Scott v. Minnix

• Decision Date: 02 April 1957
• Docket Number: No. 1,No. 36590,36590,1
• Citation: 95 Ga.App. 589,98 S.E.2d 196
• Parties: J. H. SCOTT et al. v. A. R. MINNIX
• Court: Georgia Court of Appeals

Page 196

98 S.E.2d 196

95 Ga.App. 589

J. H. SCOTT et al. v. A. R. MINNIX.

No. 36590.

Court of Appeals of Georgia, Division No. 1.

April 2, 1957.

Rehearing Denied April 19, 1957.

Syllabus by the Court.

Since the Clayton County Board of Zoning Appeals was without jurisdiction to proceed as it did, the Superior Court of Clayton County on an appeal to it on the merits of such board proceedings, was likewise without jurisdiction to consider the appeal on the merits of the board's proceedings.

A. R. Minnix applied to the Clayton County Board of Zoning Appeals for a special use permit under the Clayton County zoning ordinance for the use of certain property located in Clayton County. The plaintiffs in error filed written objections to such application. On June 5, 1956, a hearing was had by the board of zoning appeals on the matter. At the close of the hearing, the board of zoning appeals found in favor of the application and granted a special use permit. The plaintiffs in error by petition appealed to the Superior Court of Clayton County. A. R. Minnix filed general and special demurrers to this petition. The court sustained these demurrers giving the plaintiffs in error ten days within which to amend. After amendment, A. R. Minnix renewed his general demurrer which was sustained and the appeal dismissed. To this judgment the plaintiffs in error except.

Albert B. Wallace, Jonesboro, for plaintiffs in error.

Glenn Frick, Hamilton Lokey, Lokey & Bowden, Atlanta, Harold R. Banke, Edwin S. Kemp, Jonesboro, for defendant in error.

FELTON, Chief Judge.

Where it appears in the record, this court may on its own motion inquire into the question of the jurisdiction of this court or the jurisdiction of the court below as to subject matter. Brannon v. Price, 29 Ga.App. 333, 334(6), 115 S.E. 151; Smith v. Ferrario, 105 Ga. 51, 53, 31 S.E. 38; O'Brien v. Harris, 105 Ga. 732, 736, 31 S.E. 745.

The Clayton County Board of Zoning Appeals did not have the power and jurisdiction to proceed as it did and, therefore, the Superior Court of Clayton County did not have jurisdiction in an appeal from such void proceedings as to the merits of such proceedings. The act creating the Clayton County Board of Zoning Appeals sets its powers and jurisdiction. Ga.Laws 1949, Sec. 10, pp. 223, 228. Section 10 of the act provides: 'Appeals to the Board of Zoning Appeals may be taken by any officer, department, or board of the county and also by any person or persons having a substantial interest in any decision of an administrative officer or agency seeking to function under authority of or enforce any ordinances pursuant to this Act.' [Emphasis supplied.] The act gives the board of zoning appeals the following powers: '1. To hear and decide appeals where it is alleged by appellant that there is an error in any order, requirement, decision or determination made by an administrative official or agency in the enforcement of this Act or of any regulation adopted pursuant thereto. 2. To authorize upon appeal in specific cases such variance from the terms of such regulations as will not be contrary to the public interest, where, owing to special conditions full demonstration on the basis of the facts presented, literal enforcement of the provisions of the regulation will result in great practical difficulties or unnecessary hardships, and so that the spirit of the regulation shall be observed and substantial justice done. 3. To permit in appropriate cases, in harmony with the general purposes and intent of such regulations, a building or premises to be erected or used for public utility or public services purposes in any location which is reasonably necessary for public convenience and welfare. In exercising the above mentioned powers such Board, may, in conformity with the provisions of this Act, reverse or affirm, wholly or partly or may modify the order,...