Jenkins v. Board of Zoning Appeals of City of Columbus

• Decision Date: 08 September 1970
• Docket Number: No. 45392,No. 2,45392,2
• Citation: 122 Ga.App. 412,177 S.E.2d 204
• Court: Georgia Court of Appeals
• Parties: Mrs. F. L. JENKINS v. BOARD OF ZONING APPEALS OF the CITY OF COLUMBUS et al

Page 204

177 S.E.2d 204

122 Ga.App. 412

Mrs. F. L. JENKINS v. BOARD OF ZONING APPEALS OF the CITY OF COLUMBUS et al.

No. 45392.

Court of Appeals of Georgia, Division No. 2.

Sept. 8, 1970.

Young, Thompson, Redmond & Young, Dan H. Byars, W. H. Young, Jr., Columbus, for appellant.

Lennie F. Davis, Hatcher, Stubbs, Land, Hollis & Rothschild, Richard Y. Bradley, Columbus, for appellees.

Syllabus Opinion by the Court

PANNELL, Judge.

The question in this case is whether the judge of the superior court erred in dismissing an appeal to the superior court from an order of the Board of Zoning Appeals of the City of Columbus, Georgia. The record in this case shows an appeal to the Superior Court of Muscogee County 'from an order of the Board of Zoning Appeals of the City of Columbus, Georgia, dated May 7, 1969,' which recited it was an appeal 'pursuant to the provisions of Sections 68-8, et seq., of the Georgia Code Annotated, as amended, and Section 22-3, et seq., of the Code of the City of Columbus, Georgia, as amended.' The appeal above referred to was filed on January 4, 1969, and in all three grounds of appeal referred to the administrative agency as the 'Board of Zoning Appeals.' The answer to the appeal and the proceedings filed in superior court show the proceedings were had before 'the Board of Zoning Appeals of the City of Columbus, Georgia.' The Act of 1946 (Ga.L.1946, p. 191 et seq.; Code Ann. Ch. 69-8), setting up a system of zoning, provided for a reviewing board denominated 'board of adjustment' from whose rulings an appeal to the superior court might be had by merely filing an appeal. Section 27 of the Act of 1946 (Code Ann. § 69-827). The Act of 1957, setting up a cumulative system of zoning, provides for a reviewing Board denominated 'board of zoning appeals' and provides for an appeal from its rulings under the same procedure as from the court of ordinary (by amendment enacted in 1964, Ga.L.1964, p. 259; Code Ann. § 69-1211.1), which appeal from the court of ordinary requires payment of costs and the giving of a bond for future costs as a prerequisite to the validity of an appeal to the superior court. See Code § 6-204. The board of zoning appeals made a motion to dismiss the appeal to the superior court on the following grounds: '1. Appellant has failed to pay any of the costs involved in said appeal and has failed to post the bond required under Georgia Code Section 6-204, which section is applicable to said appeal. 2. The notice of appeal fails to show that appellant is a property owner or has any pecuniary interest which would be adversely affected in that her property will suffer some special damages as a result of the decision of the Board complained of, which is not common to other property owners similarly situated.' An order of the trial judge recites: 'Whereas, appellees (Board of Zoning Appeals of the City of Columbus, Georgia) moved to dismiss said appeal on several grounds, one of which is that there is no provision for an appeal from a decision of said board under the presently existing ordinances of the City of Columbus, Georgia.

'Now, therefore, after argument and submission of briefs by counsel for both parties, it is considered, ordered and adjudged that the motion of appellees be and the same is granted on the foregoing ground and that the foregoing appeal is hereby dismissed.' Various ordinances and paragraphs from ordinances of the City of Columbus are quoted in the briefs of counsel, but they nowhere appear as a part of the record in this case. Held:

1. This court cannot take judicial notice of a municipal ordinance. Leger v. Ken Edwards Enterprises, 223 Ga. 536, 539(2), 156 S.E.2d 651.

2. This court is a court for the correction of errors and its decision must be made on the record sent to this court by the clerk of the court below and not upon the briefs of counsel. See Greene v. McIntyre, 119 Ga.App. 296, 167 S.E.2d 203; Palmer v. Stevens, 115 Ga.App. 398(8), 154 S.E.2d 803; Meltzer v. C. Buck LeCraw & Co., 225 Ga. 91(1), 166 S.E.2d 88.

3. This appeal appears to be from a board of zoning appeals provided for by the Act of 1957 rather than from a board of adjustment provided for in the Act of 1946. While the appeal also states it is made pursuant to the 'Georgia Code Annotated § 68-8,' theGeorgia Code Annotated is a publication of a law book publisher and neither grants or takes away any legal rights. See Bowen v. State, 215 Ga. 471, 111 S.E.2d 44; Morgan v. Todd, 214 Ga. 497, 499, 106 S.E.2d 37; Underwood v. Atlanta & Westpoint R.R. Co., 217 Ga. 226, 227, 122 S.E.2d 100. Further, this chapter of the Code Annotated deals with motor vehicles. The Act of 1946, which authorizes an appeal from a board of adjustment is annotated as ...