Appellants, John and Molly Bickford, Ronald C. and Sandra Welch, Ben and Anne Witcher, Jerry and Gayle Hobbs, and Joe and Ann Phillips, as adjoining property owners to Yancey Development Co., Inc., brought a declaratory judgment action to determine if the 65.1 acres abutting Mayes Road, Cobb County and purchased on September 29, 2000 by Yancey was subject to a restrictive covenant requiring minimum 2 acre lots. All parties filed cross-motions for summary judgment on undisputed facts, and the trial court granted Yancey’s motion and denied the Appellants’ motion, finding that there was no restrictive covenant in force. Finding no error, we affirm.
The facts not in dispute were: that Yancey owned the 65.1 acres and purchased it in 2000 from a grantee of Frank Swift; that Cobb County issued a clearing permit to Yancey to develop the property as R30, i.e., 30,000 square foot minimum lot size; that the Appellants were adjoining property owners seeking to enjoin the execution of the clearing permit as ultra vires, because they contended that the property was zoned R80, i.e., minimum lot size of two acres; that on December 26, 1972, the property was zoned R30; that in 1977, Frank Swift owned 165.54 acres, including this land; that on August 30, 1977, Swift filed an Application for Variance from the Cobb County Board of Zoning Appeals requesting the waiver of the 10 acre lot requirement under the then 4-22.2 Cobb County Zoning Code and omission of curb and guttering on some lots; that on October 13, 1977, the variance as requested was granted “subject to covenant on property being recorded showing average lot size as 10 acres, minimum house size of 1600 sq. ft. and per revised site plan marked exhibit A and per subdivision regulations 422-2, which spells out the requirements for subdivision with 2 or more acres”; that there was no revised plat marked exhibit A; that no formal covenants were ever recorded; that on November 3, 1977, a plat of the property was recorded which contained the language: “Zoning Variance Stipulation-granted October 13, 1977. 1. 1600 sq. ft. minimum area for dwelling unit. 2. Two-acre minimum lot size”; and that there was no subsequent filing or renewal of such provision. As Swift sold lots in his subdivision to the Appellants, he made oral representation to each that the lot size was restricted to two acres. On August 2, 1996, Swift’s deed to Zion Tabernacle Ministeries, Inc. was recorded with Exhibit A attached, which contained only legal descriptions and easements. The May 5, 1981, deed to the Bickfords made no reference to any covenants. In fact, none of the deeds conveyed by Swift contained any covenants, and only the deed to Ray F. Reece mentioned that it was deeded subject to any recorded restrictive covenants.
