Opinion
37177.
DECIDED JULY 8, 1958.
Zoning. Thomas Superior Court. Before Judge Gray from Tifton circuit. March 17, 1958.
A. J. Whitehurst, for plaintiffs in error.
Alexander, Vann Lilly, Sol Altman, contra.
The court erred in sustaining the demurrers to the appeal of a decision of the Board of Adjustment of the City of Thomasville to the superior court, complaining of a variance allowed by said board in granting a variance for a funeral home in an R-2 zone.
DECIDED JULY 8, 1958.
Lynn B. Kirkland applied for a license to operate a funeral-home business in an existing frame building at 112 West Hansell Street, which was within an R-2 zone. The application was denied by the clerk of the City of Thomasville. Kirkland appealed the city clerk's action to the board of adjustment which, on January 30, 1958, took the following action: "It was moved and carried that a variance be granted for a license for Funeral Home at 112 W. Hansell Street to be owned and operated ONLY by Mr. Lynn B. Kirkland, Mr. Irvin Croy, and Mr. John Hughes. Further that this business be restricted to a single sign lighted with a non-blinking white light and the sign not exceed nine (9) square feet in area. The sign is to be placed near the present building." Margaret N. Mobley and John W. Mobley, husband and wife, appealed the above decision of the board of adjustment to the Superior Court of Thomas County. The appeal alleged the facts stated above, alleged that appellants had a substantial interest in the decision appealed and alleged the following grounds of appeal: "(A). That by virtue of the Board of Adjustment previously granting a variance to Life Insurance Company of Georgia on Gordon Avenue and presently granting a variance for the funeral business at 112 W. Hansell Street all in the same city block leaves the remaining land in the same block available only for commercial uses and thereby rezones the block bounded by Siexas, Hansell and Board Streets and Gordon Avenue and rezoning is solely within the province of the governing authority of the City of Thomasville after reference to the Planning Board, and the action of the Board of Adjustment on changing the entire character of said block is illegal. (B). Such action of the Board was illegal and contrary to and beyond the power of the Board of Adjustment in that Lynn B. Kirkland applied for a license, was denied a license to operate a funeral home business at 112 W. Hansell Street in an R-2 zone, and the award of the Board was for a license to a partnership business to be owned and operated ONLY by Lynn B. Kirkland, Irvin Croy and John Hughes. (C). Such said action of the Board of Adjustment is illegal and contrary to Section 14 of the said Zoning Ordinance of the City of Thomasville as set out in Exhibit `A' annexed hereto. Before making any specific change, the Board of Adjustment must determine that the proposed variance will not constitute any changes in the districts shown on the zoning maps which determination, if made, was made contrary to all facts and evidence presented and without fact and evidence to support. (D). Such said action of the Board of Adjustment is illegal and contrary to Section 14 of the said Zoning Ordinance of the City of Thomasville as set out in Exhibit `A' annexed hereto. Before making any specific change the Board of Adjustment must determine that the proposed variance will not materially diminish or impair established property values within the surrounding area which determination was not made or considered by the Board of Adjustment before granting variance in the matter sub judice. (E). Such said action of the Board of Adjustment is illegal and contrary to Section 14 of the said Zoning Ordinance of the City of Thomasville as set out in Exhibit `A' annexed hereto. Before making any specific change the Board of Adjustment must determine that the proposed variance will not materially increase the congestion in public streets, which determination was not made or considered by the Board of Adjustment in that the appeal of Lynn B. Kirkland specifically recognized a traffic problem as did objecting property-owners in the neighborhood and no consideration in making the variance was given to the traffic problem and the matter of the traffic problem was not considered by the Board in its award, nor as a basis for its award of a variance. (F). The award of the Board of Adjustment was beyond their power as specified in Code section 69-824 in that nowhere were conditions demonstrated on the basis of facts presented that literal enforcement of the provisions of the regulations would result in a great practical difficulty, or unnecessary hardship to Lynn B. Kirkland, the appellant, in that there was absolutely no evidence that it was impossible for him to operate a funeral home within a commercial district or the unavailability of a location zoned for such business. (G). Because from the evidence shown the owners of said property Patterson Jernigan after having purchased a large tract of land including 112 W. Hansell Street had speculated upon the same and had found it difficult to dispose of 112 W. Hansell Street as it was zoned, as the time of their purchase and before subdividing their purchase, and thereby they were attempting to cause a variance in the planning of said town for the purpose of changing the same to commercial property at the expense of surrounding property owners to their own personal gain. (H). Because at the hearing on February 3, 1958, the Board of Adjustment went into executive session prior to granting any variance which terminated the meeting and made the variance, as granted, illegal and ineffectual as being contrary to the specific requirement of Code section 69-820 requiring that all meetings of the Board of Adjustment shall be open to the public; and, such meeting, not being