FINAL COPY
294 Ga. 489

   S13A1635. POLO GOLF AND COUNTRY CLUB HOMEOWNERS’
               ASSOCIATION, INC. v. RYMER et al.

   S13A1636. POLO GOLF AND COUNTRY CLUB HOMEOWNERS’
          ASSOCIATION, INC v. FORSYTH COUNTY et al.


      THOMPSON, Chief Justice.

      In this appeal, Polo Golf and Country Club Homeowners’ Association,

Inc. (“Polo”), the homeowners association of a subdivision in Forsyth County,

the Rymers, who are homeowners in the subdivision, and Forsyth County itself,

are in contention to determine which party is responsible for repairing the

stormwater facilities in the subdivision.

      Polo is a mandatory homeowners association at Polo Fields, a subdivision

in Forsyth County consisting of approximately 1,000 lots. The subdivision was

completed in the mid-1980s. The stormwater facilities lying beneath the lots in

the subdivision were not expressly dedicated to the county; and the county

disclaimed ownership of any stormwater facility that does not lie under the

county’s streets. Polo does not own any stormwater facilities in the subdivision.

      Polo’s covenants, which were recorded in 1987, provide that each
homeowner is to maintain and repair the structures on his own property,

including any stormwater facilities or device affecting or altering the natural

flow of surface waters on any lot. If the covenants are violated by a homeowner,

Polo can pursue these remedies: file suit against the homeowner; levy fines

against the homeowner; enter the homeowner’s lot to make necessary repairs at

the homeowner’s expense.

      The county enacted a stormwater management ordinance in 1996. As

amended, the ordinance provides that the Department of Engineering is to

“determine the manner in which stormwater facilities should be operated” and

“adopt and implement the stormwater management program for the county.”

The ordinance also provides that the Department of Engineering “shall develop,

and update periodically, an addendum to the state stormwater management

design manual for the guidance of persons specifically preparing stormwater

management reports, and designing or operating stormwater management

systems” in the county.

      In 2004, the Department of Engineering enacted the addendum

contemplated by the ordinance. The section of the addendum at issue in this

case, section 4.2.2, requires homeowners associations to take responsibility for

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stormwater management facilities on their property. It provides:

           When a subdivision . . . has a legally created property or
     homeowners association, the association will be responsible for
     maintenance of all drainage easements and all stormwater facilities
     within the entire development. The association may be required to
     apply larvicides, stock mosquito fish or take other measures, as
     required by the Department of Engineering, to protect the health,
     safety and welfare of the public. The association will have to be
     formed prior to final plat approval. Any emergency maintenance
     required by Forsyth County will be done or subcontracted and the
     charge will be assessed to the association. Forsyth County
     Department of Engineering, Stormwater Division personnel may
     perform periodic inspections of existing and new private
     stormwater management facilities to determine whether they are
     maintained properly. Deficiencies will be noted to the association
     in writing. It shall be the responsibility of the association to repair
     deficiencies in a timely manner.

     The Rymers own a house and lot in the Polo Fields subdivision. Because

the interior of the Rymers’ home was flooded on a number of occasions, the

Rymers demanded that Polo and the county take action to fix the stormwater

system. Polo responded by notifying the Rymers that it gave notice to the

county that “neither the individual homeowner nor [Polo] should be held

responsible for the maintenance, repairs and continued upkeep of these

easements.” Polo also informed the Rymers that it was commissioning a study

of the subdivision’s stormwater facilities. It was reported that much of the


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system was failing because the corrugated metal pipes in the system exceeded

their life span of 25 years. Later, Polo informed the Rymers that it would be

selecting a contractor to repair the stormwater facilities in the entire subdivision,

including the facilities on the Rymers’ property, at Polo’s expense. However,

the repairs were never made, and the Rymers experienced additional flooding.

At no point prior to litigation did Polo assert that the Rymers were responsible

for repairs to the stormwater facilities on the Rymers’ lot.

      The Rymers brought suit against Polo1 and the county.                      Polo

counterclaimed seeking, inter alia, an injunction to compel the Rymers to repair

the stormwater facilities under their property pursuant to the covenants. Polo

also cross-claimed against the county, asserting, inter alia, the county could not

require it to maintain the stormwater facilities because the addendum “applies

to new and redevelopments and . . . cannot be applied to [Polo].”

      Thereafter, pipes in the vicinity of the Rymers’ property failed completely,

causing flooding and sinkholes on other lots in the subdivision and additional

flooding on the Rymers’ property. The county issued a notice to comply and

      1
        See OCGA § 44-3-231 (h) (association has power and standing to prosecute or
defend in its own name litigation of any kind concerning “lots or common area which
association has the responsibility to administer, repair, or maintain”).

