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Slivka v. Nelson

Court of Appeals of Georgia

July 16, 2014

SLIVKA
v.
NELSON et al

Cert. applied for.

Taxation. McIntosh Superior Court. Before Judge Cavender.

Oliver Maner, Benjamin M. Perkins, Patrick T. O'Connor, for appellant.

Jones Osteen & Jones, Richard E. Braun, Jr., for appellees.

BOGGS, Judge. Barnes, P. J., and Branch, J., concur.

OPINION

Page 163

Boggs, Judge.

Gene Slivka appeals from the superior court's order granting summary judgment in favor of the McIntosh County Board of Commissioners and Wanda Nelson, the tax commissioner for McIntosh County (collectively " the County" ). He contends that the trial court erred by concluding that the conservation use covenant was breached and by failing to conclude that the County's breach of covenant determination was void based upon a lack of notice. For the reasons explained below, we affirm.

Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. We review a trial court's grant of summary judgment de novo, construing the record and all reasonable inferences in favor of the nonmoving party.

( Citation and punctuation omitted.) Effingham County Bd. of Tax Assessors v. Samwilka, Inc., 278 Ga.App. 521 (629 S.E.2d 501) (2006). So viewed, the record shows that in 2004, Slivka applied for and was granted a conservation use covenant[1] for a tract of land. On June 6, 2007, the McIntosh County Board of Commissioners approved Slivka's request to rezone the property from Residential Agricultural District (" AR" ) to a Single Family Residential District (" R-1" ).

On July 12, 2007, Slivka conveyed the property to Greenfields Investments, LLC (" Greenfields" ), and the warranty deed was recorded on July 13, 2007. On the same day the warranty was recorded, the County sent a notice to Slivka and Greenfields of a " breach of covenant penalty." On August 8, 2007, the County sent a document titled " Calculation of Breach of Conservation Use Penalty" to Slivka and Greenfields which listed the date of the breach as July 12, 2007.[2] [328 Ga.App. 469] On August 16, 2007, Slivka wrote the County the following in response to the notice of penalty:

Please be advised under article #6 of the conservation use agreement that transfer of property does not create a breach of the covenant as long as the entity to which it is transferred maintains its conservation use. Greenfields, LLC, the new owner, is assuming our conservation usage. They will continue to maintain the property in its present state. They are aware that should

Page 164

they develop the property they will breach the covenant and be subject to a breach of covenant penalty... . I request that the " ...

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