Landowner Fails in Bid to Keep Out Subdivision Granted Access Over Private Easement

The Georgia Supreme Court upheld the denial of a motion for a permanent injunction and writ of mandamus seeking to prevent a subdivision permit from issuing to a developer.  Danbert v. North Ga. Land Ventures, LLC, Case No. S10A0563, Decided July 5, 2010. In essence, the landowners were trying to get the courts to overturn the decision of Towns County to give the developer a permit.  The facts showed that in 2003, Roger and Theresa Danbert purchased two adjoining land lots in Towns County comprising about 6.5 acres.  Both lots were bordered by an easement now known as Chinquapin Ridge Road, and the Danberts owned the land to the centerline of that road as shown on a recorded plat.  In 2005,  NGLV purchased a 46 acre plot further down the Chinquapin Ridge Road.  The easement along that road was the sole access to the NGLV land.

The Danberts argued that NGLV's submission to Towns County did not meet Section 503 of the Towns County Revised Subdivision Regulations ("Regulations").  That regulation states that "Access to every subdivision shall be provided over a public street or a public access street.  Access cannot be provided over private easement."  The Danberts argued that Chinquapin Ridge Road is not a "public street or a public access street" and that it is a private easement that cannot provide proper access to a subdivision.  The regulations provide no definition of public street or private easement.  The Danbert's deed described the easement only by stating that it is "subject to easements as shown on the plat."  The plats contain no further text on the issue.

In the absence of definitions in the Regulations, the Danberts urged that the term public street used in Section 503 must be synonymous with the definition of the term "public road" used in OCGA § 32-1-3(24) and that further there is no difference in the Regulations between "public street" and "public access street."  They also contended that because there is no record that Chinquapin Ridge Road was dedicated to or accepted by the County, it cannot be considered to be "intended or used" by the public within the meaning of OCGA § 32-1-3(24).  Some case law states that a right of public access to a road does not occur until the road has been dedicated and accepted by the governing body.

The court found several flaws in the Danberts' argument.  First, their contention ignored the fact that the County did not choose to use the term "public road" that was defined in the Georgia Code, but instead chose to use other terms undefined by the Georgia Code.  No evidence indicated that the County felt that the definitions in the Georgia Code were pertinent.  Moreover, the Regulations did not require an express or implied dedication as set forth in the case law because the definition of "street" included a "public or dedicated thoroughfare."  Apparently, the court decided that the inclusion of the term "public ... thoroughfare" instead of referring only to a "dedicated thoroughfare" meant that access in Town County did not have to be through a dedicated road.  Evidence as to whether members of the public had been able to access Chinquapin Road over the easement was conflicting.  Thus, the court held, the trial court did not abuse its discretion to reject an injunction because the trial court concluded that the Danberts failed to show a violation of the Regulations, and that access to NGLV's property by virtue of the easement was over "a public street" or "public access street" under Section 503 of the Regulations.  The bottom line in this case is that the Court went to some length to rule in favor of the development of the land, but limited the scope of the holding to the Regulations of rural Towns County and language identical to them.