Worley v. City, A10A0330.

• Decision Date: 09 July 2010
• Docket Number: No. A10A0330.,A10A0330.
• Citation: 699 S.E.2d 94,305 Ga.App. 118
• Parties: WORLEYv.PEACHTREE CITY.
• Court: Georgia Court of Appeals

305 Ga.App. 118

699 S.E.2d 94

WORLEYv.PEACHTREE CITY.

No. A10A0330.

Court of Appeals of Georgia.

July 9, 2010.

Page Perry, for appellant.

David J. Worley, pro se.

ADAMS, Judge.

On May 3, 2007, Peachtree City annexed and rezoned two tracts of land in western Fayette County using the 100 percent method. See OCGA § 36-36-21.¹ On June 4, 2007, city resident David Worley filed a petition for declaratory and injunctive relief. In his petition as first amended he argued, among other things, that the rezoning did not occur in accordance with the Zoning Procedures Law, OCGA § 36-66-1 et seq., and that the annexation was ultra vires because it created an “unincorporated island” completely surrounded by Peachtree City in violation of OCGA § 36-36-4. On the latter count, Worley sought to enjoin the city from acting on the annexation and from allowing development or taking any other action with regard to the annexed property. On November 6, 2008, the city annexed the alleged unincorporated island.

On January 13, 2009, the trial court granted a motion to dismiss Counts 2 through 6 of Worley's amended complaint, which addressed the zoning and other issues, on the ground that Worley did not have standing and other reasons. The court held that Worley did have standing on Count 1, which challenged the annexation; it became his sole remaining claim.

On the day before the April 1, 2009 hearing on cross-motions for summary judgment, Worley amended Count 1 to allege that the May 3 annexation created second and third unincorporated islands in violation of a different subsection of OCGA § 36-36-4; he alleged that the annexation resulted in two other tracts of land becoming totally surrounded by two municipalities-Peachtree City and the City of Tyrone. On April 12, 2009, the trial court granted summary judgment in favor of the city on the original unincorporated island count on the ground that it was moot as a result of the annexation of that island. The court refused to consider Worley's second amended complaint and the attachments thereto on the ground that they were filed too late in connection with his motion for summary judgment. Worley filed a notice of appeal; he challenges the annexation, not the zoning issues that were dismissed.² We reverse and remand for entry of summary judgment in favor of Worley.

1. The appellee moves this Court to dismiss the appeal. It contends the underlying subject matter of the appeal is zoning and that therefore an application for a discretionary appeal is required because zoning appeals are considered appeals from decisions of the superior courts reviewing decisions of state and local administrative agencies. OCGA § 5-6-35(a)(1); Trend Dev. Corp. v. Douglas County, 259 Ga. 425(1), 383 S.E.2d 123 (1989); Shockley v. Fayette County, 260 Ga. 489, 492, 396 S.E.2d 883 (1990) (Hunt, J., concurring). See also O.S. Advertising Co. of Ga. v. Rubin, 267 Ga. 723, 724(1), 482 S.E.2d 295 (1997).

On the other hand, in cases challenging annexation by local governments, both this Court and the Supreme Court routinely accept direct appeals. See, e.g. Cherokee County v. City of Holly Springs, 284 Ga. 298, 667 S.E.2d 78 (2008) (challenge to annexation); Calloway v. City of Fayetteville, 296 Ga.App. 200, 674 S.E.2d 66 (2009) (challenge to annexation in which zoning also occurred); City of Buford v. Gwinnett County, 262 Ga.App. 248, 585 S.E.2d 122 (2003) (same); City of Smyrna v. Adams, 255 Ga.App. 453, 565 S.E.2d 606 (2002) (challenge to annexation). And if the underlying subject matter of an appeal involves claims with independent standing, one of which is subject to the discretionary appeal statute and one of which is directly appealable, a party may file a direct appeal and the appellate courts have jurisdiction to address both claims. Zitrin v. Ga. Composite State Bd. of Med. Examiners, 288 Ga.App. 295, 297(1), 653 S.E.2d 758 (2007); Smith v. Dept. of Human Resources, 214 Ga.App. 508, 448 S.E.2d 372 (1994). See also Martin v. Williams, 263 Ga. 707, 438 S.E.2d 353 (1994) (appellate court may consider order that is not directly appealable in conjunction with an order that is). Compare Powell v. City of Snellville, 275 Ga. 207, 209(1), 563 S.E.2d 860 (2002) (“The inclusion in the appeal to superior court of prayers for relief other than from the zoning decision does not transform the case into one in which a direct appeal is authorized.”) (emphasis supplied).

