, the trial court granted the motions filed by the County and the Board and by Wilma (hereinafter, "appellees") and denied Sinclair's motion. Specifically, the court found that Sinclair had appealed from the Board's decision to approve the special exception; that Sinclair had not demonstrated compliance with the substantial interest-aggrieved citizen test, so that he lacked standing to challenge the Board's approval of the special exception; and that Sinclair had not shown that the ordinance and procedures used by the County to exercise its zoning power violated the Zoning Procedures Law (ZPL), OCGA § 36-66-1 et seq. This discretionary appeal followed.

1. (a) Declaratory judgment. As noted above, it is undisputed that Sinclair failed to appeal the Board's rezoning of Wilma's property from AR-1 to R-2 within 30 days of that action, as required by Section 418 of the UDO. Sinclair nevertheless argues that he has standing to seek a declaratory judgment to challenge the rezoning. Pretermitting whether he has waived this argument by failing to obtain a ruling thereon,⁶ this contention is meritless.

"In order to obtain a declaratory judgment, a plaintiff must show that he is in a position of uncertainty or insecurity because of a dispute and of having to take some future action which is properly incident to his alleged right, and which future action without direction from the court might reasonably jeopardize his interest."⁷ Sinclair argues that he is in a position of uncertainty as to whether the zoning of Wilma's property is AR-1 or R-2. But there is no uncertainty about the zoning classification. The Board rezoned the property by a unanimous vote on April 22, 2004, and the decision was not timely appealed by any party. Sinclair may not avoid the requirement of filing a timely appeal by seeking a declaration of rights that already have accrued.

Moreover, Head v. DeKalb County,⁸ upon which Sinclair relies, does not support his position. In that case, the process by which a rezoning was accomplished was called into question due to the composition of the DeKalb County Board of Commissioners ("BOC"), with the county attorney ultimately declaring that the BOC had approved the rezoning at issue.⁹ Adjoining property owners filed suit, seeking a declaratory judgment that the effect of the BOC's vote had been to deny, rather than approve, the rezoning.¹⁰ The trial court granted summary judgment to the owner of the rezoned property, holding that the suit was an appeal of a rezoning action and, as such, was time-barred because it was filed more than 30 days after the decision.¹¹ This Court reversed, holding that the suit was a proper declaratory judgment action because the plaintiffs were not appealing the BOC's decision or seeking to reverse it. Rather, they were seeking a declaration that the BOC did not rezone the property.¹² In the instant case, however, Sinclair is dissatisfied with the Board's decision to rezone the adjacent property. It was incumbent upon him to file a timely appeal if he wished to challenge the Board's decision on the merits.¹³ Having failed to do so, Sinclair is precluded from attacking the April 22, 2004, decision.

(b) Compliance with the ZPL. In his second enumerated error, Sinclair argues that the Board's April 22, 2004, rezoning decision is invalid because Section 414 of the UDO fails to comply with the ZPL. This argument fails because it is time barred, as any challenge to the rezoning was required to be raised within 30 days. Furthermore, the trial court erred to the extent it considered this argument. Finally, we are not persuaded by Sinclair's argument that, under the circumstances presented in this case, Georgia law permits a party to...