Milani v. Irwin
| Decision Date | 09 March 2020 |
| Docket Number | A19A1981 |
| Citation | 354 Ga.App. 218,840 S.E.2d 700 |
| Parties | MILANI v. IRWIN et al. |
| Court | Georgia Court of Appeals |
Mark Howard Adelman, Savannah, for Appellant.
Donald D. J. Stack, Tyler Joseph Sniff, Atlanta, for Appellee.
Kathleen Irwin and Benjamin Seibel ("the Petitioners"), owners of real property in the Echo Lake subdivision, alleged that fellow subdivision property owner, Fred Milani, illegally cut down a large number of trees in the subdivision. Milani seeks review of the superior court’s order granting the Petitioners’ combined motion to sustain the writ of certiorari. Milani argues that (1) the Petitioners’ appeal to the DeKalb County Zoning Board ("the Board") was untimely; (2) the Petitioners lacked standing to appeal to the Board; (3) the Petitioners lacked standing to petition for writ of certiorari in the superior court for failure to meet the zoning ordinance requirements; (4) the Petitioners lacked standing to petition for writ of certiorari because the Board’s answer was not timely filed; and (5) the superior court erred by sustaining the petition for certiorari. For the reasons that follow, we affirm.
(Citations and punctuation omitted.) City of Dunwoody v. Discovery Practice Mgmt. , 338 Ga. App. 135, 138 (2), 789 S.E.2d 386 (2016). "In the appellate courts, the standard of review is whether there is any evidence supporting the decision of the local governing body, not whether there is any evidence supporting the decision of the superior court." (Citation and punctuation omitted.) Jackson County v. Earth Resources, Inc. , 280 Ga. 389, 391, 627 S.E.2d 569 (2006).
So viewed, the record shows that Milani, through his development company, acquired Lot 13 within the Echo Lake subdivision in an unincorporated portion of DeKalb County.1 Kathleen Irwin and Benjamin Seibel (collectively, the "Petitioners") own parcels of real property within the same subdivision. In 2011, Milani obtained permits to demolish the then-existing structure on Lot 13 to build a much larger residence. At the same time, Milani began clearing Lot 13, removing several trees within the footprint of the new construction.
In January 2012, Milani submitted plans to the County to build a new residence on Lot 13. Those plans showed approximately 80 trees on Lot 13 within the 75-foot County Buffer as of January 2012. In February 2012, the County gave "conditional" approval of a tree protection plan for construction of the new home, but that plan did not permit removal of any trees within the 75-foot County Buffer, as this would violate provisions of the DeKalb County Code.2
Between November 2012 and August 2015, Milani removed dozens of trees on Lot 13 from the flood plain and inner 50 feet of the County Buffer, in violation of DeKalb County Code §§ 14-44.1 (b) (1), 14.44.4 (d), and 14-39 (g) (10). Several of the trees were within the 25-foot State Buffer. Milani, however, did not obtain a stream buffer variance from the Georgia Environmental Protection Division ("EPD") until March 10, 2016.
In April 2015, the County Planning Director, Andrew Baker, notified Milani that the tree removal from within the County Buffer was illegal. Baker also requested that Milani submit a "Tree Planting Plan" within 15 days to restore the County Buffer. In February 2016, the County served Milani with a citation for "failure to submit tree planting plan." Milani did not submit a tree planting plan until March 29, 2016.
In May 2016, Milani applied for a development permit to restore the County Buffer and construct an approximately 350-foot long gabion basket wall (the "seawall") on Lot 13 on Echo Lake’s shoreline. The County initially denied Milani’s application for a development permit on August 23, 2016, but it later deemed the application to be acceptable on October 13, 2016, and also concluded that Milani did not need a building permit for the seawall because retaining walls of no more than four feet in height were exempt from the County’s permit ordinances.
On November 8, 2016, the Petitioners appealed Baker’s decision to the Board, and the Board affirmed the decision with regards to both the tree replanting plan and the seawall. In denying the Petitioners’ appeal, however, the Board mandated that Milani’s construction of the seawall could not encroach upon the County 50-foot stream buffer.
On March 10, 2017, the Petitioners filed a verified petition for a writ of certiorari in superior court3 against Baker, the Board, and DeKalb County (collectively, the "County Defendants"), challenging the sufficiency of the replanting plan and the Board’s determination that the seawall did not require a building permit. On the same day, the superior court clerk ordered DeKalb County and the Board to send all of the documents that related to the petition within 30 days after the service of the writ.
The County Defendants subsequently filed a motion to dismiss the Petitioners’ petition, arguing that the Petitioners failed to ensure that the Board’s answer was timely filed with the clerk in accordance with OCGA § 5-4-7. The superior court denied the County Defendants’ motion to dismiss the Petitioners’ certiorari petition, concluding that the Petitioners acted with sufficient diligence in requesting the Board to file the answer, and the superior court granted the Petitioners’ motion to perfect the Board’s answer.
Meanwhile, in a separate action, Milani filed a petition for mandamus and declaratory relief against the Petitioners and the Board. After intervening in the Petitioners’ action, Milani petitioned for declaratory relief, arguing that the Board lacked jurisdiction over the Petitioner’s appeal because it was untimely under DeKalb Code Section 27-7.5.2 (B), that the Petitioners did not have standing to appeal the Board’s decision because they were not "aggrieved persons," and that the Board lacked authority to impose the condition that Milani could not encroach upon the County buffer.
Milani also intervened in the Petitioners’ action and filed a motion to dismiss their petition, arguing that the Petitioners’ appeal to the Board was untimely and that they did not have standing. The superior court entered an order denying Milani’s motion to dismiss, ruling that the Petitioners had standing to appeal before the Board because the Petitioners had easement rights to use Echo Lake, which is adjacent to Milani’s lot. The superior court also ruled that Petitioner Irwin, as a riparian owner directly across from Milani’s lot, had a special interest in protecting the views and historic character of Echo Lake.
The superior court entered a final order granting the Petitioners’ motion to sustain their writ of certiorari based on the determination that the Board erred in approving the disputed tree replanting plan under the applicable provisions of the DeKalb County code. The superior court further dismissed Milani’s action, concluding that the compromise condition placed by the Board on his construction of the seawall — that the construction not have the effect of eliminating the County Buffer — was lawful.4 The superior court ordered the County Defendants and Milani to jointly submit a revised tree planting scheme in compliance with the Tree Protection Ordinance ("TPO") within 30 days of the order. Milani filed an application for discretionary appeal, and we granted the application.5
1. First, Milani argues that the Petitioners’ appeal to the Board was untimely because the Petitioners did not file their application for appeal within 15 days of the Board’s action. We disagree.6
Here, the record shows that Milani’s development permit application was initially denied on August 23, 2016. Milani appealed the denial of his application on September 7, 2016. On October 13, 2016, the denial of Milani’s application was revised to include certain concessions, which were the subject of the Petitioners’ appeal. The revised denial also advised that a hearing would be held on the following day and that Baker intended to request a deferral to allow the parties additional time to review new information. At the hearing on the following day, Baker requested and was granted a 30-day deferral (until November 9, 2016) to review new information. On November 8, 2016, the Petitioners filed their appeal to the Board. Baker finally disposed of Milani’s appeal on November 9, 2016.
Accordingly, we conclude that Baker’s revised denial of Milani’s development permit application on October 13, 2016, was an inherently tentative and non-final decision such that the Petitioners would not have been required to file their application for appeal within 15 days of that decision.7 See Quarters Decatur, LLC v. City of Decatur , 347 Ga. App. 723, 728 (3), 820 S.E.2d 741 (2018) (...
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