Lewenstein v. Brown

• Decision Date: 15 January 1946
• Docket Number: 15349,15350.
• Parties: LEWENSTEIN et al. v. BROWN et al. BROWN et al. v. WALKER et al.
• Court: Georgia Supreme Court

37 S.E.2d 332

200 Ga. 433

LEWENSTEIN et al. v. BROWN et al.

BROWN et al. v. WALKER et al.

Nos. 15349, 15350.

Supreme Court of Georgia

January 15, 1946

Rehearing Denied Feb. 21, 1946.

Syllabus by the Court.

1. A restriction in a deed that 'the above property is sold for residence purposes only' does not prohibit the erection of an apartment house to be used for residence purposes only.

2. 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.

Miss Catharine Brown and seventeen others filed suit against Dun Lewenstein and Mrs. R. S. Lewenstein. The petition alleged that all the plaintiffs are property owners of the Peachtree Hills Place subdivision; that this subdivision was restricted to residences only by a provision contained in the deed to the property, and also by a general scheme or plan of development of the subdivision; that the zoning regulations of Fulton County restricted this property to residences only that the defendants, in violation of these restrictions, were attempting to erect an apartment house on property located in the subdivision. The prayer was for an injunction. The defendants answered, denying the material allegations of the petition, and contending that they had a permit from the proper authorities for the construction of the apartment house, and that the building of the apartment house was not in violation of any restriction either in the deeds or zoning regulations.

Upon the hearing the evidence disclosed that there are now no apartment houses located in this subdivision; that the defendants were preparing to erect an apartment house to be used for residence purposes only on vacant lots owned by them in Peachtree Hills Place subdivision. The evidence was in sharp conflict as to the effect the erection of the proposed apartment house would have on other property located in the subdivision as single-unitresidences. The evidence further disclosed that on November 17, 1941, M Solloway made application to the building inspector of Fulton County for a building permit to erect an apartment house on the property now owned by the defendants. The building inspector on the same date denied the permit on the ground that the property had been zoned for residence purposes only. This decision of the building inspector was on the same date made the subject of an appeal to the Board of Zoning Appeals of Fulton County. On December 11, 1941, the appeal was 'approved,' with certain 'restrictions' as to the manner in which the apartment house should be erected. On January 27, 1942, M. Solloway 'surrendered the permit had the same canceled out.' On July 18, 1945, the building inspector of Fulton County issued a permit to the defendant Dun Lewenstein for the erection of an apartment house on the property now in question.

A zoning ordinance for unincorporated areas of Fulton County, adopted by the board of commissioners of roads and revenues of Fulton County on June 16, 1939, was introduced in evidence. This ordinance, so far as here material, reads as follows:

'Section 1. All portions of Fulton County lying outside the limits of incorporated areas as now established by law are hereby zoned or districted into zones or districts as follows: Industrial districts, with territory defined and uses limited as set forth in section 2 of this ordinance. Commercial districts, with territory defined and uses limited as set forth in section 3 of this ordinance. Apartment districts, with territory defined and uses limited as set forth in section 4 of this ordinance. Residential districts, with territory defined and uses limited as set forth in section 5 of this ordinance.

'Section 2. Industrial districts and their uses. Industrial districts shall include: (a) All property in said county outside of incorporated areas now occupied or used for purposes of manufacturing industry, or for the storage in bulk of materials or appurtenances, for airports or other transportation facilities. Such industrial districts shall also include all properties now owned in the name of any manufacturer, warehouseman, or persons engaged in the business of storage or transportation, and all properties now owned in the name of any firm or corporation engaged in either of said four lines of industry or in the name of any officer thereof and which has been held prior to the adoption of this ordinance for the intended expansion of the activities or use of the business formerly conducted by such person, firm or corporation. (b) Such industrial districts shall also include any properties outside the limits of incorporated areas whose occupancy or use is comparable in character with any of the uses described in subsection (a) above, provided the inclusion of such property in an industrial district is found by the board of zoning appeals after a hearing to be more conducive to the purposes declared in the preamble of this act when used for industrial purposes than for the purpose to which it is otherwise limited by the terms of this act.

'Section 3. Commercial districts and their uses. Commercial districts shall include: (a) All properties in said county outside the limits of incorporated areas now occupied or used for commercial purposes, including stores, offices, gasoline filling stations and other buildings, or properties devoted to the sale of goods or services. Where any parcel of land is occupied or used in part for commercial purposes defined in this subsection, only the part so occupied or used at the time of passage of this resolution shall be construed to be included within a commercial district. (b) Any property lying adjacent to a commercial district as herein defined, but not more than fifty feet therefrom, or any property therefrom, or any property lying directly across the street or highway from a commercial district may be included within a commercial district by permission of the board of zoning appeals hereinafter created whenever, in the opinion of such board, after a hearing, the intended use of such other property proposed to be erected or altered thereon will be in keeping with the character of a commercial district as herein defined and will when so used better serve the purposes of this act as defined in the preamble hereto.

'Section 4. Apartment districts and their uses. Apartment districts shall include: All those areas heretofore zoned for apartment purposes by the board of commissioners of roads and revenues of Fulton County, which apartment districts are to be used only for apartments, apartments being defined to be dwellings for three or more families, living independently of each other and doing their cooking upon the premises.

'Section 5. Residential districts and their uses. Residential districts shall include: All areas formerly zoned by the board of commissioners of roads and revenues of Fulton County for residential purposes and also all properties now occupied or used for residential purposes, and including churches schools, agriculture, nurseries, clubs, hunting preserves, parks and all buildings and uses of buildings and land incidental thereto, but exclusive of buildings, structures and uses of buildings and lands included in the districts set forth at section 2, 3, and 4 above. All vacant or unused land or buildings not included within the...