Westbrook v. Board of Adjustment, 35555

Decision Date03 January 1980
Docket NumberNo. 35555,35555
Citation262 S.E.2d 785,245 Ga. 15
CourtGeorgia Supreme Court

Carlton H. Vines, Summerville, for appellant.

Robert Edward Surles, Summerville, for appellees.

MARSHALL, Justice.

The appellant's application to rezone his lot in the Town of Trion from residential use to commercial use, for proposed use as a self-service or convenience store, was denied by the Board of Adjustment of the Town of Trion, as recommended by the town's planning commission. The denial was affirmed by the town's Board of Zoning Appeals. The appellant filed an equitable complaint to require the town to rezone the property, alleging that the property is not suitable for residential use for which it is zoned, and that the denial of the application to rezone is inflicting serious loss to him and is confiscatory, void and constitutes a taking of property without just compensation in violation of the state and federal Constitutions. After a hearing, the trial judge denied relief to the plaintiff, and he appeals. We affirm.

The appellant's lot is located in the northeast corner of the intersection of U. S. Highway 27 with Third Street, fronting 132.6 feet on the east side of the highway, with 68.3 feet on the north side of Third Street. There is no conflict in the evidence that all of that area on the east side of the highway where this lot is located is an old residential neighborhood; that there has been no change in the zoning thereof as residential, including property to the north, east and south of appellant's lot, since adoption of Trion's zoning ordinance in 1962; and that, although the lot is vacant, a dwelling had been located thereon for many years, having burned some years before the appellant bought the property in 1970 with knowledge that it was zoned residential. Across the highway is the property of Riegel Textile Corp., used for employee parking along that portion fronting the highway, behind which is a railroad track and behind that a warehouse. Some 35 yards from the appellant's lot, northerly and across the highway, is the main entrance to the property of Riegel, which employs some 2,000 persons.

The appellant testified to a beauty parlor being operated three or four blocks north of his lot on the same side of the highway, but there was evidence that a lady had been operating this business out of a small part of her home when the zoning ordinance was adopted, and that she had been permitted to continue so doing as a nonconforming use. Adjoining the appellant's lot to the north, and across the highway from Riegel's main entrance, is a lot on which the house formerly located had burned, and which is now vacant and is used by Riegel's employees to park their cars, but is not a commercial parking lot. Except for the vacant lots of the appellant and the adjoining lot, all of the property in this area on the east side of the highway is occupied by houses.

All of the testimony emphasizes the existing heavy vehicular traffic on the highway and, in particular, the congestion that exists for three one-hour periods during each day when the work shift changes at the Riegel plant. This traffic volume is the basis of the contentions of both parties, the appellant urging that it renders the property unsuitable for residential use and the appellees urging that the problem would be worsened by commercial use. Witnesses for both the appellant and the appellees agree that the...

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13 cases
  • Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga.
    • United States
    • U.S. District Court — Northern District of Georgia
    • February 10, 2012
    ...related to governing public interests. Dekalb County v. Flynn, 243 Ga. 679, 256 S.E.2d 362, 363–64 (1979); Westbrook v. Board of Adjustment, 245 Ga. 15, 262 S.E.2d 785, 787 (1980). Once Plaintiff has carried its initial burden, the burden then shifts to the City to justify its decision. Id.......
  • Diversified Holdings, LLP v. City of Suwanee, S17A1140
    • United States
    • Georgia Supreme Court
    • November 2, 2017
    ...(1949) (injury to neighboring property); Pope, 242 Ga. at, 336, 249 S.E.2d 16 (1978) (environmental impact); Westbrook v. Bd. of Adjustment, 245 Ga. 15, 262 S.E.2d 785 (1980) (traffic impact and pedestrian hazards); Parking Ass'n, 264 Ga. at 765-66, 450 S.E.2d 200 (aesthetics); Tap Assocs.,......
  • Cottonwood Farms v. Board of County Com'rs of County of Jefferson, 86SC218
    • United States
    • Colorado Supreme Court
    • October 31, 1988
    ...change is generally not a factor to be considered in the plaintiff's favor in analyzing a taking claim. E.g., Westbrook v. Board of Adjustment, 245 Ga. 15, 262 S.E.2d 785 (1980); Mintz v. Village of Pepper Pike, 57 Ohio App.2d 185, 386 N.E.2d 849 (1978) (noting that the plaintiffs' claim of......
  • Henry County v. Tim Jones Properties
    • United States
    • Georgia Supreme Court
    • November 30, 2000
    ...248 Ga. 186, 190, 281 S.E.2d 525 (1981); Koppar Corp. v. Griswell, 246 Ga. 539, 540, 272 S.E.2d 272 (1980); Westbrook v. Bd. of Adjustment, 245 Ga. 15, 16-17, 262 S.E.2d 785 (1980). 7. Dobson, supra; Chamblee Dunwoody Hotel Partnership, 248 Ga. at 189, 281 S.E.2d 525. 8. Chamblee Dunwoody H......
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