*1 simple devise to Ella the contested fee ab- Clifton and clearly refers to this devise solute. section and modifies it Ella, a life with to create estate Clifton the remainder In obviously Clifton’s children. These sections are such a conflicting. case cardinal rule to ascertain the intention “[t]he testator from the four corners of the will. Effect should be every part entire All given possible. will and possible of the instrument will be harmonized wherever Co. Ga., therein.” Riser Trust give provision every effect 155, Where lesser estate men- clearly estate, tioned and the conveyance limits of an absolute it will effect. OCGA 44-6-21. Watts v. Finley, given § All the Justices concur. May 31, Sherrell, Jay, & Croley, III, Smith E. John Smith appellants. Fred Rigdon, Jr., W. for appellee.
40624, DeKALB COUNTY et al. WAPENSKY (two cases).
et al. Smith,
This is a zoning Appellants variance case. case number County al., DeKalb et rely have on the enumeration and arguments by appellant submitted case num- ber 40624. Therefore these two cases be treated as one. (but
Appellees are neighbors who reside on adjacent lots appellee) one Eli Corporation, owned Lee proposed develop it parcel had assembled in 1981 by constructing condominium tower. building and site use County zoning violated certain of the DeKalb ordi- nances and in Eli Lee sought December four variances needed in order proceed. The project important first and most these variances concerned a to allow reduction 33% quired lot at minimum building width setback line. Eli Lee con- tended that without proposed this variance could not build the high-rise condominium tower. County Development DeKalb ap- recommended
proval variances, of the first three fourth with- neighbors opposing drawn. The project appealed to the DeKalb Appeals, which in Zoning January 1982 voted to appealed requested Eli Lee this decision all the variances. to DeKalb February approved that board Code 11-2324.At a concerning width, down minimum lot and turned first remaining appeal on the two. Eli Lee’s Superior appellees filed in DeKalb Court suit March *2 April contesting partial filed a for this decision. summary contending judgment, of that the Board Commis- granting single in discretion variance. abused its sioners had motion, at the same time this trial court standing challenge neighbors of the Board of to the decision granting superior in It is from the order court. bring appeal.1 both Eli Lee and DeKalb now motion that We affirm. appellants error contend that it was
1. In their enumeration grant appellees’ motion for court to trial genuine issue of material fact as to whether in that lees had ance was a superior challenge in of to question. in recently involv- a case
We have examined the issue of challenge ing ing. property adjoining a rezon- of of land to owners 192) (314 (1984), Wilson, v. In Brand SE2d we said person claiming steps standing: First, that wére that there aggrieved zoning decision, in the must have a substantial interest suffering special danger second, some interest be and similarly damage injury situ- all owners or not common to general By “similarly com- situated,” refer ated. munity we per- may merely exclude those suffer inconvenience and injury which stand to suffer their sons who enjoyment Although derogates from use of it. their reasonable and central such includes increased traffic tolerable inconvenience 1 1, 1982, prior in cases were rendered in We first note that our decisions November 69-8, chapter zoning planning. light This Ann. which addressed local Ga. Code Ch. IX, IV, Georgia, repealed to Art. Sec. and not reenacted the Official Code of Assembly Georgia provided shall II of the that “the General Par. not, Constitution restrict, any any manner, regulate, authority limit the munici thereof, City pality, any v. herein defined.” See Warshaw combination and zone as (299 Atlanta, Degnan, Zoning See 250 Ga. SE2d also Judiciary, Emory prior deci 827 Therefore those cases where the court’s L.J. analyzed county municipal practices regulating zoning will be sion relied on a state statute decisis, according precedential principles stare and accorded value under the statutory applicable. heretofore the canons of zoning requirements technically Although from is at issue it is a variance extant by neighbors contesting involving liken this case to those suits here zoning body’s not a rezoning sufficiently analogous provide au- find those cases action controversy. thority deciding question presented e.g., See Cocroft Peters, 241 Corp. e.g., district, Victoria v. Atlanta see Merchandise App. (1960), Mart, 101 Ga. it does not include a living pro- diminution in value to a homeowner across the road from a posed exceeding neighbors’. Burry hotel who suffers losses his App. Reviewing present case, the facts of the we conclude that these adjoining property changed owners who will bear the brunt of the resulting development question of the site have a substantial interest the decision of the DeKalb Board of Zoning Ap- Commissioners to reverse the DeKalb peals a variance to allow reduced minimum lot width. casting “champions These are not themselves in the role of community,” against Appeals which the Court of warned in Victo- Corp., supra, presented ria but have in fact evidence of an interest of importance. real worth and having
