These appeals arise out of the same trial court case and involve common issues. The Stuttering Foundation, Inc. ("Foundation") is the tenant of office space in a commercial development in Glynn County that is owned by Lucas Properties Holdings III, LLC ("Lucas"). In September 2015, Lucas filed with the appropriate Glynn County agency an application for rezoning of the property for the purpose of obtaining authority to construct an addition to the rear of one of the existing buildings in the development, the building in which the Foundation leases its office. It also sought approval of a site plan for the proposed construction. Both were approved on March 17, 2016.
For various reasons, the Foundation opposed the new development, and on April 15, 2016, the Foundation filed a petition for judicial review of the rezoning application and Site Plan, or in the alternative, for mandamus reversing the County's approval.
Case No. S17A0405
1. First, we address the County's assertion that this appeal should be dismissed because the Foundation failed to follow the requisite interlocutory appeal procedure. The County argues that the trial court order granting the County's motion to dismiss was not a final order since it did not adjudicate all the claims against the multiple parties in the case, nor did it contain an express determination of finality with respect to the County as required by OCGA § 9-11-54 (b) in order to make the order one that is final and immediately appealable. But the assertion that the trial court order is not immediately appealable as a final order pursuant to OCGA § 5-6-34 (a) (1) is irrelevant. The order also dismissed the Foundation's claim for mandamus relief, and therefore was, at the time the notice of appeal was filed, immediately and directly appealable to this Court pursuant to OCGA § 5-6-34 (a) (7). All other judgments and rulings raised on appeal are thus properly before this Court. See OCGA § 5-6-34 (d).
2. The Foundation states that it appeared at the public hearing on Lucas's application for rezoning and presented evidence and argument opposing the application. When the County approved the application, the Foundation then filed its petition in the superior court. In the petition, the Foundation alleged the application for rezoning should have been denied due to various deficiencies in Lucas's application and because various details of the rezoning request did not comply with the applicable zoning ordinance and other regulations. The Foundation further asserted that the property is subject to easements and restrictive covenants created and recorded by the previous owner of the property, and that various details of the plan would violate the terms of these recorded easements and covenants and would thereby require the prior written consent of the owners of other lots within the tract covered by the easements
(a) The parties agree that the proper standard to apply when determining a party's standing to challenge a rezoning decision is the "substantial interest-aggrieved citizen" test.
(i) The Foundation's lease expressly states: "This Lease shall create the relationship of Landlord and Tenant between the parties hereto; no estate shall pass out of Landlord and this Lease shall create a usufruct only." Whether a lease passes an estate in land or merely a usufruct depends upon the intent of the parties, and in a case like the one now before us involving private parties,
(Citations and punctuation omitted.) Jekyll Development Assocs., L.P. v. Glynn County Bd. of Tax Assessors, 240 Ga.App. 273, 274 (1), 523 S.E.2d 370 (1999) (holding that an estate for years constitutes a taxable interest in land).
A lease that conveys a usufruct creates a right to possess and enjoy the use of real property, but it does not convey an estate or interest in real property. See OCGA § 44-7-1 (a). Consequently, the courts of this State have drawn distinctions between the rights and duties of a holder of a usufruct and those of a title holder. For example, a usufruct is not subject to ad valorem taxation pursuant to OCGA § 48-5-3. See Macon-Bibb County, supra, 262 Ga. at 119, 414 S.E.2d 635. As another example, because a tenant who holds a usufruct is not one who owns real property, or any interest in real property, that interest is not sufficient to satisfy the statutory requirements of OCGA § 44-9-40 (b) to authorize the tenant to seek an easement by necessity over adjacent property. See Read v. Georgia Power Co., 283 Ga.App. 451, 453, 641 S.E.2d 680 (2007). By comparison, in Hollberg v. Spalding County,
Those cases in which the Georgia appellate courts have found a zoning decision challenger to have a substantial interest in the zoning decision, which satisfies the first prong of the standing test, have all involved holders of vested or inchoate title to real property. See, e.g., DeKalb County v. Wapensky, supra, 253 Ga. at 49 (1), 315 S.E.2d 873; Brand v. Wilson, supra, 252 Ga. at 417 (1), 314 S.E.2d 192; Hollberg v. Spalding County, supra, 281 Ga. App. at 773 (2) (a), 637 S.E.2d 163. A number of cases have found a challenger who has no estate or interest in real property has no standing because he can show no substantial interest in the zoning decision. See, e.g., Miller v. Fulton County, 258 Ga. 882, 883 (1), 375 S.E.2d 864 (1989) (a husband who did not have an ownership interest in the property owned by his wife, which was allegedly injured
As the trial court noted, the terms of a lease may impose a duty on the landlord to seek or oppose a zoning decision in order to effectuate the intent of parties,
The Foundation cites case law from other jurisdictions to support its assertion that a tenant has standing to challenge a zoning decision. But the only cases cited involving a tenant are inapposite.
