ZBA File No. B Robert L. McCorkle, III McCorkle & Johnson, LLP Attorney for DBL, Inc.

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1 BRIEF IN OPPOSITION TO THE ZONING BOARD OF APPEALS APPLICATION OF PAUL FARTHING, JESSICA FARTHING, SALLY G. CHANDLER, DENNIS J. CHANDLER, AND JAMES S. MARTIN ZBA File No. B Robert L. McCorkle, III McCorkle & Johnson, LLP Attorney for DBL, Inc. DBL, Inc. ( DBL ), by and through the undersigned, files its Brief in Opposition to the Zoning Board of Appeals ( ZBA ) Application of Paul Farthing, Jessica Farthing, Sally G. Chandler, Dennis J. Chandler, and James S. Martin (collectively referred to as Appellants ), stating as follows: I. Statement of Facts DBL is the owner of Sail Harbor Marina located at 606 Wilmington Island Road ( Lot 33 ) and the adjacent property located at 604 Wilmington Island Road ( Lot 32 ), Chatham County, Georgia. On or around October 24, 2014, DBL submitted an application to the Georgia Department of Natural Resources Coastal Resources Division ( DNR ) and the United States Army Corps of Engineers to reduce an existing marina dock that currently originates from Lot 33 (the Application ). A true and correct copy of the Application is attached hereto as Exhibit A. Specifically, DBL sought permission to remove approximately 7,506 sq. ft. of dock that extends to the west of the marina, including a number of floating docks that currently extend westward beyond Lot 33, and to construct and maintain a new series of floating docks that will originate from the existing dock and will continue within the extended property lines of Lot 32. It is important to note that (i) the application seeks to reduce the overall floating space by 3,348 sq. ft, which will reduce impacts upon the coastal marshlands; and (ii) no portion of the proposed modification will connect with the upland portion of Lot 32. (Ex. A). 1

2 The application requires, among other things, a letter from the local governing authority stating that the proposed project is not prohibited by any zoning law. See OCGA (b)(6). In preparing this application, DBL obtained such a determination from Robert Sebek, the Chatham County Zoning Administrator, on May 27, A trued and correct copy of Mr. Sebek s May 27, 2014, letter is attached hereto as Exhibit B. Public notice of DBL s proposed project ran from February 5, 2015, to March 7, During the public notice period, DBL s application, including the May 27, 2014, letter from Mr. Sebek, was publically accessible on the DNR s website. A true and correct copy of the DNR s public notice regarding DBL s Application is attached hereto as Exhibit C. Appellants did not appeal the May 27, 2014, determination of the Zoning Administrator to the ZBA. Appellants responded to the DNR s public notice by providing to the DNR written objections to the Application. True and correct copies of Appellants written objections are attached hereto as Exhibit D. Appellants also obtained local counsel, who, on February 20, 2015, and February 26, 2015, sent letters to Chatham County Attorney Jonathan Hart urging Mr. Hart to compel Mr. Sebek to rescind his May 27, 2014, letter because Lot 32 is currently zoned as multi-family residential property. True and correct copies of Appellants February 20, 2015, and February 26, 2015, letters are attached hereto as Exhibit E. In response, Mr. Hart issued a very carefully worded letter to the DNR offering a variety of opinions, including what he believed the County s reasonable expectations were for Lot 32. A true and correct copy of Mr. Hart s March 4, 2015, letter is attached hereto as Exhibit F. Thereafter, on March 16, 2015, Mr. Sebek provided his own letter to the DNR wherein he referenced Mr. Hart s letter and reaffirmed his May 27, 2014, determination that DBL s proposal is not violative of any zoning law. A true and correct copy of Mr. Sebek s March 16, 2015, letter is attached hereto as Exhibit 2

3 G. In response to the DNR s direction that the Zoning Administrator s March 16, 2015, letter should have been addressed to DBL or Stuart Sligh (DBL s agent), Mr. Sebek provided an April 15, 2015, letter, wherein he once again reaffirmed his May 27, 2014, determination and stated, for the third time, that he was not aware of any reason the owner may not, with proper State approval, construct the docks as shown. A true and correct copy of Mr. Sebek s April 15, 2015, letter is attached hereto as Exhibit H. Appellant Chandler was provided with a copy of Mr. Sebek s April 15, 2015, letter by Karl Burgess of the DNR via on April 28, Appellant Chandler then forwarded the April 15, 2015, letter to Gary Plumbley, Director of Development Services of the Metropolitan Planning Commission, via on April 28, A true and correct copy of Appellant Chandler s April 28, 2015, is attached hereto as Exhibit I. On April 29, 2015, counsel for Appellants sent to Mr. Burgess a letter referencing Mr. Sebek s April 15, 2015, letter. A true and correct copy of this letter is attached hereto as Exhibit J. On May 18, 2015, Appellants requested, via letter, that the Chatham County Board of Commissioners (the Commission ) direct Mr. Sebek to withdraw his determination and notify the DNR that the dock would violate the Chatham County Zoning Ordinance. A true and correct copy of Appellants May 18, 2015, letter is attached hereto as Exhibit K. The Chatham County Board of Commissioners denied Appellants request and did not take up the matter. Appellants then filed suit against DBL, Chatham County, and Robert Sebek in the Superior Court of Chatham County seeking mandamus, a declaratory judgment, and temporary and permanent injunctive relief. During the June 2, 2015, hearing on Appellants request for a temporary restraining order, which was denied, DBL and Chatham County raised Appellants failure to 3

4 appeal Mr. Sebek s determination as a defense to Appellants Complaint. The following day, Appellants filed their Zoning Board of Appeals Application (the Appeal ). As discussed in more detail below, the Appeal must be dismissed because (i) the Appeal is untimely; and (ii) Appellants lack standing to challenge Mr. Sebek s determination. Further, aside from the jurisdictional deficiencies of the Appeal, the Appeal also fails because Mr. Sebek properly determined that the Application does not violate any zoning ordinance. II. Argument and Citation of Authorities A. The Appeal is Time Barred Mr. Sebek s determination of whether the Application violates any zoning ordinance was made on May 27, 2014, which was 461 days prior to the date that Appellants filed the Appeal. Because such a period of time exceeds that permitted by Chatham County Zoning Ordinance , the Appeal is untimely. Chatham County Zoning Ordinance makes clear that an appeal must be filed no later than thirty (30) days after the date of notification 1 of the order, decision, or determination appealed from. Consequently, the limitations period for seeking review of Mr. Sebek s determination expired almost one year prior to the date of the Appeal. This interpretation is consistent with the instructions on the face of the form application for appeal which reads: An appeal must be filed no later than 30 days after the determination was rendered by the Zoning Administrator. Appellants contend that the ZBA should hear their Appeal because i) they could not appeal until after seeking a rescission action from the Commission; and (ii) they were unaware of the [the April 15, 2015, letter] until a date following the May 22, 2015 meeting of the Chatham County Commission. First, Appellants failed attempt to persuade the Commission to 1 It is DBL s position that Chatham County Zoning Ordinance does not require actual notice in order to trigger the thirty day limitation period. 4

5 compel Mr. Sebek to withdraw his determination is irrelevant to the issue of whether the Appeal was timely filed. The Commission does not have the authority to compel the Zoning Administrator to change his position or rescind a determination. Appellants pursuit of such a resolution was in error. The Chatham County Zoning Ordinance unequivocally states that the ZBA has full and complete jurisdiction to review the determinations of the Zoning Administrator. See Chatham County Zoning Ordinance Second, Mr. Sebek s determination was made on May 27, 2014, and Appellants were aware this determination on February 20, 2015, at the latest. (Ex. E). Therefore, the Appeal is untimely. Despite the fact that Mr. Sebek s April 15, 2015, letter is a mere reaffirmation of his May 27, 2014, letter, Appellants seem to contend that the April 15, 2015, letter constitutes a separate determination from which they may appeal. Even if, however, Mr. Sebek s April 15, 2015, letter was an independent determination, the Appeal is still untimely. Appellant Chandler received a copy of the April 15, 2015, letter on April 28, (Ex. I). Appellants counsels April 29, 2015, letter to Mr. Burgess further confirms that Appellants were aware of the April 15, 2015, letter on that date. As such, the latest date that the Appeal could have been filed under the most lenient interpretation of the Chatham County Zoning Ordinance was May 29, Thus, Appellants Appeal must be dismissed as untimely. B. Appellants Lack Standing to Appeal the Determination of Mr. Sebek In addition to being time barred by their failure to file a timely appeal, Appellants lack standing to seek review of Mr. Sebek s determination. Georgia law is clear that a landowner complaining to be aggrieved by a zoning decision must: 1) have a substantial interest that is affected by the government action; and 2) show that the government action would cause a special damage or injury not common to all property owners who are similarly situated. Moore v. Maloney, 253 Ga. 504, 506, 321 S.E.2d 335 (1984). Waterfront property owners have a right to 5

