City of Rome v. Shadyside Memorial Gardens, Inc.

• Decision Date: 12 April 1956
• Docket Number: No. 1,No. 36108,36108,1
• Citation: 93 Ga.App. 759,92 S.E.2d 734
• Parties: CITY OF ROME, etc. v. SHADYSIDE MEMORIAL GARDENS, Incorporated
• Court: Georgia Court of Appeals

Page 734

92 S.E.2d 734

93 Ga.App. 759

CITY OF ROME, etc. v. SHADYSIDE MEMORIAL GARDENS, Incorporated.

No. 36108.

Court of Appeals of Georgia, Division No. 1.

April 12, 1956.

Syllabus by the Court

The trial court did not err in reversing the decision of the Board of Adjustments of the City of Rome.

Shadyside Memorial Gardens, Inc., (defendant in error here), as owner of a tract of land consisting of approximately two acres within the city limits of Rome, proceeded to lay out a cemetery and, after having obtained a license from the city authorities to do so, took steps to sell burial lots on said tract. The Chief of the Rome Fire Department, W. T. McKinney, who is in charge of the zoning law enforcement within the city, had the license revoked and ruled that the use of the two acre tract as a cemetery was in violation of the zoning ordinance of the City of Rome. To this ruling of the Chief of the Rome Fire Department the defendant in error appealed to the Board of Adjustments of the City of Rome, which board under the charter of the City of Rome was the proper group to hear the appeal. Upon the hearing of the appeal before said Board of Adjustments the defendant in error through Dudley Magruder, Jr., Forrest H. Shropshire, and Penn Nixon, officers of the corporation, Shadyside Memorial Gardens, Inc., testified that the defendant in error had acquired the property in question for the purpose of establishing and developing a cemetery; that the property is located in an R-1 zone according to the zoning ordinance of the City of Rome; but that it had been their opinion that the zoning ordinance and the provisions of R-1 zones did not preclude the operation of a cemetery therein. They called attention to the fact that, upon the adoption of the zoning ordinance of the City of Rome in 1948 three cemeteries existed within the city limits and two of these cemeteries were classified as R-1A, which is a higher and more restricted classification than R-1, and that the third cemetery was classified as R-1. In 1955 the city accepted and included within the city limits a new fourth cemetery which is located and designated as an R-1A zone, this cemetery being privately owned and operated for a profit that the zoning ordinance of the City of Rome nowhere in any of its provisions mentions a cemetery or cemeteries and does not provide either for their inclusion in or exclusion from any zone whatever; that, by necessary implication from the classification of existing cemeteries and from the classification of the fourth cemetery recently established within the city limits, they assumed that cemeteries were allowed in zones R-1A and R-1.

The defendant in error through its officers further testified that, in addition to single family dwellings, a number of uses are permitted by the zoning ordinance in zone R-1A, which are not inconsistent with the general spirit of the ordinance with respect to cemeteries, in that the uses permitted include schools, churches, Sunday schools, and educational buildings, playgrounds and recreational facilities under the supervision of the city parks and parkways, libraries, community or neighborhood centers, public buildings, and buildings used by the people as meeting places. The defendant in error further called attention to the fact that zone R-1 is a restricted classification and that, in addition to all of the uses permitted in R-1A, the uses permitted in R-1 include home occupations and trades, professional offices such as doctors, lawyers, dentists and teachers, and vegetable gardens provided no signs, displays or stands are used in conjunction therewith. The defendant in error contended that these uses, particularly with the flower and vegetable garden provisions, since these would be commercial ventures, were not inconsistent with the operation of a cemetery and evidenced an intention to allow the establishment of a cemetery therein. The appellant, defendant in error, further testified that, in reliance upon its belief that a cemetery did not violate the provisions of the zoning ordinance of the City of Rome, it had proceeded to expend substantial amounts of money in developing the property, securing plats and surveys, and had actually sold approximately fifty burial spaces; that it would have to refund the money for the burial spaces in the event it is not permitted to proceed and the appeal is not granted; and that this would cause the defendant in error to suffer substantial hardship and considerable financial loss. The appellant also testified that the cemetery would be developed in an attractive manner, and would be an asset to the City of Rome; and that arrangements were being made to establish a perpetual trust...