(ii) The Foundation's efforts to analogize its right to contest the County's decision to grant the property owner's request for rezoning of its property to the rights of a tenant in a condemnation proceeding are unavailing. A condemnation proceeding involves the constitutional right to fair compensation for a governmental entity's taking of private property for a public use. See Ga. Const. of 1983, Art I, Sec. III, Par. 1 (a) ("[P]rivate property shall not be taken ... for public purposes without just and adequate compensation being first paid."). In that context, the value of a tenant's contract right under a lease to possess and use the condemned property may constitute an additional
If Lucas exercises its right to develop its property in accordance with the new zoning decision and the approved site plan, and if by doing so Lucas impairs or destroys the value of the Foundation's usufruct interest, it is not without a remedy. Nothing prevents the Foundation from seeking damages from Lucas. The Foundation argues contract damages would not provide adequate relief because the rezoning decision could not be reversed in an action against the landlord and would remain in place. That is true, but it does not alter the fact that the Foundation has no standing to challenge the rezoning decision, as demonstrated by its petition. If a tenant can demonstrate its landlord has taken action that impairs its contractual rights, however, it may be able to recover damages from the landlord. See, e.g., Myung Sung Presbyterian Church, Inc. v. North American Assn. of Slavic Churches & Ministries, Inc., supra, 291 Ga. App. at 812 (3), 662 S.E.2d 745. The Foundation has a remedy for the damages it alleges it will suffer, but it lacks standing to pursue a reversal of the County's zoning decision.
(b) That is not to say that a tenant can never establish standing to challenge the rezoning of the property it leases. In fact, the Foundation asserts that additional grounds beyond its mere status as a tenant of the subject property exist to establish its standing in this case. The Foundation asserts it is a beneficiary of the recorded easements and restrictive covenants ("Declarations") that burden Lucas's property, and that its interest in the Declarations will be harmed if Lucas makes the changes authorized by the County's decision. According to the Foundation, these circumstances create a substantial interest in the zoning decision sufficient to satisfy the first prong of the standing test, when considered in conjunction with its status as a tenant. But we are unpersuaded that the recorded Declarations contemplate short-term tenants of the owners of the burdened property to be beneficiaries of the easements and restrictive covenants created in that document.
Citing Lee v. City of Atlanta,
Citing Barton v. Atkinson,
In construing the intent of restrictive covenants, the courts look to the intent of the parties, "`which is to be collected from the whole instrument, and the circumstances surrounding its execution.'" (Citation omitted.) White v. Legodais, 249 Ga. 849, 849 (1), 295 S.E.2d 99 (1982). See also Charter Club on River Home Owners Assn. v. Walker, 301 Ga.App. 898, 900-901, 689 S.E.2d 344 (2009) (when construing restrictive covenants courts consider the entire document and not merely one provision in question). The restrictive covenants in this case are not ambiguous; the document was recorded by Lucas's predecessor in interest, and states that the easements and restrictions are for the benefit of that owner as well as the "subsequent owners and the successors in title" to the real property identified in the Declarations. The document states the Declarations "may be enforced by any Owner," and further states the Declarations may not be amended to modify the rights or obligations relating to any real property described in the document "without the prior written consent of each Owner and Mortgagee shown by the Public Land Records to have a recordable interest in such Tract unless otherwise provided herein." The clear intent of the recorded document is to create burdens and benefits for the owners and others with a recordable interest in the various tracts of the property covered by the Declarations. The Foundation is not a successor in title to any tract of the real property identified in the Declarations, and its short-term lease does not convey a recordable interest in the property.
Nevertheless, the Foundation argues that the terms of the Declarations in this case demonstrate the Foundation is an express third-party beneficiary. The recorded document is comprised of three parts, and after carefully examining the document to determine if the Foundation's assertion is supported by the record, we conclude it is not. Part I of the Declarations sets forth "Preliminary Matters." Section 1.2 in Part I, titled "Purpose and Binding Effect," states "it is intended and understood" that the burdens and benefits of the easements and restrictions are "binding upon and inure to the benefit of the record owner in fee simple (the `Owner') of each ... Tract and the heirs, executors, legal representatives, successors, successors-in-title, and assigns of such Owner." Section 1.4 (a) (viii) states that the Declarations may be enforced by any "Owner." Part II sets forth the easements created by the document. They include, among other things, driveway easements, parking easements, and drainage easements, each of which the Foundation claims will be violated by any construction authorized by the rezoning ordinance. Part III sets forth "Restrictions." Section 3.1 in Part III, titled "Effect
We reject the argument that this language in Section 3.1 reflects an intent to make a short-term tenant of a title holder a beneficiary of the restrictive covenants. As noted, Section 1.2 of the Declarations, addressing their "binding effect," clearly expresses the document's intent for the easements and restrictions to inure to the benefit of the record owners and their successors-in-title and those holding under them. The Foundation holds no interest in the title to the benefitted land. Its rights derive solely from its lease, which grants it only a license to use the leased premises pursuant to the lease's terms.