opened to the public, and action taken therein, was void and illegal. (I). The Board of Adjustment improperly heard evidence from Mr. C. W. McKinnon, a member of the Planning and Zoning Board, and, while he is Chairman thereof, he is without authority to speak for the entire Planning and Zoning Board until the Board has met and considered any matter; and such testimony was irrelevant for the appeal and prejudicial against your petitioners. The Board was influenced by his remarks that the Planning and Zoning Board felt that the Board of Adjustment could better control type of usage in the block in question as it was expected to incline toward business ventures, and such statement is within itself illegal in that any change of plan in the zoning of said city should be made by the governing authority after consideration and recommendation by the Planning and Zoning Board as provided in Section 69-812 of the Code of Georgia. (J). The said Board of Adjustment was without jurisdiction to render said variance on January 30, 1958, for the reason that no notice was given to the said City's Clerk, Julius F. Ariail, by said Board of Adjustment that the appeal of said Lynn B. Kirkland from the decision of said Julius F. Ariail, as Clerk of the City of Thomasville, denying said Lynn B. Kirkland a license to operate a funeral home business in the existing frame building at 112 W. Hansell Street in Thomasville, Georgia, in an R-2 zone, would be held by said board on January 30, 1958, and neither did said Clerk receive any official notice from any other source, and was not present and was not represented before said board at its said meeting on January 30, 1958, when the said appeal of Lynn B. Kirkland was heard and the said decision or judgment on same was rendered by said board."
Section 14 of the city zoning ordinance, attached to the appeal, is in part as follows: "In considering all proposed variations to this ordinance the Board shall, before making any finding in a specific case, first determine that the proposed variation will not constitute any change in the Districts shown on the Zoning Map and will not impair an adequate supply of light and air to adjacent property, or materially increase the congestion in public streets, or increase the public danger of fire and safety, or materially diminish or impair established property values within the surrounding area, or in any other respect impair the public health, safety, morals and general welfare of the City of Thomasville."
Written notice of the appeal was given to the secretary of the board of adjustment. On March 15, 1958, Lynn B. Kirkland, Irvin Croy and John B. Hughes filed general and special demurrers to the appeal which were adopted by the City of Thomasville. The demurrers are as follows: "1. The said Lynn B. Kirkland, Irvin Croy and John Hughes are persons who have a substantial interest in the action of the Board of Adjustment of the City of Thomasville, which is the subject of the appeal of John W. Mobley and Margaret N. Mobley as aforesaid and said appeal fails to make the said Kirkland, Croy and Hughes parties to the same and appellants fail to give notice to such persons of the appeal. Therefore, said appeal is void and the action of said Board of Adjustment should stand and said appeal should be dismissed as failing to join proper and indispensable parties therein. 2. The said appeal of John W. Mobley and Margaret N. Mobley fails to state wherein the action of the Board of Adjustment was incorrect as a matter of law. 3. The petition of the appellants shows upon the face thereof that the appeal seeks to charge the Board of Adjustment of errors in findings of facts, whereas all such findings of fact by such Board of Adjustment are under the zoning laws of the State of Georgia to be considered final and conclusive on such appeal. 4. The question of permitting the use of the property described in said appeal was for determination of the Board of Adjustment and if the evidence heard by said Board led them to grant the variance complained of, their decision as to such evidence is final and conclusive. This court is without jurisdiction to determine from the allegations of the appellants' petition that the Board of Adjustment abused its discretion, and said appeal should be dismissed. 5. In granting the variance from the zoning ordinance of the City of Thomasville, the Board of Adjustment must be presumed to have determined that such action would not be contrary to the public interest and owing to special conditions fully demonstrated on the basis of facts presented literal enforcement of the provisions of the regulations would result in great practical difficulties or unnecessary hardship, and if the spirit of the regulation should be observed, substantial justice would be done. Appellants' petition having failed to set forth grounds which would authorize this court to find that the Board of Adjustment did not so act, said appeal should be dismissed. 6. So much of Paragraph Six of appellants' petition as alleges that the value of petitioners property would be materially diminished and impaired by commercialization of 112 West Hansell Street, upon the ground that [said allegations of fact are demurred to upon the ground that] said allegations of fact are immaterial to this appeal, the findings of the Board of Adjustment as to such facts alleged are not reviewable under the laws of Georgia. 