Greater Atlanta Home Builders Association, Inc. et al. v. The City of McDonough, Georgia
Jul 03, 2013OUTCOME: Judgment against Home Builders Association on their request for attorney's fees was reversed and contrary precedent was overruled.
The city adopted a moratorium on the issuance of development permits pursuant to McDonough, Ga., Ordinance No. 02-27-19. However, it contained an exemption for developers who signed a "moratorium agree ... ment" and paid certain interim fees. The city assessed and collected impact fees for approximately one year. The HA filed its class action against the city, seeking recovery of impact fees that had been assessed against developers for a one-year period based on its claim that the collection thereof was ultra vires. It also sought attorney fees and expenses of litigation. The trial court certified the class under O.C.G.A. § 9-11-23, and then granted summary judgment to the HA on the claim for return of the impact fees. However, the trial court denied summary judgment on the claim for attorney fees and expenses upon finding that the HA failed to provide ante litem notice to the city pursuant to O.C.G.A. § 36-33-5. On appeal, the court disagreed that the statutory notice was required. As the claims did not involve "injuries to person or property," § 36-33-5 did not apply. Moreover, § 36-33-5 was to be strictly construed because it was in derogation of the common law. Greater Atlanta Home Builders Ass'n, Inc. v. City of McDonough, 322 Ga. App. 627, 627, 745 S.E.2d 830, 830 (2013)
