Board of Zoning Adjustment of Atlanta v. Fulton Federal Sav. & Loan Ass'n
| Decision Date | 27 November 1985 |
| Docket Number | No. 71273,71273 |
| Citation | 338 S.E.2d 730,177 Ga.App. 219 |
| Parties | , 42 UCC Rep.Serv. 1377 BOARD OF ZONING ADJUSTMENT OF ATLANTA v. FULTON FEDERAL SAVINGS & LOAN ASSOCIATION. |
| Court | Georgia Court of Appeals |
Marva Jones Brooks, Thomas A. Bowman and Robert L. Zoeckler, Atlanta, for appellant.
John G. Parker and Caryn R. May, Atlanta, for appellee.
This court granted a discretionary appeal by the City of Atlanta Board of Zoning Adjustment (hereinafter "board") from the judgment of the Fulton Superior Court reversing the decision of the board on an issue involving noncompliance by Fulton Federal Savings and Loan Association (hereinafter "bank"), with a conditional variance from a zoning ordinance.
In November of 1982, the bank applied for a variance from a zoning ordinance to construct a transitional driveway across the Buckhead branch to permit access to Pharr Road on one side and Peachtree Road on the other side. Residents living in that area opposed the variance because of the additional traffic directed onto Pharr Road, which would come from patrons of a large number of bars, nightclubs, and restaurants in that area. The bank's vice president testified: (Emphasis supplied.) The board approved the variance "conditioned upon ... [t]he terms of the letter [from] Bill G. Huff, Jr. [Vice President of the bank] to William F. Kennedy [Zoning Administrator of the City of Atlanta]...." The letter from Mr. Huff to the board assured them that "[g]ates will be placed to assure that the driveway is not utilized during hours Fulton Federal is not open."
Approximately six months after the board's approval of the variance, the bank installed an automatic teller machine at the Buckhead branch, and made a unilateral decision to remove the gates. A zoning inspector testified that the Atlanta Bureau of Buildings determined that the removal of the gates was in violation of the conditional variance and they issued a zoning violation correction notice to comply with the conditions of the variance. The bank appealed to the board.
The board held a hearing, in which the city contended the decision of the board on the variance was based upon the conditions extant at that time, i.e., the bank was closed from 4 p.m. to 9 a.m., and the board and adjacent residents were assured by the bank that their parking lot would not be utilized by patrons of the bars, nightclubs and restaurants, after "banking hours." The bank's position was that it only agreed that the parking lot would not be utilized "during hours Fulton Federal is not open" and "[w]ith the installation of the [automated] teller, Fulton Federal was open 24 hours a day; there were no hours during which Fulton Federal was not open." The board did not accept the bank's argument and found as a fact that the original variance had been conditioned upon a statement by the bank's vice president that The board further conditioned its approval of the variance upon a letter from the bank's vice president that they would install the gates to prevent such parking.
The bank appealed to the superior court, which found that since this was a review of an administrative appeal it was governed by the standard "that the administrative ruling was not made arbitrarily, capriciously or corruptly." But, the court then proceeded to hold that construction of the term "being open" is a "legal determination." The board's decision was "affirmed with directions that the legal interpretation of 'open' includes functioning automated teller machines." The board brings this appeal. Held:
1. The board contends that the superior court applied the incorrect standard of appellate review in its consideration of the appeal. We agree and reverse. The U.S. Supreme Court, in a zoning case, Gorieb v. Fox, 274 U.S. 603, 608, 47 S.Ct. 675, 677, 71 L.Ed. 1228, and quoted with approval in Schofield v. Bishop, 192 Ga. 732, 740, 16 S.E.2d 714, and Morgan v. Cherokee Hills Dev. Co., 226 Ga. 60, 62, 172 S.E.2d 669, held that "[s]tate legislatures and city councils, who deal with the [zoning] situation from a practical standpoint, are better qualified than the courts to determine the necessity, character and degree of regulation which these new and perplexing conditions require; and their conclusions should not be disturbed by the courts unless clearly arbitrary and unreasonable."
Hence, in Bentley v. Chastain, 242 Ga. 348, 352, 249 S.E.2d 38, our own Supreme Court found unconstitutional Code...
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