Kitchings v. Hennessee

1. The case of Lewenstein v. Brown, 200 Ga. 433 (37 S.E.2d, 332), decided that: "The Board of Zoning Appeals of Fulton County has no authority to grant permission for the erection of an apartment house on property that has been zoned for residence purposes only." The original judgment in the Lewenstein case, together with the questions raised on the motion for a rehearing which was denied February 21, 1946, are controlling adversely to the defendant in error in the instant case.

2. Counsel for the defendant in error desires to question and review the decision in Lewenstein v. Brown, supra, for the purpose of having the same modified or overruled, and presented in his brief an express written request that we certify the question to the Supreme Court. The questions involved having been recently decided by the Supreme Court, and this court being of the opinion that the decision should not be overruled, we respectfully refuse to certify such question to the Supreme Court. Code, § 24-3645; Rhodes v. Elberton Eastern Ry. Co., 16 Ga. App. 426 (85 S.E. 611).

3. The judge of the superior court erred in overruling the certiorari.

Judgment reversed. Broyles, C. J., and Gardner, J.,concur.

DECIDED MAY 20, 1946. O. T. Hennessee Jr., defendant in error, applied to the chief building inspector of Fulton County for a permit to construct an apartment house on a lot owned by him on Peachtree Road, outside the corporate limits of the City of Atlanta. The chief building inspector refused the permit, and Hennessee entered an appeal to the board of zoning appeals of Fulton County. The matter came on for hearing before the board of zoning appeals, and on the hearing the building inspector was ordered to issue the permit to Hennessee, and an exception, or variance, was granted so as to permit the erection of an apartment house on said property in said district, on the ground that a refusal would work an undue hardship on said property. To this judgment of the board of zoning appeals, the plaintiffs in error herein excepted and carried the case to the superior court of Fulton County by writ of certiorari for review. The trial judge, after hearing the matter, overruled the certiorari, and to this judgment the plaintiffs in error herein excepted and bring the case to this court.