Kitchings v. Hennessee

• Decision Date: 20 May 1946
• Docket Number: No. 31155.,31155.
• Citation: 38 S.E.2d 431
• Parties: KITCHINGS et al. v. HENNESSEE.
• Court: Georgia Court of Appeals

38 S.E.2d 431

KITCHINGS et al.

v.HENNESSEE.

No. 31155.

Court of Appeals of Georgia, Division No. 1.

May 20, 1946.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Proceeding by Mrs. C. A. Kitchings and others for a writ of certiorari to review a judgment of the Board of Zoning Appeals of Fulton County ordering the chief building inspector of such county to issue a permit to O. T. Hennessee, Jr., for construction of an apartment house and granting an exception to or variance from zon ing requirements. To review a judgment overruling the certiorari, petitioners bring error.

Reversed.

O. T. Hennessee, Jr., defendant in error, applied to the Chief Building Inspector of Fulton County for a permit to construct an apartment house on a lot owned by him on Peachtree Road, outside the corporate limits of the City of Atlanta. The Chief Building Inspector refused the permit and Hennessee entered an appeal to the Board of Zoning Appeals of Fulton County. The matter came on for hearing before the Board of Zoning Appeals, and on the hearing the Building Inspector was ordered to issue the permit to Hennessee, and an exception, or variance, was granted so as to permit the erection of an apartment house on said property in said district on the ground that a refusal would work an undue hardship on said property. To this judgment of the Board of Zoning Appeals, the plaintiffs in error herein, excepted and carried the case to the Superior Court of Fulton County by writ of certiorari for review. The trial judge, after hearing the matter, overruled the certiorari and to this judgment the plaintiffs in error herein excepted and bring the case to this Court for determination and review.

Heyman, Howell & Heyman, of Atlanta, for plaintiff in error.

Kelley & Hamrick, John I. Kelley, and John L. Westmoreland, all of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

MacINTYRE, Judge.

1. The case of Lewenstein v. Brown, Ga., 37 S.E.2d 332, decided that: "The Board of Zoning Appeals of Fulton County has no authority to grant permission for the erection of an apartment house on property that has been zoned for residence purposes only." The original judgment in the Lewenstein case, together with the questions raised on the motion for a rehearing which was denied February 21, 1946, are controlling adversely to the defendant in error in the instant case.

2. Counsel for the defendant in error in the instant case desires to question and review the decision of the...