Russell v. Smokerise Bath & Racquet Club, Inc.

256 S.E.2d 457, 243 Ga. 724, 1979 Ga. LEXIS 1048

• Court: Supreme Court of Georgia
• Decided: May 31, 1979
• Docket: 34761
• Status: Published

Opinions

Nichols, Chief Justice.

Smokerise sought mandamus absolute requiring the DeKalb County Board of Commissioners and the county’s development director to issue a permit for installation of lighting on two of its four tennis courts. Smokerise, a nonprofit community recreation club, operated, among other facilities, two tennis courts. In 1973 it applied for a setback variance to construct two additional tennis courts. The variance was granted "with the condition that there are no lights and adequate drainage is provided.” When Smokerise applied for a permit to light its two previously existing tennis courts, the county read the lighting portion of this condition as being applicable to all four of the tennis courts. The trial court found that the "no lights” condition as well as the "adequate drainage” condition applied only to the two new tennis courts and that the two original tennis courts met all the zoning requirements for installation of lights. He ordered the lighting permit to be issued.

Submitted April 10, 1979 Decided May 31, 1979.

1. The county’s first two enumerations contend that although the complaint is denominated as being one for mandamus absolute, it really is an appeal or- certiorari that has not been filed within 30 days as required by Code Ann. § 69-1211.1 or by Ga. L. 1943, p. 930 and Ga. L. 1956, p. 3332. Smokerise correctly points out that there is no showing by the county that it, in fact, operates under laws that include the appeal or the certiorari provisions cited in the county’s brief. There is no merit in the first two enumerations of error.

2. The next two enumerations of error contend that the trial court erred in holding that the "no lights” condition applies only to the two new courts rather than to all four courts.

The application for the variance from the setback requirements as submitted and as granted in 1973 clearly did not involve the two then-existing tennis courts. The question presented to the trial court was one of whether or not the lighting condition attached to all four tennis courts, although the new courts alone were the subject matter of the 1973 application. The trial court correctly held that the lighting condition should not be applied beyond its plain terms. City of Douglasville v. Willows, Inc., 236 Ga. 488 (224 SE2d 363) (1976). It was not contended that the drainage condition would apply to the old courts. Neither should the county be allowed to extend the plain, objective intent of the lighting condition by testimony that county officers subjectively meant for it to attach to all four courts. Taylor v. Shetzen, 212 Ga. 101 (4) (90 SE2d 572) (1955). There is no merit in the third and fourth enumerations of error.

3. The remaining enumeration of error contends that the trial court erred in refusing the county’s demand for jury trial. The trial court correctly held that the lighting condition was not ambiguous and that neither judicial construction nor resolution by a jury of any factual issue was required.

Judgment affirmed.

All the Justices concur. George P. Dillard, Gail C. Flake, for appellants. Harvey, Willard, Elliott & Olsen, Wendell K. Willard, for appellee.