City of Atlanta v. McLennan

Citation240 S.E.2d 881,240 Ga. 407
Decision Date05 December 1977
Docket NumberNo. 32681,32681
PartiesCITY OF ATLANTA et al. v. Alex D. McLENNAN, Jr., et al.
CourtSupreme Court of Georgia

Ferrin Y. Mathews, Ralph H. Witt, Atlanta, for appellants.

Emmet J. Bondurant, Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Atlanta, for appellees.

MARSHALL, Justice.

This case is here on appeal following remand to the trial court in the earlier decision of City of Atlanta v. McLennan, 237 Ga. 25, 226 S.E.2d 732 (1976). Following remand, the city rezoned the subject property from single family residential to townhouse and apartment conditional. The allowable density (number of residential units per acre) remains the same under both zoning classifications, with the basic change in zoning being from private residential to commercial residential.

There were two conditions attached to the new zoning classification. A building permit for development of the property would not be issued unless: (1) "An undisturbed buffer strip commensurate with the scale and character of the proposed development . . . be established to adequately minimize the potential impact of the development on the adjacent residential development and the neighborhood character"; (2) "Adequate vehicular ingress-egress facilities . . . be designed and incorporated to meet the access requirements of the development with maximum consideration given to the minimization of traffic congestion on the streets and potentially hazardous conflicting points."

Following a hearing without the intervention of a jury, the trial judge rendered his judgment finding that the appellees' property cannot be reasonably and economically developed or used for townhouse or apartment purposes. The trial judge also found that construction of a shopping center on the property would not have an adverse impact on the public health and welfare, whereas construction of multifamily residences would have an adverse impact on already congested traffic conditions. The trial judge determined that application of this zoning classification to the appellees' property would result in great injury to them, while resulting in little benefit to the public. Under these standards enunciated in Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975), the trial judge held unconstitutional the multifamily residential zoning classification.

The trial judge also found that this "conditional" zoning of the appellees' property was void because of vagueness and also because the city had failed to comply with certain procedural requirements which must be followed under the City zoning ordinance before the adoption of a "conditional" zoning subclassification.

Accordingly, the trial judge declared the property free of all zoning restrictions imposed by the city. The court issued a mandatory injunction which provides that the appellee McLennan will be entitled to the issuance of a building permit for the construction of a shopping center or any other structure on the property upon presentation to the building inspector of an application accompanied by the required fees and plans and specifications, which comply with valid provisions of the building code of the city.

This appeal follows. The appellants enumerate several errors which resolve themselves into three major issues of law, as framed by the appellants.

1. "Whether the refusal of the trial court to grant appellant's demand for jury trial is reversible error requiring a remand of this case for trial to a jury."

The parties waived their right to a jury trial prior to the first appeal, and consented to trial of the entire case by the trial judge. After the case had been remanded for further proceedings following the appeal, the appellants then sought to withdraw their waiver of jury trial.

In arguing that they had a right to a jury trial, the appellants cite various criminal cases which are inapposite here. They also cite dicta from other civil cases.

The appellants argue in addition that this is a mandamus action. (The original complaint and subsequent motions filed by the appellees sought the issuance of a writ of mandamus to compel the building inspector to issue them a building permit.) Proceeding from this premise, the appellants argue that there is an absolute right to a jury trial in a mandamus action. We disagree.

"If an issue of fact is involved in a mandamus case, such issue shall be tried by a jury." Bryant v. Bd. of Education of Colquitt County, 156 Ga. 688, 119 S.E. 601 (1923); Holt v. Clairmont Development Co., 222 Ga. 598, 151 S.E.2d 151 (1966); Code § 64-108. However, the parties to a mandamus action in which there are issues of fact may waive their right to a jury trial either tacitly or expressly. See Chappell v. Small, 194 Ga. 143, 20 S.E.2d 916 (1942); Talmadge v. Cordell, 170 Ga. 13, 152 S.E. 91 (1929); Code Ann. § 2-3308 (Art. VI, Sec. IV, Par. 8, Georgia Constitution of 1976). A waiver of jury trial at the first trial of the civil case applies to retrials of the same case. See Pelham Mfg. Co. v. Powell, 8 Ga.App. 38, 68 S.E. 519...

To continue reading

Request your trial
12 cases
  • City of McDonough v. Tusk Partners, S97A1175
    • United States
    • Supreme Court of Georgia
    • November 3, 1997
    ...its burden of proving the zoning is unsubstantially related to the public health, safety and welfare. City of Atlanta v. McLennan, 240 Ga. 407, 409(2), 240 S.E.2d 881 (1977). While the evidence adduced at trial in this case clearly would have authorized the court to reach the opposite concl......
  • DeKalb County v. Albritton Properties
    • United States
    • Supreme Court of Georgia
    • June 25, 1986
    ...the trial court's findings of fact will not be set aside unless they are clearly erroneous. OCGA § 9-11-52 (a); City of Atlanta v. McLennan, 240 Ga. 407(2), 240 S.E.2d 881 (1977); Board of Commissioners v. Skelton, 248 Ga. 855, 857, 286 S.E.2d 729 (1982). Nor did it affect the decision in G......
  • BARROW COUNTY AIRPORT AUTH. v. ROMANAIR
    • United States
    • United States Court of Appeals (Georgia)
    • April 15, 2003
    ..."A waiver of jury trial at the first trial of the civil case applies to retrials of the same case. [Cits.]" City of Atlanta v. McLennan, 240 Ga. 407, 409(1), 240 S.E.2d 881 (1977). Moreover, we do not agree with the Authority that the issue must be decided by a jury. It is true that in Park......
  • DeKalb County v. Dobson, S96A1888
    • United States
    • Supreme Court of Georgia
    • February 17, 1997
    ...489 (1987); Board of Commissioners of Hall County v. Skelton, 248 Ga. 855, 857(1), 286 S.E.2d 729 (1982); City of Atlanta v. McLennan, 240 Ga. 407, 409 (2), 240 S.E.2d 881 (1977). Accordingly, the findings of the trial court in this case cannot be disturbed on appeal unless they are clearly......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT