Dawkins & Smith Homes LLC v. Lowndes County, Ga.

In this declaratory judgment action concerning a zoning issue, plaintiffs Dawkins & Smith Homes, Inc. “DSH” and 13 other parties appeal the order denying them summary judgment and granting summary judgment to defendants Lowndes County and its zoning administrator. DSH, which owned certain property on which it had granted easements to the other 13 appellants, argues that the trial court should have declared that the use of those easements over its property to access a lake did not violate the county zoning ordinance, or that the easements were in lawful existence prior to the enactment of the zoning ordinance. We agree with the trial court that the use of the easements over DSH’s property were not accessory uses of that property and therefore violated the zoning ordinance. We further agree that the easements were undisputably created after the zoning ordinance was enacted. Accordingly, we affirm. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 c. A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp .1

The evidence is undisputed on the material facts. In 2003 and 2004, DSH a developer purchased 14 neighboring lots, which lots were numbered Lots 1 through 13 and Lot 15. Lot 15 had a boat ramp allowing access from the street to the lake at its rear. Pursuant to Lowndes County’s 1984 zoning ordinance, DSH petitioned the county to allow Lot 15 to serve as a common area for Lots 1-13, which petition the county denied. DSH then starting selling lots to the other 13 parties in February 2005, closing on Lots 2, 8, 10, 11, 12, and 13 before the 1984 ordinance was replaced with a new ordinance in May 2006. Thereafter, from March 2007 through September 2007, DSH sold the remaining lots. In addition to conveying title to a lot, DSH in each deed also granted to the grantee a perpetual easement over Lot 15, allowing the grantee and its successors to use the boat ramp over Lot 15 for pedestrian and vehicle access to the lake. The easement was appurtenant to the lot being conveyed.