Opinion
39345.
DECIDED APRIL 9, 1962.
Zoning regulations, etc. Fulton Superior Court. Before Judge Pharr.
Huie, Etheridge Harland, James R. Harland, Jr., Harry L. Cashin, Jr., for plaintiff in error.
Hansell, Post, Gardner, Brandon Dorsey, Dom H. Wyatt, contra.
The decision of the Atlanta-Fulton County Joint Board of Adjustment, granting a variance from certain requirements of the zoning regulations of the City of Atlanta, being unauthorized by the evidence before the board, the Superior Court of Fulton County did not err in reversing the decision of said board on appeal.
DECIDED APRIL 9, 1962.
On June 23, 1960, B. L. Ivey, Inc., filed an appeal to the Atlanta-Fulton County Joint Board of Adjustment, in which it sought a variance from the requirements of R-2 (residential) zoning regulations of the City of Atlanta to permit the re-subdivision of three existing 100 foot lots fronting on Northside Drive (subdivided prior to the enactment of the Zoning Ordinance of 1954) into two lots of 125 and 175 feet frontage on Northside Drive and one lot of 125 feet frontage on Broadland Road, and also to permit the lots with approximately 35,000 square feet to be allowed, instead of one acre, in an R-2 residential district. The property in question fronts 300 feet on the eastern side of Northside Drive at the corner of Broadland Road, and is three hundred forty-nine and two-tenths (349.2) feet deep.
On July 15, 1960, the appeal of B. L. Ivey, Inc., came on to be heard before the Atlanta-Fulton County Joint Board of Adjustment, at which time the following evidence was adduced in behalf of the appellant and the objector, Jean C. Allen.
James R. Harland, attorney for the appellant, testified that the purpose of the request for variance was to rearrange three lots which were existing at the time of the enactment of the 1954 Zoning Ordinance; that each of these lots contained approximately 35,000 square feet. Harland testified that, when the present ordinance was enacted (zoning ordinance of the City of Atlanta), it imposed a 30 foot side line on the corner lot (No. 1) along the side street at Northside Drive and Broadland Road and a 15 foot side line on the north side; that this is an area in which the value of the lots varies from $7,500 and up, and that the appellant proposes to resubdivide the three 100 foot lots fronting on Northside Drive. Harland testified that the re-subdivision would eliminate the inherent impossibility of the construction problem created by the 30 foot side line on the corner lot and enable the appellant, B. L. Ivey, Inc., to enhance the appearance of the area; that as the lots presently exist, they are required to set back 120 feet from Northside Drive, maintain a 30 foot side yard on Broadland Road and 15 feet on the north side of the corner lot and a rear yard of 40 feet; that this situation precludes the building of houses in keeping with the neighborhood ($40,000 and up), but in fact necessitates and requires the building of a "shot-gun" type house only 55 feet in width; and that they do not desire to "jam" a large house into this space, which under the present arrangement they would have to do.
On being interrogated by a member of the board, counsel for appellant stated that the particular hardship involved which allegedly justified the granting of the variance is that the lots as they presently exist "are required to set back 120 feet from Northside Drive; maintain a thirty (30) foot side yard on the side street side and fifteen (15) feet on the north side of the corner lot and a rear yard of forty (40) feet; that this would necessitate the building of a `shot-gun' type house, whereas, if the lots are rearranged, they can build houses in keeping with the neighborhood." B. L. Ivey, President of B. L. Ivey, Inc., testified that the lots are quite expensive, and in order for the builder to properly utilize the lots, he must build a nice house; and that, if he could not build a structure in keeping with the area, the character of the neighborhood would be seriously impaired.
