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SANDERS et al. v. ERVIN COMPANY et al.
Mandamus. Fulton Superior Court. Before Judge Tanksley.
FELTON, Justice.
1. Where the official public minutes of the Fulton County Board of Commissioners shows that the board rezoned certain property "pursuant with stipulations presented by" the attorney of the then owner and applicant for rezoning, which stipulations were incorporated in said minutes, this amounted to a conditional rezoning.
2. The appellant, present applicant for a building permit for said property, not having complied with the condition, was properly held to be not entitled to the writ of mandamus to compel issuance to it of the permit.
The Ervin Company filed a complaint for the writ of mandamus against the Commissioners and the Director of Inspections and Licenses of Fulton County to compel the issuance to it of a building permit for the construction of a proposed apartment project, to be built according to plans and specifications filed with the county along with its application. The pleadings show that Mr. Carnes, the attorney for the plaintiff's predecessor in title, made certain stipulations in applying for a rezoning of the property from AG-1 (agricultural) use to A (apartment) use, including commitments to construct according to the site plan submitted to the planning staff and to build 380 units (12 or 13 to the acre). The Commission, in approving the application, rezoned the property from AG-1 to A, "pursuant with stipulations presented by Mr. Carnes." Attached as an exhibit to the complaint is a letter from the defendant director to the plaintiff, denying the application for a permit on the ground that it did not meet in several particulars the conditions under which the property was zoned. C. A. Sanders and others filed a motion to intervene, which the court denied. The matter was ultimately tried before the court without a jury, resulting in a judgment denying the writ of mandamus, from which judgment the plaintiff and the intervenors appeal, the latter enumerating as error the denial of their motion to intervene.
The construction of a zoning ordinance, under the facts, is a question of law for the courts, and in construing it the cardinal rule is to ascertain and give effect to the intention of the lawmaking body. City of Rome v. Shadyside &c. Gardens, 93 Ga. App. 759, 763 (92 SE2d 734). In determining the intent of the defendant commission in rezoning the subject property, all of the commission's words used to effect this revision should be given due weight and meaning; however awkward and unusual the language may be, the legislative intent manifested by it must be ascertained and enforced as the law. Smith, Barry & Co. v. Davis, 85 Ga. 625, 631 (11 SE 1024); Falligant v. Barrow, 133 Ga. 87, 92 (65 SE 149); Davison v. Woolworth Co., 186 Ga. 663, 664 (198 SE 738, 118 ALR 1363). The phrase "pursuant with stipulations presented by Mr. Carnes," meant "in conformance to or agreement with" such stipulations and one synonym of "stipulation" is "condition." See Webster's Third New International Dictionary of the English Language, unabridged 1968 edition. Giving effect to this phrase, which was specifically included and italicized in the official commission minutes, therefore, demands the finding that the property was conditionally rezoned, the conditions being all of those stipulations made upon the rezoning hearing and entered in the official and public minutes of the board of commissioners.
That the original applicants for rezoning, the present appellant and the county commission all clearly understood the intent of the commission in the original rezoning to have been conditional rezoning, is apparent from the fact that the attorney of the former owners and appellant's architect both requested, and were granted, an extension of the zoning deadline by the board of commissioners, which deadline is applicable only to conditional zoning under the Fulton County zoning regulations. Conditional zoning has been recognized and approved by this court. See Guhl v. Manning, 223 Ga. 796 (158 SE2d 230).
An examination of the record reveals that the plans submitted in support of the appellant's application for a building permit, were not in either strict or substantial compliance with the condition. Not having complied with the condition and not having a clear legal right to have the building permit issued to it, the appellant applicant was not entitled to the writ of mandamus, as the trial court properly held. See Jowers v. Griffin, 220 Ga. 242 (1) (138 SE2d 370) and cit.
The judgments of the trial court, denying the writ of mandamus and denying the motion to intervene, are affirmed.
Judgments affirmed. All the Justices concur.
Peek, Whaley & Haldi, Glenville Haldi, J. Robert Hardcastle, for Sanders.
Webb, Parker, Young & Ferguson, Paul Webb, Jr., for Brown et al.
Smith, Cohen, Ringel, Kohler, Martin & Lowe, Hoke Smith, Douglas C. Lauderdale, Jr., for Ervin Company.
Friday May 22 15:46 EDT

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