Opinion
S08G1645
DECIDED: JUNE 17, 2009
We granted a writ of certiorari to the Court of Appeals in Hitch v. Vasarhelyi, 291 Ga. App. 634 ( 662 SE2d 378) (2008), and posed this question: Whether the Court of Appeals erred in affirming the trial court's dismissal of the complaint for lack of standing. For the reasons that follow, we answer this question affirmatively.
The Hitches brought suit against the State of Georgia, the Department of Natural Resources, and the Coastal Resources Division of the Department to challenge the issuance of a license to build a dock to Vasarhelyi, a neighboring landowner. They alleged, in pertinent part, that a dock extending across state-owned tidewater beds and marshlands from Vasarhelyi's property would interfere with their view of the marsh and Skidaway River, hamper their ability, or the ability of their successors in interest, to build a dock on their property, and diminish the value of their property. They sought, inter alia, a declaratory judgment to determine whether the issuance of a dock permit "impacting the property and property value of an adjacent landowner is subject to the provisions of the Administrative Procedure Act," as well as mandamus and other relief to rescind the issuance of the license. The state moved to dismiss the complaint and the trial court granted the motion, finding that the Hitches lacked standing to challenge the grant of the license because Vasarhelyi has not yet built the dock. The Court of Appeals affirmed, and we reverse.
Vasarhelyi was also named as a defendant in the suit. However, she was dismissed at the Hitches' request.
To establish standing in cases of this kind, a landowner must demonstrate a substantial interest in the government action and show that this interest is in danger of suffering a special damage or injury not common to all property owners similarly situated. DeKalb County v. Wapensky, 253 Ga. 47, 48 (1) ( 315 SE2d 873) (1984). "By `similarly situated,' we refer to persons in the general community who may merely suffer inconvenience and exclude those persons who stand to suffer damage or injury to their property which derogates from their reasonable use and enjoyment of it." Id.; Hollberg v. Spalding County, 281 Ga. App. 768, 772 (2) ( 637 SE2d 163) (2006).
The standing analysis in zoning cases is well suited to cases in which a landowner's full use and enjoyment of property is threatened by government action. DBL Inc. v. Carson, 262 Ga. App. 252, 254 (2) ( 585 SE2d 87) (2003).
In Moore v. Maloney, 253 Ga. 504 ( 321 SE2d 335) (1984), several landowners challenged a decision to rezone neighboring property to allow for the construction of townhouses. The trial court determined that the landowners did not have standing to contest the city council's actions. This Court reversed. As to the substantial interest requirement, this Court found that two of the landowners demonstrated that they possessed a substantial interest which would be affected by the rezoning because they owned lots adjacent to the property in question. As for showing special injury, this Court observed that the landowners showed that the value of their property would decline if townhouses were built on the neighboring property. Going further, this Court noted that the landowners "also produced evidence that the development would create `visual intrusions on peace and privacy,' and traffic problems related to the physical layout of the lot and the intersection, not just an increase in traffic." Id. at 506. In so doing, this Court stated that a showing of special damage or injury need not necessarily be expressed in terms of economic loss:
[W]hile the loss of economic value of land may be one manifestation of specific damages caused by rezoning and may be sufficient by itself to support standing, we will not require evidence of a specific change in property value as a prerequisite for the attainment of standing. Where, as here, the parties who seek standing own property contiguous to the rezoned lot and have to live with any changes in the use of the property, such a requirement would be particularly inappropriate.
Id. at fn. 1. See also AT T Wireless v. Leafmore Forest Condo. Assn., 235 Ga. App. 319, 321 ( 509 SE2d 374) (1998) (evidence of change in property value is not required to attain standing).
In affirming the dismissal of the Hitches' complaint, the Court of Appeals focused on the fact that the dock had not yet been built. Given that fact, the appellate court concluded, any injury to the Hitches must be deemed speculative. Hitch, supra at 636. We think the appellate court's focus is entirely too narrow and its conclusion is erroneous.
First, we note that in several cases, our courts have concluded that landowners had standing to contest a zoning or licensing decision even though the contemplated action had not been completed, or even begun. See, e.g., Moore v. Maloney, supra (landowners had standing to challenge rezoning decision although townhouses not built); DeKalb County v. Wapensky, supra (landowners had standing to challenge variance although condominium tower not built); AT T Wireless v. Leafmore Forest Condo. Assn., supra (landowners had standing to contest permit even though communication tower not complete). This is as it should be because a landowner should not have to wait until a contemplated structure is built before bringing suit for declaratory, injunctive, or other relief. See OCGA § 41-2-4. See also Griffith v. Newman, 217 Ga. 533, 536 (1) ( 123 SE2d 723) (1962) (court may take action against threatened or anticipated nuisance when it appears with reasonable certainty that a nuisance will necessarily result from contemplated act).
The second reason why the Court of Appeals erred is because it misapplied the concept of speculative or contingent injuries. The appellate court posited that the alleged injuries are speculative because the issuance of the license to build the dock only gave "Vasarhelyi permission to build across state land — it does not relieve Vasarhelyi from compliance with other laws or give her the right to infringe on the rights of others." (Punctuation omitted.)Hitch supra at 636. What the Court of Appeals missed here is that the license gave Vasarhelyi rights — albeit limited rights — to build a dock; that Vasarhelyi was taking steps to implement those rights; and that the issuance of the license and the building of the dock will adversely affect the Hitches' property. Furthermore, the Hitches showed that they would suffer special damages or injury as a consequence of the issuance of the license and the construction of the dock. The Hitches demonstrated that their view would be impaired, their ability to build a dock would be hampered, and the value of their property would be diminished. These consequences are not speculative. Compare Thrasher v. City of Atlanta, 178 Ga. 514, 519 ( 173 SE 817) (1934) (to be a nuisance, consequences resulting from house under construction must be certain to a reasonable degree) with Herren v. Board of Edu., 219 Ga. 431 ( 134 SE2d 6) (1963) (abutting landowners' fears that condemned property to be used as football stadium would become a nuisance were too speculative).
An appraisal report notes that the Hitches' property is "uniquely difficult to appraise [because Vasarhelyi] has a license to build a dock across the [Hitches'] marsh area." The report goes on to state that the building of the dock will impair the Hitches' view, erode their privacy, and diminish the value of their property.
As neighboring landowners, the Hitches established a substantial interest in the decision of the state to grant the license to build a dock. They also alleged that they have incurred special damage or injury as a result of the state's decision, i.e., damage or injury which is not common to similarly situated property owners. In short, the Hitches have established that they have "an interest of real worth and importance" and that they are not merely "casting themselves in the role of `champions of the community.'" DeKalb County v. Wapensky, supra at 49. The Court of Appeals erred in ruling otherwise.
In recognizing that the Hitches have sufficient interests to challenge the Department of Natural Resources' licensing decision, this Court does not address the extent to which the claims asserted in the complaint set forth claims upon which relief can be granted. That question remains pending below.
Judgment reversed and case remanded. All the Justices concur.