Michiels v. Fulton County, S91A0401
| Decision Date | 21 June 1991 |
| Docket Number | No. S91A0401,S91A0401 |
| Citation | 405 S.E.2d 40,261 Ga. 395 |
| Parties | MICHIELS, et al. v. FULTON COUNTY, et al. |
| Court | Georgia Supreme Court |
Bernard M. Gerber, Clifford Oxford, Ray S. Smith, III, McGee & Oxford, Atlanta, for Michiels, et al.
Paul Webb, Jr., Marcia M. Ernst, Webb & Daniel, Atlanta, for Fulton County, et al.
Appellants own a lot in the Ridge Pointe subdivision in north Fulton County. Their lot is situated at the intersection of Riverside Drive and Pointe Ridge Drive. On April 27, 1988, appellants applied for and were issued a driveway curb cut permit from the Fulton County Department of Public Works for a driveway onto Riverside Drive. The permit was rescinded on May 19, 1989 by way of a letter from the deputy director of that department which stated that the recision was due to the fact that access to Riverside Drive from appellants' lot is prohibited by Fulton County zoning conditions and that there is inadequate sight distance from the driveway, thereby creating a public safety hazard.
Appellants filed a petition for writ of mandamus or, in the alternative, for injunction, requesting the trial court to reinstate the permit that had been rescinded or issue another one and to enjoin appellees from interfering with the construction and use of appellants' driveway. Following a bench trial, the court entered an order denying the petition in its entirety and dismissing the action on its merits. Appellants appeal from that order.
1. Appellants contend that the trial court erred in ruling that access to their property from Riverside Drive is restricted by the applicable zoning ordinance. In 1978, the subdivision in which appellants' lot is located was rezoned from R-1, Residential to R-2A, Residential Conditional. The trial court found that one of the conditions of that rezoning was that there would be no access to the subdivision lots from Riverside Drive.
Appellants, however, contend that if any such condition even exists, it does not prohibit access to the lots from Riverside but only prohibits the subdivision lots and the residences built thereon from facing Riverside. Appellants argue that they are in compliance with such condition because neither their residence nor their lot faces Riverside Drive.
In Ervin Co. v. Brown, 228 Ga. 14, 15, 183 S.E.2d 743 (1971), we held that where a county commission approved an application for rezoning "pursuant with stipulations presented by" counsel for the applicant, the intent of the commission was to conditionally rezone the property with the stipulations constituting the conditions of the rezoning. Here we do not have the question of whether the rezoning of the Ridge Pointe subdivision property was conditional; clearly, it was conditional. Instead, we are faced with the question of what conditions the Fulton County Board of Commissioners attached to the rezoning ordinance and specifically, whether restriction of access from the subdivision lots to Riverside Drive was one of those conditions.
At the December 6, 1978 board of commissioners' meeting, the petition for rezoning was approved "subject to the conditions previously set out" in those same minutes. At one point in those minutes, counsel for petitioner noted that the "lots had been professionally engineered with no lots facing on Riverside Drive." This statement alone might lead to the conclusion that the condition at issue did actually concern the direction in which the lots faced, however, the minutes contain other evidence of the board's intent as to the condition at issue.
In the area of Riverside Drive where the subdivision is located, Riverside is a narrow, winding two-lane road with limited visibility. It is not surprising to find, at two different places in the minutes, reference to the rezoning petitioner's agreement to provide for adequate sight distance at the point where the entrance to the subdivision, which is Pointe Ridge Drive, intersects with Riverside Drive. What is surprising, considering the construction of the condition at issue urged by appellants, is the absence of any similar agreement concerning provision of adequate sight distance at...
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...of vested rights extends to the enactment of zoning regulations, which is an exercise of police powers. See Michiels v. Fulton Cnty., 261 Ga. 395, 405 S.E.2d 40 (1991). Therefore, land use regulations cannot be applied retroactively to " ‘take[ ] away or impair[ ] vested rights acquired und......
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