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warning to Polo pursuant to section 4.2.2 of the addendum. In so doing, it

directed Polo to make necessary repairs in the subdivision within 30 days. Polo

did not make the repairs, and the county issued a notice of violation, but no fines

or citations were issued.

      Polo filed a separate declaratory judgment action against the county

seeking a declaration that the addendum impairs the obligation of contracts and

is unconstitutional and invalid. It also sought injunctive relief to prohibit

enforcement of the addendum. The Rymers moved to intervene in that case; the

motion was granted; and the trial court consolidated the two cases, which

involve essentially the same issues. After the parties filed motions and cross-

motions for summary judgment, the trial court denied the Rymers’ and Polo’s

summary judgment motions, but granted the county’s summary judgment

motion, finding the addendum can be enforced against Polo.

      1. The covenants. Pointing out that the covenants require homeowners

in the subdivision to maintain and repair the structures, including stormwater

facilities, on their own property, Polo contends the trial court erred in denying

its motion for summary judgment vis-a-vis the Rymers. We cannot accept this

assertion because, simply put, a genuine issue of material fact remains as to

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whether Polo is estopped from enforcing the maintenance provision of the

covenants against the Rymers.

        “In order for an equitable estoppel to arise, there must generally be some

intended deception in the conduct or declarations of the party to be estopped, or

such gross negligence as to amount to constructive fraud, by which another has

been misled to his injury.” Former OCGA § 24-4-27. Promissory estoppel, on

the other hand, which only requires “[a] promise which the promisor should

reasonably expect to induce action or forbearance on the part of the promisee or

a third person and which does induce such action or forbearance[,] is binding if

injustice can be avoided only by enforcement of the promise.” OCGA § 13-3-44

(a).2

        Viewing the evidence in a light most favorable to the Rymers, the

nonmovant, as we are bound to do, Cowart v. Widener, 287 Ga. 622, 624 (697

SE2d 779) (2010), we find the following:


        2
         This Code section adopts the Restatement (Second) of Contracts, § 90 and, as the
Restatement notes, is often viewed as being promissory estoppel. “Although the
Restatement embraces promissory estoppel under the provisions for contracts enforceable
without consideration, Georgia views it as a doctrine wherein consideration is supplied by
the reliance of the promisee on the promise of another.” (Emphasis in original.) Folks,
Inc. v. Dobbs, 181 Ga. App. 311 (2) (352 SE2d 212) (1986).


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      When the Rymers brought their flooding problems to the attention of Polo,

it took the position that neither the Rymers nor Polo was responsible for the

management and upkeep of the stormwater facilities. Instead, Polo asserted

responsibility rested with the county. Moreover, Polo notified the Rymers that

it was commissioning a study of the stormwater facilities in the subdivision

seeking recommendations for repairs, and it assured the Rymers that it would

make repairs to the stormwater facilities at its own expense. John Rymer

averred that he relied on Polo’s promises to make the necessary repairs, that the

repairs were never made, and that the Rymers experienced additional flooding.

Under these facts, a jury could find that the Rymers reasonably relied upon

Polo’s promise. See Ambrose v. Sheppard, 241 Ga. App. 835, 837 (528 SE2d

282) (2000) (questions of reasonable reliance are best left to the jury to resolve).

 Furthermore, a jury could determine there was sufficient consideration to

enforce Polo’s promise. See Pepsi Cola Bottling Co. v. First Nat. Bank, 248 Ga.

114, 116 (2) (281 SE2d 579) (1981) (within context of promissory estoppel,

consideration can be found in “[a]ny benefit accruing to him who makes the

promise, or any loss, trouble, or disadvantage undergone by, or charge imposed

upon, him to whom it is made”). See also Folks, Inc. v. Dobbs, supra.

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Accordingly, it cannot be said the trial court erred in denying Polo’s motion for

summary judgment in its dispute with the Rymers.

      2. The addendum. Polo contends the trial court erred in granting the

county’s motion for summary judgment and denying its motion for summary

judgment because the addendum impairs the obligation of contracts or is

otherwise unconstitutional and invalid. We need not decide this issue because,

according to its very own terms, the addendum does not apply to Polo. More

specifically, the language of the addendum applies only to new developments

and redevelopments, not pre-existing developments such as Polo.

