Bersch v. Hauck

177 S.E.2d 844, 122 Ga. App. 527, 1970 Ga. App. LEXIS 932

• Court: Court of Appeals of Georgia
• Decided: September 8, 1970
• Docket: 45433
• Status: Published

Opinion

Jordan, Presiding Judge.

The Atlanta-Fulton County Joint Board of Adjustment allowed a variance to permit development of a parcel of land with coverage of 43.69% instead of 35%. On appeal to the superior court the action of the board was declared null and void. Held:

A person who has a substantial interest as the term is used in Ga. L. 1946, pp. 191, 198 (Code Ann. §69-827) entitling him to an appeal to the superior court is one who can show he is an affected property owner who will suffer special damages. Victoria Corp. v. Atlanta Merchandise Mart, 101 Ga. App. 163 (1, 2) (112 SE2d 793).

Argued July 7, 1970 Decided September 8, 1970 Rehearing denied September 29, 1970 Hansell, Phost, Brandon & Dorsey, W. Rhett Tanner, for appellants. Greene, Buckley, DeRieux & Jones, James A. Eichelberger, Alfred B. Adams, III, Jones & Somers, Fred L. Somers, Jr., for appellees. Ware, Sterne & Griffin, Alton H. Hopkins, amicus curiae.

Applying the guidelines established by the Victoria case, supra, the evidence adduced in this case fails to support the determination of the trial judge that the complainants were entitled to appeal the decision of the board to the superior court. Hauck and the Druid Hills Civic Association own no property affected by the variance, and Tatman testified he "wouldn’t be injured” and had "no dollar value to put on” his property as affected by the variance. In the absence of any showing of the probability of substantial damage, we do not reach a consideration of the further qualification set forth in the 'Victoria case to the effect that the probable damages must be of a nature not common to other property owners similarly situated. Absent a proper showing of substantial interest the trial judge should have dismissed the appeal to the superior court.

Judgment reversed.

Eberhardt and Pannell, JJ., concur.