7. Kirkland, Croy and Hughes further demur to Paragraph Seven of appellants' petition as follows: Subparagraph (2) of said paragraph fails to allege any grounds upon which the action of the Board of Adjustment should be reversed; said paragraph is vague and indefinite; the same is a mere conclusion in that it alleges that the remaining land in the block described is available only for commercial uses and thereby rezones the block, there being nothing in the record to show that said block has been rezoned. Said subparagraph is further demurred to upon the ground that the allegations contained therein regarding the action of the Board of Adjustment in granting a variance to Life Insurance Company of Georgia on Gordon Avenue was never appealed from and the granting of said variance in this appeal is immaterial and irrelevant. Subparagraph (b) of Paragraph Seven is demurred to upon the ground that the same is immaterial to this appeal. Subparagraph (c) is demurred to upon the ground that the same is a conclusion of the appellant and nothing therein alleges facts sufficient to show that the Board of Adjustment in granting the variance which is the subject of the appeal, amounted to a change in the district, as shown on the zoning map of the City of Thomasville. Moreover, such findings of facts have been made by the Board of Adjustment are final and conclusive on this appeal. This court is authorized to determine only whether the decision of the Board of Adjustment is correct as a matter of law and no facts are alleged in said subparagraph to show wherein said action of the Board of Adjustment was not correct as a matter of law. Subparagraphs (d), (e), (f) and (g) of Paragraph Seven are demurred to upon the ground that each of said subparagraphs state conclusions of fact on the part of the appellants. Findings of fact by the Board of Adjustment are final and conclusive on this appeal and are not subject to review by this court. Subparagraph (h) is demurred to upon the ground that the same states a conclusion which is contrary to the record in the appeal in that the minutes of the Board of Adjustment do specifically show that the meeting was open to the public and that the parties at interest appeared and presented evidence and arguments to the Board at said time. Subparagraph (i) is demurred to upon the ground that the same is a conclusion of the appellants in that there is nothing in the record of the action of the Board of Adjustment to indicate that any change was made in the plan of zoning of the City of Thomasville or that the remarks of C. W. McKinnon were considered by the Board in granting the variance which is the subject of this appeal."
The court sustained the demurrers on all grounds, and the appellants excepted.
1. The court erred in sustaining the first demurrer for the reason that the sole statutory requirement that notice of the appeal be given to the secretary of the board of adjustment was met. Ga. L. 1946, pp. 191, 198 (Code, Ann., § 69-828).
2. The court erred in sustaining the second demurrer for the reason that the appeal does state particulars which are alleged to be incorrect as a matter of law. The law does not require the appeal to embody the proceedings before the board of adjustment and such proceedings are not a part of the appeal and subject to demurrer. The record is sent to the superior court by the board of adjustment for consideration by the court. Ledbetter v. Roberts, 95 Ga. App. 652 ( 98 S.E.2d 654).
3. The court erred in sustaining the third demurrer for the reason that the appeal does not show on its face that the appellants assign error on findings from conflicting evidence.
4. The court erred in sustaining the fourth demurrer for the reason stated in the foregoing division.
5. The court erred in sustaining the fifth demurrer for the reason that the object of an appeal in such cases is to test the legality of the findings of the board of adjustment which can only be determined by testing whether the evidence before the board of adjustment authorized its findings. If, as urged by the demurrer, there is a presumption that the board acted legally, an appeal would be useless.
6. The court erred in sustaining the sixth demurrer for the reason the same does no more than show the interest of appellants and their right to appeal.
7. The court erred in sustaining the demurrer to subparagraph (a) of paragraph 7 of the appeal for the reason that the allegations do not show as a matter of law that the ultimate fact alleged is not true.
8. The court erred in sustaining the demurrer to subparagraph (b) of the appeal for the reason that the subparagraph states a good cause in that the board of adjustment had no authority to change the name of the applicants and grant a right to parties not a party to the case appealed. While the cases are not directly in point, see Brown v. Pickett, 3 Ga. App. 554 ( 60 S.E. 293); Kline v. Swift Specific Co., 118 Ga. 514 ( 45 S.E. 314).
9. The court erred in sustaining the demurrer to subparagraph (c) of the appeal for the reason that the appeal does not show on its face that the allegations in this subparagraph are not true. The record sent up by the board of adjustment must be examined by the superior court to ascertain whether this subparagraph is true. As stated before, the record is not a part of the appeal, and the appellants are not required to embody it in the appeal.
10. The same conclusion is required as to the demurrer to subparagraphs (d), (e), (f), (g), (h) and (i) as is stated in division 9, as to the particular grounds of demurrer. Subparagraph (g) might be subject to demurrer for another reason.
11. As to subsection J, if the record does not show that the City of Thomasville received notice through its clerk of the appeal to the board or that it waived notice, the board would be without jurisdiction to consider the case. Ledbetter v. Roberts, 95 Ga. App. 652, supra.
The contention that a funeral home is an office building for professional use and that the zoning ordinance authorized what was done without the necessity of a variance is without merit. A funeral home is not an office building.
The court erred in sustaining the demurrers to the appeal.
Judgment reversed. Quillian and Nichols, JJ., concur.