Monticello, Ltd. v. City of Atlanta , 231 Ga. App. 382 ( 1998 )

Beasley, Judge,

concurring specially.

I concur fully in Division 1 and for that reason depart from the majority’s analysis of the issue presented in Division 2. I concur in the judgment, as the trial court erred in denying plaintiff Monticello, Ltd.’s motion for summary judgment and granting that of the City of Atlanta. In accordance with the law as explained in Division 1, Monticello was entitled to summary judgment.

There is no reason to examine whether Monticello knew or should have known of the purported administrative remedy or whether it was properly promulgated. It does not matter because, construing the evidence most favorably to the City, downward adjustment of the solid waste disposal fees could be made only upon presentation of “a letter signed and dated by an Inspector in the Bureau of Housing [stating] that a portion (an apartment unit or units) of said property has been declared unfit for habitation.” According to the City’s evidence, it is only units which are officially declared uninhabitable which can qualify for exemption from the fees.

In its amended complaint Monticello sought judicial relief not only because the units were “not rentable nor habitable” but also because it did not occupy the property. It asserted that the city charter provision which imposed these fees applied only to occupants, tenants or lessees when the property was not owner-occupied. Monticello contended that the fee was for use of the service, and that since it did not occupy the units and thus did not use or benefit from the sanitation service, the law did not apply.

As the majority opinion holds in Division 1, Monticello is correct. Consequently, the administrative remedy which the City offers by way of its proof would be insufficient on its face. It would impose the fee on these units, and all others, even when they were habitable but unoccupied, unrented, or unleased. For this reason, plaintiff Monticello was entitled to summary judgment on this point, i.e., exhaustion of administrative remedies, as well.

Decided March 20, 1998 Brenskelle & Perry, David P. Brenskelle, Brock E. Perry, for appellant. Clifford E. Hardwick IV, Bernard R. Thomas, Sr., Lemuel H. Ward, for appellee.