6 equitable access to tidelands and tidal waters that adjoin their property. Dorroh v. McCarthy, 265 Ga. 750, 751, 462 S.E.2d 708, 710 (1995). When the shoreline at issue is relatively straight, equitable access is achieved by extending the property lines straight out to the navigable waters in order to allocate access among riparian owners. Id. Because of these rights, Georgia courts have found adjacent landowners to have standing to challenge a dock permit in factual scenarios where the dock at issue obstructed the view of the water, impeded access, hampered the ability to build a dock, and/or diminished property values. See DBL, Inc. v. Carson, 262 Ga. App. 252, 255, 585 S.E.2d 87, 91 (2003)(finding that property owners had standing to contest a dock because the dock obstructed their view of the water within the extended property lines and impeding one landowner s access to his boat); Hitch v. Vasarhelyi, 285 Ga. 627, 630, 680 S.E.2d 411, 414 (2009)(finding that property owners had standing to contest issuance of a dock permit because property owners demonstrated that they would suffer special damages or injury because their view would be impaired, their ability to build a dock would be hampered, and the value of their property would be diminished). Here, the Appellants cannot demonstrate that they will suffer a special damage or injury not common to all property owners who are similarly situated. First, Appellants James Martin, Sally Chandler, and Dennis Chandler do not own property adjacent to either of the lots owned by DBL. See tax map and deeds of record attached hereto as Exhibit L. Thus, they cannot legitimately assert that the use and enjoyment of their property will be impacted by the modification of DBL s dock. Second, the Farthings use and enjoyment of their property, which is adjacent to Lot 32, will not suffer special damage. The Farthings purchased their lot on June 9, (Ex. L). As noted above, DBL s proposal is for the modification and expansion of a dock that originates on Lot 33 and has been operated as a marina for well over a decade. If the 6

7 Application is approved, the dock will expand within the extended property line of Lot 33, but will not touch Lot 32. The expansion of this dock into the extended property line of Lot 32 consists solely of three floating docks that terminate no less than 10ft from Lot 32 s extended property line and more than 50ft from the Farthings dock. (Ex. A). The expansion will not impair the Farthings view within their extended property line, will not impede the Farthings access to their dock, and will not otherwise block the tidewaters to which the Farthings are entitled equitable access. Further, the modification of the existing, commercial marina will not impair the value of the Farthings property. Furthermore, Turner s Creek has at least three such public marinas and a charter fishing business in close proximity. See attached aerial photo of Tuner s Creek attached hereto as Exhibit M. As such, the Farthings cannot demonstrate that they will suffer a special damage or injury not common to all property owners who are similarly situated along waterfronts containing commercial marinas. Consequently, the Appellants lack standing to seek the ZBA s review of Mr. Sebek s determination that DBL s proposed dock modification does not violate any zoning ordinance. C. The Zoning Administrator Properly Determined that the Application does Not Violate any Zoning Ordinance Mr. Sebek properly determined that DBL s Application does not violate any zoning ordinance because there is no zoning ordinance that is applicable to the Application. As noted above, no portion of DBL s proposed dock modification touches Lot 32. Rather, the portions of the dock that contain an upland component originate from Lot 33. The portions of the proposed dock that fall within the extended property lines of lot 32 will attach only to state-owned tidewater beds. As discussed in more detail below, Chatham County lacks authority to regulate the use of state-owned tidewater beds and, thus, the use restrictions applicable to Lot 32 are not applicable to state-owned water bottoms within the extended property lines of Lot 32. 7

