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Terrell Cnty. Bd. of Tax Assessors v. Goolsby

The superior court erred to the extent it concluded that the operation of a commercial business on property subject to a conservation use covenant never breaches such a covenant.

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The Terrell County Board of Tax Assessors “the board” appeals the decision of the superior court that Jason and Brian Goolsby did not breach a conservation use covenant. As to the threshold issue of jurisdiction, we reject the Goolsbys’ argument that the notice of appeal was untimely; the superior court properly extended the appeal deadline.

As to the merits, the board contends that the Goolsbys breached the covenant by operating a commercial grain business on the property, notwithstanding that the property otherwise qualified as a bona fide conservation use property. The superior court rejected the board’s contention, holding that procuring or operating a business on the subject property cannot constitute a breach of the covenant. In so holding the superior court erred. But if use of the property in a business is incidental, occasional, intermediate or temporary and not detrimental to or in conflict with its primary, qualifying use of the property, procuring or operating a business on otherwise qualified property is not a breach of the agreement and does not prevent the property from being classified as bona fide conservation use property. Because the superior court’s analysis was founded on an erroneous construction of the bona fide conservation use covenant statute, we vacate the judgment and remand to the superior court for reconsideration.

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