MERITEX ATLANTIC BOULEVARD, LLC v. GWINNETT COUNTY; CITY OF NORCROSS

Court: Superior Court of Gwinnett County
Case Number: 18-A-04898-5
Decision Date: August 16, 2019
Case Type: Immunity - Sovereign
This case relates to of a detention pond and drainage system that serves property owned by the Plaintiff. At the time that the property was being developed, the detention pond and drainage system were "dedicated" to the County. Pursuant to the "dedication” the County was responsible for using, maintaining, repairing and operating the detention pond and the drainage system. In 2005, however, the subject property was annexed by the City. In addition, the City passed the Stormwater Utility Ordinance, pursuant to which, the City took responsibility for stormwater utility for all properties that were or might in the future be annexed into the City. Under the Ordinance, the City operates, maintains, and improves access to stormwater management systems and facilities located on  private property but within easements granted to the City. The detention pond and drainage system fell within the City's stormwater district under the SDS. In addition, the City billed stormwater utility service fees to the Plaintiff as owner of the property. In February 2018, two sinkholes appeared on the property, which were determined to be related to a damaged drainage pipe. Plaintiff made demands upon both the City and County to repair the drainage system and related damages. Both the City and County denied responsibility for the drainage system. The Plaintiff filed suit for inverse condemnation, damages, nuisance, and Mandamus against both the City and the County. The County filed a Motion for Declaratory Judgment. The City filed a motion for summary judgement claiming sovereign immunity and asserted that it was not obligated to maintain the drainage system as part of its stormwater utility, as it was “merely a mechanism to comply with environmental regulations”. The Superior Court found that this case was suitable for declaratory judgment as although the damage was already done, there was scope for further damage to occur. Further, the trial court held that, following the recent case of City of College Park v. Clayton County, S19A0460 (Ga. June 24, 2019), "[n]either the City nor the County is sovereign over the other". As such the trial court denied the City’s motion for summary judgment.