Saik v. Brown

• Decision Date: 25 June 2020
• Docket Number: A20A0777
• Citation: 355 Ga.App. 849,846 S.E.2d 132
• Parties: SAIK et al. v. BROWN et al.
• Court: Georgia Court of Appeals

355 Ga.App. 849

846 S.E.2d 132

SAIK et al.

v.BROWN et al.

A20A0777

Court of Appeals of Georgia.

June 25, 2020

Miles Hansford & Tallant, Kevin J. Tallant, Jonah B. Howell, for appellants.

Teague & Chambless, J. Stuart Teague, Jr., Keisha L. Martin Chambless, for appellees.

Hodges, Judge.

This appeal concerns a dispute between neighbors Jeffrey S. Saik and Robin W. Saik, on the one hand, and Eric Brown and Alice Brown on the other. After the Browns subdivided their property, the Saiks sought a declaratory judgment concerning the validity of a subdivision plat and to partition a jointly owned access driveway so as to give the Saiks sole ownership of the access. The trial court granted summary judgment to the Browns on the Saiks’ petition for declaratory judgment, finding that the Saiks’ claims were barred by their failure to exhaust their administrative remedies. The trial court also granted summary judgment to the Browns and denied it to the Saiks on the Saiks’ partition claim. The Saiks appeal both orders, and for the reasons contained herein, we affirm.

We apply a de novo standard of review to an appeal from a grant of summary judgment and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. A defendant may obtain summary judgment by showing an absence of evidence supporting at least one essential element of the plaintiff's claim.

(Citation omitted.) Kennestone Hosp. v. Harris , 285 Ga. App. 393, 646 S.E.2d 490 (2007).

So viewed, the facts demonstrate that the Browns and the Saiks own neighboring property which shares a single, roughly 25-foot-wide, access driveway (the "Access") that connects their lots, as well as one other lot, to Majors Road in Forsyth County. The Saiks and the Browns each owned a one-half undivided fee simple interest in the Access, and the Browns also possess an easement over the Access.

In 2018, the Browns submitted plans to the Forsyth County Department of Planning and Development (the "Department") seeking to subdivide their lot from a single lot into three lots. The Department approved the subdivision plats on May 18, 2018 pursuant to the Forsyth County Unified Development Code (the "UDC"). All three of the Brown lots will rely on the Access for ingress and egress.

In June 2018, the Browns retained a realtor to list their three lots. Around June 6, 2018, the realtor erected a "for sale" sign, and on June 10, 2018, he held an open house at the Browns’ home for all three lots. At that open house, the realtor spoke with Jeffrey Saik about the plats. Mr. Saik initially indicated to the realtor that he might be interested in purchasing the Browns’ property, but ultimately withdrew his interest. The Browns entered purchase and sale agreements for all three lots, but subsequently the Saiks filed the instant lawsuit and a lis pendens, and all of the sales fell through.

The Saiks’ original complaint sought a declaration concerning the validity of the subdivision plat due to its alleged non-compliance with the UDC, the ability of the Browns to convey easement rights over the Access without the Saiks’ consent, and whether the increased traffic will overburden the Access. It also sought interlocutory and permanent injunctive relief and attorney fees. The Browns moved for summary judgment on the Saiks’ original complaint.

After the trial court held a hearing on the Browns’ motion, but before the trial court ruled, the Browns transferred the ownership of the two vacant lots to two recently created LLCs, Majors2, LLC and Majors3, LLC (the "Majors Entities"). The Browns also deeded to the Majors Entities a 1/6 interest each in title to the Access, while retaining a 1/6 interest for the lot with their home on it, and conveyed an easement across each of the vacant lots and the Access.

Shortly thereafter, and apparently without realizing the change of ownership in the two vacant lots, the Saiks amended their complaint to add a claim for equitable partition wherein the Saiks intended to consolidate ownership of the Access in themselves. Both parties moved for summary judgment on the amended complaint. Ultimately, the trial court granted the Browns summary judgment on both the complaint and the amended complaint, and the Saiks now appeal.

