Ervin Co. v. Brown, s. 26600

• Decision Date: 08 September 1971
• Docket Number: 26605,Nos. 26600,s. 26600
• Citation: 183 S.E.2d 743,228 Ga. 14
• Parties: The ERVIN COMPANY v. Charlie BROWN et al. C. A. SANDERS et al. v. The ERVIN COMPANY et al.
• Court: Georgia Supreme Court

Page 743

183 S.E.2d 743

228 Ga. 14

The ERVIN COMPANY v. Charlie BROWN et al.

C. A. SANDERS et al. v. The ERVIN COMPANY et al.

Nos. 26600, 26605.

Supreme Court of Georgia.

Sept. 8, 1971.

Syllabus by the Court

1. Where the official, public minutes of the Fulton County Board of Commissioners shows that the board rezoned certain property 'pursuant with stipulations presented by' the attorney of the then owner and applicant for rezoning, which stipulations were incorporated in said minutes, this amounted to a conditional rezoning.

2. The appellant, present applicant for a building permit for said property, not having complied with the condition, was properly held to be not entitled to the writ of mandamus to compel issuance to it of the permit.

The Ervin Company filed a complaint for the writ of mandamus against the Commissioners and the Director of Inspections and Licenses of Fulton County to compel the issuance to it of a building permit for the construction of a proposed apartment project, to be built according to plans and specifications filed with the county along with its application. The pleadings show that Mr. Carnes, the attorney for the plaintiff's predecessor in title, made certain stipulations in applying for a rezoning of the property from AG-1 (agricultural) use to A (apartment) use, including commitments to construct according to the site plan submitted to the planning staff and to build 380 units (12 or 13 to the acre). The Commission, in approving the application, rezoned the property from AG-1 to A, 'pursuant with stipulations presented by Mr. Carnes.' (Emphasis of the commission) Attached as an exhibit to the complaint is a letter from the defendant director to the plaintiff, denying the application for a permit on the ground that it did not meet in several particulars the conditions under which the property was zoned. C. A. Sanders and others filed a motion to intervene, which the court denied. The matter was ultimately tried before the court without a jury, resulting in a judgment denying the writ of mandamus, from which judgment the plaintiff and the intervenors appeal, the latter enumerating as error the denial of their motion to intervene.

Smith, Cohen, Ringel, Kohler, Martin & Lowe, Hoke Smith, Douglas C. Lauderdale, Jr., Atlanta, for Ervin Co.

Webb, Parker, Young & Ferguson, Paul Webb, Jr., Atlanta, for Brown and others.

Peek, Whaley & Haldi, Glenville Haldi, J. Robert Hardcastle, Atlanta, for Sanders.

FELTON, Justice.

The construction of a zoning ordinance, under the facts, is a question of law for the courts, and in construing it the cardinal rule is to ascertain and give effect to the intention of the lawmaking body. City of Rome v. Shadyside, etc., Gardens, 93 Ga.App. 759, 763, 92 S.E.2d 734. In determining the intent of the defendant commission in rezoning the subject...