Dougherty County v. Webb
| Decision Date | 03 December 1986 |
| Docket Number | No. 43768,43768 |
| Citation | 350 S.E.2d 457,256 Ga. 474 |
| Court | Georgia Supreme Court |
| Parties | DOUGHERTY COUNTY, Georgia et al. v. WEBB. |
W. Spencer Lee IV, Lee & Lee, Albany, for Dougherty County, ga. et al.
Robert L. Kraselsky, Vansant, Gilberg, Kraselsky & Corriere, P.C., Albany, for W.C. Webb.
Appellee Webb is the owner of property located in a section of Dougherty County zoned single family residential. Webb filed an application with the Dougherty County Commission (County Commission) for special approval of the use of his property as a church. Such a use is conditionally permitted under §§ 4.36 and 7.05 of the Dougherty County Zoning Ordinance. The County Planning Commission recommended that the application for special approval be granted upon the satisfaction of certain conditions. The County Commission voted unanimously to deny the application.
Webb thereafter petitioned the superior court for a writ of mandamus requiring the County Commission to grant his application for special approval. The trial court found the County Commission acted arbitrarily and capriciously in denying the application, and ordered the Commission to issue Webb special approval. We reverse.
1. Whether denominated as special approval, special exception, special permit or conditional use, this zoning technique "was developed as a means of providing for types of land use which are necessary and desirable, but which are potentially incompatible with uses usually allowed in the particular district." 3 Rathkopf, The Law of Zoning and Planning, § 41.01 (1979). All "involve a special use authorized by the existing zoning ordinance ..., but the ordinance provides that such uses shall be allowed only upon the condition that it be approved by the appropriate governmental body." City of Atlanta v. Wansley Moving Co., 245 Ga. 794, 267 S.E.2d 234 (1980). This zoning device allows the local governing body to anticipate proposed future land uses potentially in conflict with existing permitted uses, and affords the flexibility of permitting the proposed use upon compliance with conditions set out in the ordinance, or in the discretion of the local governing body. See Rathkopf, supra; 3 Anderson, American Law of Zoning 2d, § 19.01 (1977); Wansley, supra, at 795, 267 S.E.2d 234.
This court has held "that in the absence of provision in the zoning ordinance prescribing the means of judicial review, mandamus is a proper remedy for reviewing the denial of conditional and special use permits." Wansley, supra, at 796, 267 S.E.2d 234. The parties in this case concede that mandamus is the appropriate method to review the County Commission's denial of Webb's application for special approval. 1
Article VII of the Dougherty County Zoning Ordinance permits the use of residential property for specified non-residential purposes under certain circumstances. Section 7.05 provides for (Emphasis supplied.) Section 4.36 of the Zoning Ordinance provides: While certain objective conditions must be satisfied before an applicant is granted special approval, see § 7.05 supra, the ultimate decision to issue special approval is left to the discretion of the Dougherty County Commission.
The trial court found, and it is not disputed, that all of the requirements of § 7.05 of the Zoning Ordinance have been satisfied with the exception of special approval of the County Commission. The trial court found that the Commission considered two factors under § 4.36 in denying Webb's application: traffic problems and incompatibility with surrounding land use. 2 The trial court found, however, that there was evidence presented relative to the other factors under § 4.36 which was not considered by the Commission, but which was in conflict with the evidence considered by the Commission. The trial court determined that the Commission's failure to consider this evidence was "arbitrary and capricious, constituting an abuse of discretion." The court's order then required the grant of the application for special approval. We think the trial court erred in its remedy. There was no finding that all the evidence (both that considered by the Commission and that not considered by the Commission) was such that failure to grant the application amounted to a gross abuse of discretion. Rather, it was the failure of the Commission to consider relevant evidence which the trial court found to be "arbitrary and capricious, constituting an abuse of discretion." We agree the Commission's failure to consider evidence was improper but we hold that it...
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