Counsel for the objector, Jean C. Allen, testified that it appeared from this application that it was filed on the basis of convenience and not on any unusual hardship; that the applicant has recently purchased the subject property and presumably the present zoning of the property was appropriately reflected in the purchase price; that the tone of the neighborhood (along Broadland) is such that the property owners, although subject to R-3 zoning, have agreed on a setback of at least 125 feet; that, if the instant variance is granted, the lot facing Broadland would have a setback of only 60 to 90 feet at the maximum; that the objector, Jean C. Allen, the owner of the first house (adjacent to the subject property), has a setback of 150 feet on the side nearest to appellant's property and would, in all probability, have her front door 20 to 30 feet to the rear of the back door of the house to be built next door; that houses on Broadland range in value from $40,000 and up, and that the building of such a structure out of line with the other houses along Broadland would unreasonably diminish property values, particularly that belonging to the objector.
After the public hearing, the matter was considered by the Board of Adjustment in executive session, and the variance was approved by unanimous vote.
Thereafter, on August 8, 1960, the objector, Jean C. Allen, filed an appeal from the decision of the Atlanta-Fulton County Joint Board of Adjustment granting the variance to the Superior Court of Fulton County. On October 16, 1961, a hearing was held on the appeal and the court on November 16, 1961, entered an order reversing the decision of the Atlanta-Fulton County Joint Board of Adjustment. To this judgment B. L. Ivey, Inc., excepted, bringing the case to this court for review.
It is contended by counsel for the plaintiff in error, B. L. Ivey, Inc. (the appellant before the Atlanta-Fulton County Joint Board of Adjustment) that the superior court erred in reversing said board on appeal for the reason that the judge of the superior court merely substituted his judgment for that discretion lawfully relegated to, and properly exercised by the board, in determining whether or not a variance was justified in the instant case. While the board of adjustment is given the discretion under Code Ann. § 69-824(2) to authorize variances from existing zoning regulations in specific cases on appeal, this discretion is not an unbridled one but must be exercised in strict accordance with provisions of that Code section, which provides as follows: "To authorize upon appeal in specific cases such variance from the terms of such regulations as will not be contrary to the public interest, where, owing to special conditions fully demonstrated on the basis of the facts presented, literal enforcement of the provisions of the regulations will result in great practical difficulties or unnecessary hardship, and so that the spirit of the regulation shall be observed and substantial justice done." Under the above-quoted Code section it is seen that the board of adjustment is authorized to grand variances only where the same will not be contrary to the public interest, and where it is fully shown that great practical difficulty or unnecessary hardship will result from literal enforcement of the zoning regulations. What constitutes "unnecessary hardship" or "great practical difficulty," and whether or not there is any evidence to authorize a finding that the same exists in any specific case, are questions of law which the superior court has jurisdiction to decide on appeal under the provisions of Code Ann. § 69-829.
The judge of the superior court therefore was authorized to review these questions and the vital question before this court is whether or not there was any evidence before the board of adjustment to authorize the grant of a variance based upon the categorical prerequisites of "unnecessary hardship" and "great practical difficulty," as provided in Code Ann. § 69-824(2). In this connection the evidence presented to the board by the appellant, upon whom the burden of proof rested, simply showed that, unless the desired variance from the existing zoning regulations was granted, the appellant could only construct a house 55 feet in width on the corner lot and houses 70 feet in width on the other two lots of the subject property. There was no evidence to show that the appellant intended to construct houses greater than 55 feet or 70 feet in width on this property or in what manner it would be harmed by its inability to do so under the existing regulations other than the statement of the attorney for the appellant that only "shot-gun" houses could be built on said lots rather than houses which would be in keeping with the general character of the neighborhood. The record before the board, however, disclosed that the lots immediately facing the subject property on Northside Drive were likewise 100 foot lots and that on the lot adjacent to the subject property, which lot also had frontage of 100 feet on Northside Drive, a "beautiful structure" had been built.
While this evidence disclosed that the appellant might be inconvenienced by its failure to secure a variance, such evidence did not "fully demonstrate" that the literal enforcement of the existing zoning regulations would result in great practical difficulty or unnecessary hardship to the appellant, as provided in Code Ann. § 69-824(2). Since this is the only basis upon which the board could act in this case, it follows that the grant of the desired variance was not authorized and the court did not err in so ruling and in reversing the decision of the Atlanta-Fulton County Joint Board of Adjustment.
Judgment affirmed. Nichols, P. J., and Frankum, J., concur.