Wofford v. Porte

Supreme Court of Georgia

Wofford v. Porte

93 S.E.2d 690, 212 Ga. 533, 1956 Ga. LEXIS 435

CourtSupreme Court of Georgia

DecidedJuly 10, 1956

Docket19313

StatusPublished

Cited by7 cases

This text of 93 S.E.2d 690 (Wofford v. Porte) 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.

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Wofford v. Porte, 93 S.E.2d 690, 212 Ga. 533, 1956 Ga. LEXIS 435 (Ga. 1956).

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Opinions

Duckworth, Chief Justice.

The complaint here is because the Building Inspector of the City of Atlanta denied an application for permits to add one bathroom and one porch to a building located in an area zoned to a one- and two-family dwelling use. The zoning ordinance forbids structural changes, which are defined as: “Any change in the supporting members of a structure, such as bearing walls or partitions, columns, beams or girders, or any substantial change in the roof or in the exterior walls.” There is created by the zoning ordinance a board of adjustment, and appeal from decisions of the building inspector to this board is provided for therein. On such appeal this board is authorized to reverse the building inspector and even allow alterations forbidden by the ordinance when such is necessary to alleviate hardship and will serve the public convenience and welfare.

The property owner has made no attempt to obtain the permits, by pursuing the plain remedy afforded her under the ordinance. Mandamus is never an available remedy when there is a plain specific legal remedy. Code § 64-101; DeBerry v. Spikes, 188 Ga. 222 (3 S. E. 2d 719); Gray v. Gunby, 206 Ga. 63 (55 S. E. 2d 588).

The case is different from that of Gay v. City of Lyons, 209 Ga. 599 (74 S. E. 2d 839), which holds that mandamus will lie when the plaintiff contends that the zoning ordinance prohibiting the permit is unconstitutional and there is no other adequate rem[535]*535edy to secure a determination of that question. Whether or not the Lyons case is sound, here the property owner, instead of doing as the owner there did by directly attacking the ordinance as unconstitutional, merely prayed for mandamus and thereafter demurred to the answer on the ground that the construction would not violate the ordinance, but if it be construed that the work did not violate it, the ordinance is unconstitutional.

There being an adequate remedy at law and no valid constitutional attack on the ordinance having been made such that mandamus would lie, it was error to grant the writ of mandamus. Ledbetter v. Callaway, 211 Ga. 607 (87 S. E. 2d 317).

Judgment reversed.

All the Justices concur except Head, J., who dissents. Mobley, J., concurs in the judgment, but not in all that is said in the opinion.

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Duckworth, Chief Justice.

The complaint here is because the Building Inspector of the City of Atlanta denied an application for permits to add one bathroom and one porch to a building located in an area zoned to a one- and two-family dwelling use. The zoning ordinance forbids structural changes, which are defined as: “Any change in the supporting members of a structure, such as bearing walls or partitions, columns, beams or girders, or any substantial change in the roof or in the exterior walls.” There is created by the zoning ordinance a board of adjustment, and appeal from decisions of the building inspector to this board is provided for therein. On such appeal this board is authorized to reverse the building inspector and even allow alterations forbidden by the ordinance when such is necessary to alleviate hardship and will serve the public convenience and welfare.

The property owner has made no attempt to obtain the permits, by pursuing the plain remedy afforded her under the ordinance. Mandamus is never an available remedy when there is a plain specific legal remedy. Code § 64-101; DeBerry v. Spikes, 188 Ga. 222 (3 S. E. 2d 719); Gray v. Gunby, 206 Ga. 63 (55 S. E. 2d 588).

The case is different from that of Gay v. City of Lyons, 209 Ga. 599 (74 S. E. 2d 839), which holds that mandamus will lie when the plaintiff contends that the zoning ordinance prohibiting the permit is unconstitutional and there is no other adequate rem[535]*535edy to secure a determination of that question. Whether or not the Lyons case is sound, here the property owner, instead of doing as the owner there did by directly attacking the ordinance as unconstitutional, merely prayed for mandamus and thereafter demurred to the answer on the ground that the construction would not violate the ordinance, but if it be construed that the work did not violate it, the ordinance is unconstitutional.

There being an adequate remedy at law and no valid constitutional attack on the ordinance having been made such that mandamus would lie, it was error to grant the writ of mandamus. Ledbetter v. Callaway, 211 Ga. 607 (87 S. E. 2d 317).

Judgment reversed.

All the Justices concur except Head, J., who dissents. Mobley, J., concurs in the judgment, but not in all that is said in the opinion.

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93 S.E.2d 690, 212 Ga. 533, 1956 Ga. LEXIS 435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wofford-v-porte-ga-1956.

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