Regardless of Worley's challenge to the zoning claims, he could have challenged the city's annexation independently, and therefore his annexation claim has independent standing for purposes of appeal. Thus Zitrin is controlling, and we have jurisdiction of this appeal. Compare City of Byron v. Betancourt, 242 Ga.App. 71, 528 S.E.2d 841 (2000) (assuming but not deciding that direct appeal was proper in case challenging both annexation and zoning).

2. Worley contends the court erred by granting summary judgment in favor of the city because his claim regarding the annexation was not mooted by the city's second annexation on November 6, 2008. Rather, he argues, the first annexation on May 3, 2007 was void and could not be revived by the city's subsequent act because that act did not include re-annexation of the original tracts. We agree.

(a) It is undisputed that prior to the May 3 annexation, the land at issue was located entirely within unincorporated Fayette County and that it was bounded on the west by Coweta County, on the north by the City of Tyrone, and to the east and south by Peachtree City. It is also undisputed that the May 3 annexation left one tract of land (referred to by the parties as the Hardy and Kidd Tracts) entirely surrounded by Peachtree City. See OCGA § 36-36-4. Finally it is undisputed that the city annexed that tract on November 6, 2007. The trial court held that Worley's case was mooted by the November 6 annexation. The court reasoned, “because the Hardy and Kidd Tracts are no longer an unincorporated island, there is nothing that need be remedied by the Court.”

(b) To determine whether the November 6 annexation rendered Worley's challenge to the May 3 annexation moot, we start with the May 3 annexation. OCGA § 36-36-4(a)(1) prohibits the formation of unincorporated islands. More specifically, and relative to Count 1 of Worley's complaint as first amended, it prohibits annexation that would result in “the creation of an unincorporated area with its aggregate external boundaries abutting the annexing municipality.” OCGA § 36-36-4(a)(1). The May 3 annexation left the Hardy and Kidd tracts entirely surrounded by Peachtree City, and thus that annexation violated the statute.

Peachtree City presents one argument to support its claim that the annexation did not violate the statute. The city correctly points out that since 1991, a municipality has been authorized to annex all or part of an unincorporated island that preexisted the 1991 legislation outlawing the creation of unincorporated islands even if the result is another unincorporated island. See Calloway, 296 Ga.App. at 201-202(1), (2), 674 S.E.2d 66; OCGA § 36-36-90 et seq. The only issue here is whether the preexisting unincorporated area at issue in this case meets the definition of a preexisting unincorporated island.

As shown above, it was bordered by two cities and a county, and it is undisputed that it existed this way prior to 1991. OCGA § 36-36-92 provides that municipalities may annex “unincorporated islands.” The term “unincorporated island” is defined in the same Article to mean unincorporated areas in existence on January 1, 1991 “with its aggregate external boundaries abutting the annexing municipality ... [or] abutting any combination of the annexing municipality and one or more other municipalities.” OCGA § 36-36-90(3)(A), (B).³ Obviously the tract in question not only abutted two municipalities, it also abutted Coweta County.

Peachtree City contends the term “aggregate external boundaries” is defined in such a way that the tract in question can be considered a preexisting unincorporated island. OCGA § 36-36-91 provides as follows:

For the purposes of determining the aggregate external boundary of an unincorporated area, all real property in the

area to be annexed, which at the time the annexation procedures are initiated, (1) is unincorporated, and (2) is in the same county as the annexing municipal corporation, shall have its area included in determining the aggregate external boundary.

(Emphasis supplied.) Peachtree City argues that the highlighted words broaden the definition of unincorporated island found in OCGA § 36-36-90(3) such that an existing unincorporated island may have a county line as its border. Worley argues that, under Peachtree City's reasoning, all of south Fulton County would be considered a preexisting unincorporated island. And Atlanta would be authorized to create new unincorporated islands without limit in that area.

We fail to see how OCGA § 36-36-91 can be read to override the clear language of OCGA § 36-36-90(3) which, relevant to this case, only allows annexation of preexisting unincorporated islands if they are “abutting the annexing municipality” or “abutting any combination of the annexing municipality and one or more other municipalities.” “[I]f some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned.” (Citations omitted.) Morton v. Bell, 264 Ga. 832, 833, 452 S.E.2d 103 (1995). We conclude that the original tract of land in this case was not a preexisting unincorporated island, and therefore, the May 3 annexation created an unincorporated island, which was prohibited by OCGA § 36-36-4(a).

(c) Because the May 3 annexation violated a State statute, it exceeded the municipality's power and is therefore ultra vires and void. See Dept. of Transp. v. City of Atlanta, 255 Ga. 124, 129(2)(d)(i), 337 S.E.2d 327 (1985); Brown v. City of...