Jackson v. Abercrombie

Supreme Court of Georgia

Jackson v. Abercrombie

194 S.E.2d 473, 229 Ga. 775, 1972 Ga. LEXIS 771

CourtSupreme Court of Georgia

DecidedNovember 30, 1972

Docket27473

StatusPublished

Cited by7 cases

This text of 194 S.E.2d 473 (Jackson v. Abercrombie) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jackson v. Abercrombie, 194 S.E.2d 473, 229 Ga. 775, 1972 Ga. LEXIS 771 (Ga. 1972).

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Opinions

Nichols, Justice.

This appeal arises out of a complaint seeking a writ of mandamus to require the Board of Commissioners of Clayton County to issue a conditional use permit. The trial court found that the proposed use was a conditional use in the zone where the applicant’s property was located and that the evidence presented showed a compliance with all the requirements set forth [776]*776in the zoning ordinance. The trial court further found that evidence had been presented to the county commissioners which would permit them in their discretion to refuse the permit. The trial court denied the mandamus absolute and the present appeal is from such judgment. The sole enumeration of error complains of the entry of such judgment. Held:

Argued October 10, 1972 Decided November 30, 1972. Albert B. Wallace, for appellant. John R. McCannon, Glaze & Glaze, George E. Glaze, for appellees.

Under the decision in Gifford-Hill & Co. v. Harrison, 229 Ga. 260 (191 SE2d 85), and the authorities there cited, the trial court erred in refusing to grant the mandamus absolute.

While the enabling legislation in the Gifford-Hill case was a local Act relating to DeKalb County and the enabling legislation upon which the ordinance in the Clayton County case was based was a general Act (Ga. L. 1957, p. 420; Code Ann. Ch. 69-12), the language in both Acts requires enforcement by the withholding of building permits, etc. and does not permit a use permit to be withheld based upon the discretion of the authorities.

Unlike the zoning ordinance dealt with in Hyman v. Pruitt, 226 Ga. 625 (176 SE2d 707), where no standards were set forth for conditional uses in the ordinance, here the ordinance set forth the standards to be complied with and the applicant admittedly met such standards. In setting explicit standards to be met in the ordinance, the authorities exercised their discretion. Compare Rogers v. Mayor &c. of Atlanta, 110 Ga. App. 114 (137 SE2d 668).

Judgment reversed.

All the Justices concur, except Jordan, J., who concurs specially, and Undercofler, J., who dissents.

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Nichols, Justice.

This appeal arises out of a complaint seeking a writ of mandamus to require the Board of Commissioners of Clayton County to issue a conditional use permit. The trial court found that the proposed use was a conditional use in the zone where the applicant’s property was located and that the evidence presented showed a compliance with all the requirements set forth [776]*776in the zoning ordinance. The trial court further found that evidence had been presented to the county commissioners which would permit them in their discretion to refuse the permit. The trial court denied the mandamus absolute and the present appeal is from such judgment. The sole enumeration of error complains of the entry of such judgment. Held:

Argued October 10, 1972 Decided November 30, 1972. Albert B. Wallace, for appellant. John R. McCannon, Glaze & Glaze, George E. Glaze, for appellees.

Under the decision in Gifford-Hill & Co. v. Harrison, 229 Ga. 260 (191 SE2d 85), and the authorities there cited, the trial court erred in refusing to grant the mandamus absolute.

While the enabling legislation in the Gifford-Hill case was a local Act relating to DeKalb County and the enabling legislation upon which the ordinance in the Clayton County case was based was a general Act (Ga. L. 1957, p. 420; Code Ann. Ch. 69-12), the language in both Acts requires enforcement by the withholding of building permits, etc. and does not permit a use permit to be withheld based upon the discretion of the authorities.

Unlike the zoning ordinance dealt with in Hyman v. Pruitt, 226 Ga. 625 (176 SE2d 707), where no standards were set forth for conditional uses in the ordinance, here the ordinance set forth the standards to be complied with and the applicant admittedly met such standards. In setting explicit standards to be met in the ordinance, the authorities exercised their discretion. Compare Rogers v. Mayor &c. of Atlanta, 110 Ga. App. 114 (137 SE2d 668).

Judgment reversed.

All the Justices concur, except Jordan, J., who concurs specially, and Undercofler, J., who dissents.

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194 S.E.2d 473, 229 Ga. 775, 1972 Ga. LEXIS 771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-abercrombie-ga-1972.

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