ATLANTA BD. OF ZONING ADJUSTMENT v. Kelly

• Court: Georgia Court of Appeals
• Writing for the Court: HAROLD R. BANKE, Senior Appellate.
• Citation: ATLANTA BD. OF ZONING ADJUSTMENT v. Kelly, 520 S.E.2d 269, 238 Ga. App. 799 (Ga. App. 1999)
• Decision Date: 30 June 1999
• Docket Number: No. A99A1436.,A99A1436.
• Parties: CITY OF ATLANTA BOARD OF ZONING ADJUSTMENT et al. v. KELLY.

520 S.E.2d 269

238 Ga. App. 799

CITY OF ATLANTA BOARD OF ZONING ADJUSTMENT et al. v. KELLY.

No. A99A1436.

Court of Appeals of Georgia.

June 30, 1999.

David D. Blum, Lemuel H. Ward, Atlanta, Michael H. Hilliard, East Point, for appellants.

Powell, Goldstein, Frazer & Murphy, Tracy M. Culver, Atlanta, Carl E. Westmoreland, Jr., Macon, Kirwan, Parks, Chesin & Miller, Larry Chesin, Atlanta, for appellee.

HAROLD R. BANKE, Senior Appellate Judge.

The City of Atlanta Board of Zoning Adjustment and its members (collectively "BZA") appeal the entry of default judgment which reversed the BZA's denial of a variance to homeowner Scott Kelly.

The underlying case arose after Kelly commenced work on a construction project involving a new carport and breezeway, which encroached beyond the required rear and side yard setbacks. Although the applicable zoning ordinance mandated a seven-foot side yard setback and a ten-foot rear yard setback, Kelly planned to reduce the side yard setback from seven to two feet and the rear yard setback from ten to seven feet. Kelly obtained a building permit but failed to obtain a variance.¹ When Kelly applied for a variance, his application encountered opposition from the Neighborhood Planning Unit and the adjacent neighbor most impacted by the changes. While construction was underway without the needed variance, on October 31, 1997, a City official instructed Kelly's contractor to cease work.

After Kelly sought a variance, the City's Bureau of Planning determined that his request for the side yard variance failed to satisfy any of the four criteria for granting a variance under City Code § 16-26.003. Specifically, the planning staff found that Kelly failed to show exceptional conditions based on size, shape or topography, or any unnecessary hardship or any peculiar conditions. It also decided that the requested variance to reduce the side yard setback was " inconsistent with the intent of the Zoning Ordinance." The staff determined that the dimensions and topography of the property could adequately accommodate a carport with storage without necessitating a variance.

After conducting a hearing on Kelly's request for a variance, the BZA determined that his request should be granted as to the rear yard setback, which was unopposed by the Bureau of Planning, but denied as to the side yard setback which was opposed by the Bureau's staff because of the drastic impact it had on the adjacent neighbor's property.

Within 30 days of that decision, Kelly filed a petition for relief in superior court. But due to an administrative oversight, the Bureau of Planning did not deliver a copy of Kelly's appeal to the BZA's counsel until nearly two months later. When the BZA did not file a response within the time allotted by the Civil Practice Act, Kelly moved for judgment by default. About three weeks later, the BZA filed a response to Kelly's petition and to his motion for default. After a hearing, the trial court entered default judgment in favor of Kelly and reversed the BZA decision. In specifically permitting the side yard variance to only a two-foot setback, the court noted that it "would have granted Mr. Kelly's requested relief based on the merits of his Petition and the record in this case."² BZA appeals. Held: 1. The BZA contends that the trial court erred in concluding that default judgment could be entered because it did not file a timely response to Kelly's appeal. The BZA further claims that the City's ordinance which sets up the procedure for appeals does not require that an answer be filed and that the time constraints imposed by the Civil Practice Act did not apply.

When granting a variance, a board of zoning appeals must consider whether the facts in the particular situation warrant relief from the general zoning ordinance under the standards set out by the delegating authority. Bentley v. Chastain, 242 Ga. 348, 349, n. 4, 249 S.E.2d 38 (1978); see Jackson v. Spalding County, 265 Ga. 792, 794(2), 462 S.E.2d 361 (1995). Here, the BZA conducted a hearing, examined the evidence, and found that part of Kelly's application did not satisfy the criteria for granting a variance. Kelly then filed a petition for review by the superior court. The appellate process required the BZA to provide a certified copy of the transcript, evidence, and the decision for review by the superior court.³ See Southern States Landfill v. City of Atlanta Bd. of Zoning...