Ansley House, Inc. v. City of Atlanta

Weltner, Justice,

dissenting.

1. Because the developers in this case were able to spend one million seven hundred thousand dollars to renovate a dwelling house that was zoned for single family residential use, this court has found an “intent” not to “abandon” a “use.”1 (Opinion, p. 543.) That amounts to the sanction by the court of the operation, in the midst of a residential area, of what is little different from a commercial hotel.2

*5442. There are other flaws in the majority opinion.

(a) The majority has substituted the views of two legal commentators for the holdings of the Supreme Court of Georgia.3 The heart of the majority opinion is that only “intent” can effect an abandonment; and that “intent” must be discerned from the circumstances. To read into the plain meaning of the city ordinances such a subjective “rule” is directly contrary to our case of Clark v. International Horizons, 243 Ga. 63 (252 SE2d 488) (1979), as follows:

[Nonconforming] uses are not favored in the law because they detract from the effectiveness of the comprehensive zoning plan. See: Anno. 56 ALR3d 14, 48-50, § 7; 56 ALR3d 138, 166, § 7; 57 ALR3d 279, 317-319, § 7. [Id. at 66.]

(b) Even assuming such a “rule” of “intent,” the majority has applied it to the wrong party. As noted at p. 540 of the opinion, the nonconforming use in question was enjoyed by a former owner of the residence. The use was discontinued when the mayor of the city revoked the business license to operate a rooming house “due to housing, building, and electrical code violations.” Id. Both the use and the termination of that use occurred during the prior ownership of the dwelling house. Given the majority’s “rule,” what is the possible materiality of any “intent” to abandon on the part of anyone other than the person who discontinued the prior use? The majority holds, by necessity, that an “intent” not to abandon is a muniment of title — an incorporeal hereditament — running with the land, and transferable as an element of title. Otherwise, where did the developers acquire the “right” to formulate the “intent” not to abandon the rooming house use? There can be but one source, of course, and that is the prior owner.4

(c) Even assuming the majority’s “rule,” the holding is directly contrary to the factual recitations of the opinion. The nonconforming use of the premises was, as a matter of law, abandoned by the prior owner by virtue of the continuous code violations. See, e.g., Jackson v. State, 204 Ga. 47, 48 (48 SE2d 864) (1948):

[E]very person is presumed to intend the natural and proba*545ble consequences of his conduct, particularly if that conduct be unlawful and dangerous to the safety or lives of others.

3. The correct end of this case is to affirm the trial court.

(a) The following authorities govern permissible nonconforming uses:

(i) When a nonconforming use of a major structure or major structure and premises in combination is discontinued for a continuous period of one (1) year, the structure, or structure and premises in combination, shall not thereafter be used except in conformity with the regulations of the district in which it is located. Such restriction shall not apply if such cessation is as a direct result of governmental action impeding access to the premises. [City of Atlanta Code § 16-24.005 (5).]
(ii) (2) Nonconforming uses are declared by this chapter to be incompatible with permitted uses in the district involved .... [City of Atlanta Code § 16-24.001.]
(iii) [Nonconforming] uses are not favored in the law because they detract from the effectiveness of the comprehensive zoning plan. [Cits.] [Clark v. International Horizons, supra.]

(b) The following authority pertains to the revocation of a business license:

(i) New applications not to be accepted for 12 months. When any application for a permit to transact any business within the control of the police powers is denied for cause or revoked for cause by the mayor it shall be unlawful for the bureau of police services to accept or consider any application for license to operate at that location the same type of business within 12 months from the time of the rejection by the mayor.
(ii) Restriction upon license review board. It shall be unlawful for the license review board to consider any application mentioned in subsection (a) or motion for rehearing of that application within 12 months without specific authority from the mayor. [City of Atlanta Code § 14-6001.]

(c) In this case, the discontinuation of the nonconforming use was the result of the loss by the prior owner of his business license because of numerous code violations. The authorities we have cited *546make it clear that, given the nature of permissible nonconforming use status, the discontinuation of that use for 12 months effected its loss by operation of law.5

Decided October 18, 1990 — Reconsideration denied November 16, 1990. Peterson, Dillard, Young, Self & Asselin, Dick Wilson, Jr., for appellant. Rogers & Hardin, Richard H. Sinkfield, Terry L. Houser, David D. Blum, for appellees.

I am authorized to state that Justice Hunt and Justice Benham join in this dissent.

That “use” is one that the developers never had, as shown below. See Corey Outdoor Advertising v. Bd. of Zoning Adjustment of the City of Atlanta, 254 Ga. 221 (327 SE2d 178) (1985) (permit for illegal use is void and vests no property rights).

The judgment in this case will restore the prior nonconforming use of a “rooming house.” That, in itself, raises a host of additional questions, which will have to be addressed in later litigation, e.g., whether a “bed and breakfast” establishment, as the current Ansley Inn is known, can qualify as a “rooming house” under the Code of the City of Atlanta. Can commercial activities, such as receptions, exhibitions, etc., lawfully be conducted in a “rooming house?” See id. § 16-29.001 (12) (b) 6:

Rooming house: A building or group of attached buildings containing in combination 5 to 20 lodging units housing no more than 20 persons for occupancy for weekly or longer periods, with or without board, as distinguished from hotels and tourist homes in which rentals are generally for daily or weekly periods and occupancy is by transients. [Emphasis supplied.]

See also § 16-24.005 (1):

No existing structure devoted to a use not permitted by this chapter in the district in which it is located shall be enlarged, extended, or moved, except in changing the use of a structure to a use permitted in the district in which it is located.

Opinion, p. 542, citing A. and D. Rathkopf. If we are to yield our case authority to commentary, we more profitably should rely upon consistent commentary. See, e.g., McQuillin, Municipal Corporations, § 25.182 (3d ed.), “Existing and lawful nonconforming uses are contrary to public policy, and they are protected only to avoid injustice and that is the limit of their protection against conformity.”

That owner’s right of use was forfeited by a series of code violations. Can it be that this “right” to formulate an “intent not to abandon” carries with it something of the nature of negotiability, where a supposed holder in due course can acquire a right greater than that held by its transferor?

The developers insist that they had accomplished a “use” of the facilities within the 12-month suspension period by performing extensive renovations. But “use,” in the sense of the governing ordinances, must be equated to the prior nonconforming use — in this case, as a rooming house. See Atlanta City Code § 16-29.001 (1): “The words used or occupied include the words intended, designed, or arranged to be used or occupied.” (Emphasis in original.)