dissenting.
I must respectfully dissent from the majority opinion because I cannot agree with the majority’s interpretation of Josh Cabaret v. Dept. of Transp., 256 Ga. 749 (353 SE2d 346) (1987).
The majority contends that Josh Cabaret is distinguishable from the case at bar because the leaseholder in Josh Cabaret vacated the premises one month in advance of the announced condemnation, and the condemnation was cancelled before the announced date and consequently never occurred. In the instant case Lee’s application for a building permit was filed during the winter of 1983, and in June 1983 the City of Atlanta denied the permit as submitted, on the basis that the DOT had announced in May 1983 that a critical strip of the land would be condemned. It was not until May of the next year, 1984, that the taking actually got under way, with DOT making Lee an offer for the strip in question. The fact that in Josh Cabaret the taking never actually occurred is of absolutely no legal significance vis-a-vis the issue here.
Thus on its facts the instant case is not, as the majority contends, distinguishable from Josh Cabaret on the basis asserted in the major*5ity opinion. In both cases the loss to the subject property occurred after the plans for condemnation were announced but before the actual date of taking; the losses incurred in both cases were the direct result of an anticipated condemnation.
Decided March 10, 1989 Rehearing denied March 23, 1989 Thomas L. Washburn III, for appellant. . Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Roland F. Matson, Senior Assistant Attorney General, James S. Howell, Special Assistant Attorney General, Weiner, Dwyer, Yancey & Mackin, Dennis S. Mackin, J. Matthew Dwyer, Jr., Thomas C. Dempsey, for appellee.Although I certainly concur in the majority’s expression of a desire for a less “inequitable” result than that dictated by Josh Cabaret, the prerogative of altering the law to fit its own desires belongs not to the courts but to the legislature. The rule enunciated in Josh Cabaret, id. at 3, is clearly applicable to the facts of the instant case and should be controlling.
I therefore respectfully dissent.
I am authorized to state that Chief Judge Carley and Presiding Judge McMurray join in this dissent.