8 a. The Ordinance is Preempted The Constitution of the State of Georgia authorizes counties to adopt clearly reasonable ordinances, resolutions, or regulations regarding matters for which no provision has been made by general law, but this authorization cannot be construed to extend to matters which the General Assembly has preempted by enacting laws on the matter. Ga. Const. Art. IX, II, Par. I. Thus, statutes of the state legislature control over those of a local government. Sturm, Ruger & Co. v. City of Atlanta, 253 Ga. App. 713, 717, 560 S.E.2d 525 (2002). Preemption may be express, implied, or by conflict. GeorgiaCarry.Org, Inc. v. Coweta Cnty., 288 Ga. App. 748, 748, 655 S.E.2d 346 (2007). Exceptions to the rule of state preemption exist only when the state law authorizes the local government to act and the local ordinance does not conflict with the general law. Ga. Const. Art. III, VI, Par. IV. In the absence of an express grant of authority from the state, a local government cannot regulate a matter which is regulated by the state. Id. For instance, in Franklin County v. Fieldale Farms Corp., Franklin County promulgated a land disposal ordinance which attempted to regulate the disposal of industrial, hazardous, and biomedical waste, which are matters regulated by state water quality control legislation. 270 Ga. 272, 507 S.E. 2d 460 (1998). Fieldale Farms then sought and obtained a declaratory judgment that Franklin County s ordinance was preempted by state law. Id. at 273. In affirming the decision of the trial court, the Fieldal Farms Court held noted that the applicable state law granted the state the responsibility for overseeing water quality without mentioning the role of local governments, directed the Board of Natural Resources to adopt regulations and requirements, and required the state EPD to approve permits. Id. at 277. The Fieldale Farms Court then found that that General Assembly did not intend to give counties concurrent jurisdiction and held that the local ordinance was impliedly preempted by the state law. Id. 8

9 Here, the Chatham County Zoning Ordinance attempts to govern the use of coastal tidewater beds by construing such river beds to be within the boundaries of the County s zoning districts. There is no Georgia law, however, which authorizes local governments to regulate the use of coastal tidewater beds. Regarding tidewaters in general, the General Assembly has declared: the State of Georgia, as sovereign, is trustee of the rights of the people of the state to use and enjoy all tidewaters which are capable of use for fishing, passage, navigation, commerce, and transportation, pursuant to the common law public trust doctrine. Therefore, the General Assembly declares that the protection of tidewaters for use by the state and its citizens has more than local significance, is of equal importance to all citizens of the state, is of state-wide concern, and, consequently, is properly a matter for regulation under the police powers of the state. OCGA (emphasis supplied). Regarding the use of coastal tidewater beds specifically, the General Assembly has declared that the management of the coastal marshlands has more than local significance, is of equal importance to all citizens of the state, is of state-wide concern, and consequently is properly a matter for regulation under the police power of the state. OCGA (emphasis supplied)(the CMPA). Additionally, like the state law at issue in Fieldale Farms, the CMPA directs the DNR to enforce the CMPA and to promulgate rules and regulations regarding the construction or location of any structure on or over coastal tidewater beds. See OCGA Thus, like the local ordinance at issue in Fieldale Farms that was impliedly preempted by the language and legislative history of the state law, the portion of the Chatham County Zoning Ordinance which seeks to regulate the use of coastal tidewater beds is preempted by CMPA. Consequently, the Zoning Administrator properly determined that DBL s proposal is not violative of any zoning ordinance. 9

10 b. State-owned Tidewater Beds are Immune from Local Zoning Regulations In addition to being preempted by the CMPA and OCGA , the Chatham County Zoning Ordinance cannot be interpreted to include state-owned tidewater beds because the State of Georgia is immune from local zoning ordinances. The State of Georgia holds fee simple title to the beds of all tidewaters within the State up to the high water mark. Black v. Floyd, 280 Ga. 525, 630 S.E.2d 382 (2006); OCGA It is an established principle of Georgia law that property owned by the state, and used for a governmental purpose, is exempt from municipal zoning regulation. Evans v. Just Open Government, 242 Ga. 834, 251 S.E.2d 546 (1979). Therefore, the use restrictions applicable to Lot 32 cannot be extended to property that is owned by the State of Georgia. III. Conclusion As discussed in detail above, Appellants failed to timely appeal the Zoning Administrator s determination that DBL s Application does violate any zoning ordinance. Further, Appellants lack standing to seek review of said determination. Consequently, the ZBA is without jurisdiction to hear this Appeal. Moreover, assuming, arguendo, that these jurisdiction defects were not fatal to Appellants Appeal, Mr. Sebek s determination that DBL s Application does not violate any zoning ordinance was properly made because Chatham County lacks the authority to regulate the use of state-owned tidewater beds. Therefore, DBL respectfully requests that the ZBA dismiss the Appeal or, in the alternative, affirm the determination of the Zoning Administrator. 2 2 A granting of the Appeal would challenge the protections guaranteed by the Constitutions of the United States of America and the State of Georgia, and DBL hereby reserves said rights. 10