At other places in the Declarations the phrase "holding under" is used with regard to burdens imposed by the easements and restrictive covenants. For example, in the sections relating to easements for the use of garbage facilities, the owner of certain lots covered by the Declarations are obligated to pay certain other lot owners a share of the amount charged for the lease of a dumpster that is to be placed on the lots, but only during "such time as any building on [the identified lots whose owners are obligated to share dumpster rental charges are] physically occupied by Owner or any Person holding under such Owner, including without limitation any tenant, employee, agent or invitee of such Owner." It makes sense that the identified lot owners are obligated to pay for garbage collection expenses only during periods when their property is physically occupied by a person or entity lawfully entitled to occupy it, such as a tenant. We conclude the phrase "holding under" as used in these sections of the Declarations does not indicate a general intent to grant status as a beneficiary of easements and restrictions to a short-term tenant, given the other terms of the document that expressly limit the burdens and benefits of the covenants to the fee simple owners and their successors-in-title. The Foundation also cites to other provisions of the Declarations that prohibit the owner, and persons "holding under" an owner, from obstructing a driveway or a parking easement. The Foundation argues that this shows it is burdened by the terms of those easements, and thus it must also be deemed to benefit from the easements and have a right to enforce them. But the driveway and parking easements do not, in fact, establish that a tenant is burdened by the Declarations. Instead, these easements demonstrate that the owners are obligated to prevent others who are in lawful possession of their property from violating the terms of the easements which bind the owner, or that the owners will be deemed to have violated the terms of the easements if an owner's "tenant, employee, agent or invitee" obstructs a parking or driveway easement. But the Foundation fails to demonstrate it is burdened by the terms of the Declarations.
The Foundation is not a party to the recorded Declarations. It is, however, a party to its lease, which contains no reference to the Declarations and does not obligate the Foundation to comply with its terms. Although the Declarations may reasonably be read as requiring owners to lease the property subject to the restrictions set forth in the document, the Foundation fails to show, and does not even allege, that it relied upon the terms of the Declarations or the benefits that inured to its landlord, Lucas (or even those who "hold under" Lucas), pursuant to the terms of that document when it executed the lease.
The Foundation also argues it is not unfair to subject Lucas to the terms of the declarations and easements. While that may be true, the Foundation fails to demonstrate it has standing to enforce the terms of the document. In fact, the Declarations expressly state that an owner of a tract covered by the agreement may enforce it. It identifies no other person or entity that is entitled to
A trial court's determination on the issue of standing in a zoning case will not be disturbed unless its factual determinations are clearly erroneous. City of Marietta v. Traton Corp., 253 Ga. 64, 65 (1), 316 S.E.2d 461 (1984). And the trial court's application of law to the facts is subject to de novo appellate review. See Murray v. Murray, 299 Ga. 703, 705, 791 S.E.2d 816 (2016). Although the trial court's order in this case granting the County's motion to dismiss did not expressly apply the "substantial interest-aggrieved citizen" test when it reached the conclusion that the Foundation lacked standing to challenge the zoning decision, no "magic language" is necessary in an order finding a party lacks standing to challenge a zoning decision. What matters is that the trial court considered the relevant factors and arrived at the proper conclusion.
3. Standing, and its requirement "that a person claiming to be aggrieved have a `substantial interest' in a zoning decision," also applies to a party who seeks equitable relief in an attack on a zoning determination. (Citation and punctuation omitted.) Massey v. Butts County, supra, 281 Ga. at 245, 637 S.E.2d 385 (seeking injunctive and declaratory relief). See also Tate v. Stephens, 245 Ga. 519, 520-521, 265 S.E.2d 811 (1980). The Foundation asserts that this standard applies only to claims for mandamus relief pursuant to OCGA § 9-6-24, relating to the interest required to enforce a public right; and it claims its complaint nevertheless states a claim for mandamus relief pursuant to OCGA § 9-6-25, which states that a plaintiff may enforce a private right by mandamus if it can "show pecuniary loss for which he cannot be compensated in damages." We note, however, that the order dismissing the petition for writ of mandamus references a pending action filed by the Foundation against Lucas, and suggests that the Foundation's claim for relief should be pursued in this pending action, in which the Foundation seeks damages for breach of contract and also injunctive relief. We reject the Foundation's assertion that the
In any event, mandamus relief is available only if the claimant establishes both that "(1) no other adequate legal remedy is available to effectuate the relief sought; and (2) the applicant has a clear legal right to such relief." (Citation and punctuation omitted.) SJN Properties, LLC v. Fulton County Bd. of Assessors, 296 Ga. 793, 800 (2) (b) (ii), 770 S.E.2d 832 (2015). Because the Foundation's trial court petition fails to demonstrate it has a substantial interest in the zoning decision, we have concluded it lacks standing to mandamus relief. Accordingly, we affirm the trial court's order granting Glynn County's motion to dismiss the Foundation's petition for a writ of mandamus.
Case No. S17A1163
4. The County's motion to dismiss sought dismissal of the complaint, not simply dismissal of the claims against the County. The trial court granted that motion to dismiss. Accordingly, the first dismissal order disposed of the entire case and was a final order. The later order granting Lucas's motion to dismiss is, therefore, a nullity, and is vacated.
All the Justices concur.