On May 3, 2007, Peachtree City annexed and rezoned two tracts of land in western Fayette County using the 100 percent method. See OCGA § 36-36-21.1 On June 4, 2007, city resident David Worley filed a petition for declaratory and injunctive relief. In his petition as first amended he argued, among other things, that the rezoning did not occur in accordance with the Zoning Procedures Law, OCGA § § 36-66-1 et seq., and that the annexation was ultra vires because it created an “unincorporated island” completely surrounded by Peachtree City in violation of OCGA § 36-36-4. On the latter count, Worley sought to enjoin the city from acting on the annexation and from allowing development or taking any other action with regard to the annexed property. On November 6, 2008, the city annexed the alleged unincorporated island. On January 13, 2009, the trial court granted a motion to dismiss Counts 2 through 6 of Worley’s amended complaint, which addressed the zoning and other issues, on the ground that Worley did not have standing and other reasons. The court held that Worley did have standing on Count 1, which challenged the annexation; it became his sole remaining claim.
On the day before the April 1, 2009 hearing on cross-motions for summary judgment, Worley amended Count 1 to allege that the May 3 annexation created a second and third unincorporated island in violation of a different subsection of OCGA § 36-36-4; he alleged that the annexation resulted in two other tracts of land becoming totally surrounded by two municipalities —Peachtree City and the City of Tyrone. On April 12, 2009, the trial court granted summary judgment in favor of the city on the original unincorporated island count on the ground that it was moot as a result of the annexation of that island. The court refused to consider Worley’s second amended complaint and the attachments thereto on the ground that they were filed too late in connection with his motion for summary judgement. Worley filed a notice of appeal; he challenges the annexation, not the zoning issues that were dismissed.2 We reverse and remand for entry of summary judgment in favor of Worley.