1. The Browns have moved to dismiss this appeal on the ground that the Saiks were required to file an application for discretionary review. They argue that because the underlying subject matter involves an administrative decision, the Saiks could only appeal pursuant to OCGA § 5-6-35 (a) (1) (application required for appeals from decisions of the superior courts reviewing decisions of state and local administrative agencies). We disagree.

The trial court granted the Browns summary judgment on the Saiks’ amended complaint for partition of the Access. This was a final order, and the Saiks filed a timely notice of appeal from this ruling. The order granting summary judgment on this claim is directly appealable. See OCGA § 9-11-56 (h). Further, to the extent the Saiks also seek review of the prior summary judgment order, pursuant to OCGA § 5-6-34 (d),

all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed ... without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere.

Accordingly, this Court has jurisdiction to hear this appeal, and the Browns’ motion to dismiss this appeal is therefore denied.

2. The Saiks contend that the trial court erred in granting the Browns summary judgment on their original complaint for declaratory judgment and injunctive relief due to a failure to exhaust administrative remedies.¹ We disagree.

It is well established that

[t]he general rule is that before a party seeks redress in the courts regarding the application of local regulation to property, it must apply to the local authorities for determination of matters such [as approving a subdivision plat], because requiring exhaustion of administrative remedies prevents unnecessary judicial intervention into local affairs and promotes judicial economy because local authorities, unlike the court, have the power to grant the relief sought.

(Citation and punctuation omitted.) Elbert County v. Sweet City Landfill, 297 Ga. 429, 433 (1), 774 S.E.2d 658 (2015).

Here, in relevant part, Section 5-3.4 of the UDC provides that "[t]he [Director of Planning and Community Development of Forsyth County] shall have the power to approve minor subdivision plats which meet the standards of the Georgia Plat Act for recordation and the provisions of this Code under the applicable provisions of this Code."² The Saiks correctly point out that this provision, by its plain language, provides no opportunity for notice or objection by the public. Further, Section 5-3.5 of the UDC states that

[t]he [D]epartment is the administrative agency charged with the administration of this Code and may therefore establish such rules and procedures as may be necessary, including but not limited to administrative procedures for the filing of applications for amendment to the official zoning map of Forsyth County (i.e., rezoning requests), conditional use permits, variances, and other applications for development approval. The [Director of the Department] is hereby authorized to interpret the provisions of this Code when warranted and appropriate.

Moreover, if any person wishes to challenge a decision by the Director, Section 8-7.2 of the UDC provides that

[a]ppeals to the Zoning Board of Appeals may be taken by any person aggrieved by any decision of the [Director of the Department] or other official ... in the administration or interpretation of this Code or other county ordinances granting jurisdiction of the Zoning Board of Appeals.

Appeals of administrative decision applications shall be made within thirty (30) days of the date of the decision or action being appealed. The application shall be filed in accordance with the public hearing schedule adopted by the Zoning Board of Appeals, and the director shall schedule the matter to be heard on the next available hearing date.

Here, the Department approved the Browns’ subdivision plat on May 18, 2018, and the record contains uncontroverted evidence that Jeffrey Saik learned of the existence of the newly approved plat on June 10, 2018. Although the Saiks contend they did not know the date the plat was approved, and thus did not know their deadline to appeal, they learned of the plat in time to timely appeal. Importantly, however, the Saiks made no attempt whatsoever to comply with the administrative procedures contained within the UDC for challenging the subdivision plat. The Saiks point to no authority standing for the proposition that they were entitled to ignore the administrative procedures of the UDC, except to say that the exclusion of a notice requirement prior to approval of a minor subdivision plat deprives them of due process. This is, in effect, a challenge to the constitutionality of the minor subdivision plat approval process contained in Section 5-3.4.

Issues concerning the constitutionality of land development determinations must be raised before the body having the authority to make such determinations. See State Bd. of Equalization v. Trailer Train Co. , 253 Ga. 449, 320 S.E.2d 758 (1984) ("We have required litigants to raise the constitutionality of applicable zoning classifications before that body having authority to rezone."); see also Sweet City Landfill , 297 Ga. at 433 (1), 774 S.E.2d 658.

Here, to exhaust their administrative remedies, the Saiks were required to appeal the approval of the minor subdivision plat pursuant to the UDC and, if such appeal was rejected as untimely pursuant to the UDC, to raise their...