      Section 1 of the addendum, entitled “Purpose and Applicability,”

provides:

            The Department of Engineering has adopted the Georgia
      Stormwater Management Manual (GSMM) as the basis for the
      design and review of stormwater management facilities and
      practices in Forsyth County. The purpose of this addendum is to
      augment and clarify the guidelines set out in the GSMM for the
      specific management of stormwater runoff within unincorporated
      Forsyth County, Georgia . . . Chapter 34, Article V Stormwater
      Management of the Forsyth County Code of Ordinance (the
      Ordinance) provides the Department with the authority to manage
      stormwater based on the scope of responsibilities it defines. In
      summary, persons wishing to develop land in Forsyth County
      should reference the following documents for guidance: . . .
            Chapter 34, Article V Stormwater Management of the Forsyth

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      County Code of Ordinance provides the legal authority for
      stormwater management, definitions and a description of the
      appeal/penalty processes.
      Georgia Stormwater Management Manual (GSMM) . . . for
      guidance on implementing stormwater management
      requirements during development. . . .
      Forsyth County Addendum (this document) to the GSMM
      provides county-specific clarification and is organized into
      the following sections:
      Section 1: Purpose and Applicability — provides guidance on
      the application and exemption of these regulations to new
      development and redevelopment projects.
      Section 2: Stormwater Conveyance (Drain Pipe) Design . . .
      Section 3: Stormwater Detention Facilities and Practices . . .
      Section 4: Stormwater Plan Review Process and
      Requirements — delineates the process for the design and
      review of stormwater management facilities for new and
      redevelopments, including the pre- and post-construction
      requirements necessary to obtain development permits.
      Section 5: Supplemental Stormwater Documents . . .

Section 1.1 “Applicability” reads:
      All land development activities in Forsyth County . . . shall be
governed by [the ordinance]. Land development activities meeting
any of the following criteria will be required to comply with the
stormwater management standards of the [ordinance, GSMM and
addendum]:
      1. new development that involves the creation of 5,000
square feet or more of impervious cover, or that involves other land
development activities disturbing (one) 1 acre or more;
      2. redevelopment that includes the creation or addition of
5,000 square feet or more of impervious cover, or that involves
other land development activity disturbing one (1) acre or more;
      3. those developments that regardless of size are defined to
be a hotspot land use by the Ordinance, or

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            4. those developments that construct improvements in phases
      and that meet criterion No. 1 above when considering the
      cumulative runoff increase due to all phases.
      When one of these conditions is met, the development shall be
      governed by the stormwater design specifications in the GSMM and
      Section 3 of this addendum.

      Section 4 of the addendum, entitled “Stormwater Management Review

Requirements” states:

            This section provides guidance on the process for the design
      and review of stormwater management facilities for new and
      redevelopments in Forsyth County, including the pre- and post-
      construction requirements necessary to obtain development permits.

      As can be seen, the addendum is replete with statements demonstrating it

is to be applied to projects which come into being after its adoption. Section 1

of the addendum, the “applicability” section, states that the addendum is

applicable to “new developments” and “redevelopments.”           This point is

emphasized in section 1.1 where the addendum specifies that the addendum is

to be applied to new developments and redevelopments with 5,000 square feet

or more of impervious cover. Again, in section 4, the addendum speaks of its

applicability to “new developments” and “redevelopment.” And in section

4.2.2, we also find language looking to the future — i.e., “the association will

have to be formed prior to final plat approval” — that is consistent with a

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prospective application of the addendum. The only phrase in the entire

addendum which arguably implies a retroactive application to existing

developments is also found in section 4.2.2: “Stormwater Division personnel

may perform periodic inspections of existing and new private stormwater

management facilities to determine whether they are maintained properly.”

However, upon close inspection, it is clear that, in context, the word “existing”

describes “stormwater management facilities,” not subdivisions. In other words,

section 4.2.2 can be applied to “new private stormwater management facilities”

or “existing” stormwater management facilities in a “redevelopment.” But it is

not to be applied to a pre-existing subdivision.3

      Polo was developed nearly twenty years before the addendum was

adopted. It is not a “new development” or “redevelopment.” Accordingly, it is

not subject to section 4.2.2 of the addendum. See generally McNeal Constr. Co.

v. Wilson, 271 Ga. 540, 541 (522 SE2d 222) (1999) (“legislative intent must be

clear before a statute is applied retroactively”). It follows that the trial court



      3
         At oral argument, counsel for the county was asked to square the forward
looking language of the addendum with the county’s assertion that the addendum applied
to Polo. We do not find counsel’s response – the addendum does not contain language of
limitation – persuasive.

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erred in granting the county’s motion for summary judgment and denying Polo’s

motion for summary judgment vis-a-vis the county.

      Judgment affirmed in Case No. S13A1635. Judgment reversed in Case

No. S13A1636. All the Justices concur.



   Decided January 21, 2014 – Reconsideration denied February 24, 2014.

            Covenants. Forsyth Superior Court. Before Judge Bagley.

            Lueder, Larkin & Hunter, John T. Lueder, for appellant.

            Temple, Strickland, Dinges & Schwartz, William A. Dinges, Teague

& Chambless, James S. Teague, Jr., Keisha M. Chambless, Jarrard & Davis,

Kenneth E. Jarrard, Paul B. Frickey, Paul J. Dzikowski, for appellees.




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