Opinion
38079.
DECIDED JANUARY 29, 1960.
Zoning, etc. Fulton Superior Court. Before Judge Tanksley. April 17, 1959.
Heyman, Abram Young, Robert G. Young, for plaintiff in error.
J. C. Savage, Robert G. Young, Calhoun Calhoun, Foy L. Hood, Robert S. Wiggins, contra.
1. As used in Ga. L. 1946, pp. 191, 198 (Code, Ann., § 69-827), the term "substantial interest" as applied to a party entitled to appeal from a decision of the Atlanta-Fulton County Joint Board of Adjustment granting variances from the zoning ordinances of the City of Atlanta means an interest which is of "real worth and importance; of considerable value; valuable." Tax Commission of Ohio v. American Humane Education Society, 42 Ohio App. 4 ( 181 N.E. 557). Such term is synonymous with the word "aggrieved" used as descriptive of those entitled to appeal in similar statutes of other jurisdictions. See Gilliam v. Etheridge, 67 Ga. App. 731 (1) ( 21 S.E.2d 556).
2. In order for a person to have a substantial interest in a decision of the Board of Adjustment, he must show that his property will suffer some special damages as a result of the decision of the board complained of, which is not common to other property owners similarly situated. His interest must be more than merely that of a taxpayer of the municipality seeking "to have a strict enforcement of zoning regulations for the benefit of the general welfare of the community or general enhancement of property values." He "may not assume the role of champion of a community to challenge public officers to meet him in courts of justice to defend their official acts." Blumberg v. Hill, 119 N. Y. So.2d 855, 857. A property owner has no strictly private right in the enforcement of zoning ordinances unless such rights are expressly conferred by statute. Circle Lounge Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427 ( 86 N.E.2d 920).
3. The mere increase in traffic congestion adjacent to one's property as the result of improvements erected on nearby property and the attendant inconvenience resulting therefrom which are damages suffered alike by all property owners similarly situated, does not give to one individual such a substantial interest in the decision of the Board of Adjustment permitting the improvement as to authorize an appeal therefrom. Such increase in traffic congestion and attendant difficulties in finding parking places are matters which address themselves to the police authorities of the municipality rather than to the zoning authorities. Property Owners Association of Garden City Estates, Inc. v. Board of Zoning Appeals, 123 N. Y. So.2d 716, 718.
4. In the instant case, the appellant's evidence failed to show that it would suffer any peculiar or special injury which would have any substantial effect on the value of its property or that the decision of the Board of Adjustment granting the variances to the Atlanta Merchandise Mart would work some particular injury to its property not common to other property owners similarly situated. Rather, the evidence shows that whatever injury will be suffered by the Victoria Corporation as a result of the decision complained of is a mere inconvenience suffered by all alike who own property, or an interest therein, within a radius of 1/4 mile or more from the proposed building. Such an inconvenience is a condition incident to urban living. It is merely the result of normal, urban growth and development. To hold that such an inconvenience would give to any resident or property holder of an urban area the right to override the decisions of boards of zoning appeals any time such property owner or resident disagreed with such decision would be a dangerous precedent to establish. It would result in materially slowing, if not completely stopping, the inevitable and necessary growth of large modern cities. In the absence of a showing of the probability of a substantial injury or damage to the appellant, the judgment of the superior court holding that it did not have such a substantial interest in the matter as to authorize its appeal from the decision of the Board of Adjustment was proper.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
DECIDED JANUARY 29, 1960.
Victoria Corporation filed an appeal to the superior court from a decision of the Atlanta-Fulton County Joint Board of Adjustment granting certain variances and exceptions from the zoning regulations of the City of Atlanta to Atlanta Merchandise Mart, Inc. Incorporated in the petition on appeal was a prayer "that the Atlanta Merchandise Mart, Inc., be permanently enjoined from erecting the building proposed to be constructed," and, "that W. R. Wofford, the building inspector of the City of Atlanta, be permanently enjoined from issuing a building permit to the Atlanta Merchandise Mart, Inc." The case came on for a hearing before the judge of the superior court, and it appeared from the record that the appellant therein had not been a party to the hearing before the Board of Adjustment. The evidence adduced in the superior court showed that the appellant corporation owned property approximately 2 1/2 blocks, or 1/4 mile distant from the proposed building to be erected by the Atlanta Merchandise Mart, and that the only objection advanced by officers of the Victoria Corporation to the erection of the building was the increased traffic and congestion of the streets which would be generated or induced by the presence of such building, and that it was the erection of the building itself which they objected to and that if the variances objected to were not granted the building probably would not be erected. The judge of the superior court held that the appellant was not a party with a substantial interest in the decision of the Board of Adjustment within the meaning and intent of Ga. L. 1946, pp. 191, 198 (Code, Ann., § 69-827) and dismissed the appeal. That judgment is assigned as error.