The second is that citizens a sub- damage by stantial interest must suffer substantial reason of the con- zoning supra tested variance. Brand v. at 417. In Brand we percent concluded that evidence of a 15-20 decline value of a com- plainant’s (which adjoined question) the site in was suffi- might *3 cient evidence which a trial court find substantial only to a substantial interest. In the case not was there testi- mony neighboring properties that the value of reduced, would be but damages that additional noise, odor, the form of and visual intru- peace privacy varying degrees sions on complainants’ would occur property. use of their These are sufficient substantial damages these circumstances the second genuine Therefore, was met. we find that there remains no issue appellees material fact as to to contest the zon- ing supe- decision of the DeKalb Board of Commissioners in ruling. rior court and the trial court was correct in so Appellant also contends that it was error to lees’ motion for fraud, pression in that failed to show corruption zoning power op- or manifest abuse of the to the neighbors, citing Glenn, Johnson v. 1) Appellees finding submit that the trial court was correct in abuse of discretion because the Board of Commissioners failed to consider appropriate hardship necessary evidence of to authorize issuance justify of the variance. The trial court concluded on this issue that to application, of a variance must establish that ex- ceptional topographic extraordinary exceptional or other condi- pertain subject property tions to a and that denial of the practical hardship. result difficulties or undue The trial court also concluded that mere inconvenience does not constitute Inter- difficulty justify as to a variance. See hardship practical so County, national Funeral Services v. (3) See also Code of DeKalb
(variances). to the evidence submitted defense
Applying standard motion, that the trial court found Board Corporation exceptional top- did not hear evidence from Eli Lee extraordinary ographic exceptional or other conditions pertained subject property or that denial of variance would hardship. result in or undue practical difficulties not to the vari- showed that would elect build Reviewing the evidence transmitted this court ances were denied. record, transcript which includes a this mat- ter before the DeKalb constru- favorably most ing that evidence in its
appellee, we conclude that the trial court was correct hardship difficulty as to practical no evidence of issue of forthcoming. ance was no material fact re- maining and no merit this enumeration. J., concur, Hill, C. except All the Justices
Marshall, J., Weltner, J., who as to Division 2. P. May Rehearing denied June Dillard, George P. Zachary Segraves, Carpenter, & Kenneth W. Calhoun, for appellants. Richard W. Zickert,
Valíanos, Homer, Kathryn appellees. M. Joh Justice, concurring part dissenting Chief part. Hill, and, I I opinion the first of the court division which, although write to state me separately a “rule thumb” this, very practical may sufficiently legalistic cases such as not be adoption as a law. Brand Ga. 416 rule of 192) (1984), I step standing. a two test for see, spectfully neighbor can hear or practice submit *4 smell proposed development, sight, the if its sound or odor be offen- sive, Certainly, Brand v. adja- has under the Wilson test. an owner, cent touches whose the to be de- veloped, its the of a object has allowance case, in this I join variance. Because “rule of thumb” satisfied Division 1 the majority opinion. division, 2. I must Division In that the ma- dissent Services, Funeral Inc.
jority rely upon International County, 244 In that case the applicant was to show by sought denied the the arbitrary, capricious that denial of variance was or an abuse of the county. granted by discretion. Here the variance was the not for the necessary or establish court its (with the right majority’s the as the trial court concluded Instead, proof approval). oppo- the burden of court was on the nents, fraud, corruption the manifest plaintiffs, show abuse of oppression neighbors. the variances to the Cross Hall I there- fore dissent.
I am Presiding authorized to state that Marshall Justice and Jus- tice Weltner in this as to Division 2 of the majority opinion. N,
40767. N & INC. v. VELINE.
Gregory, N, We application the of N Inc. interlocutory ap- peal from an County. order State Court of Houston The court’s appellant’s order denied of 42 eight return milli- film meter projectors appellee contends were seized projectors based evidence the used to were show ob- scene movies. were Appellee projectors also contends seized to be as used evidence four with the showing individuals associated films. We remand with direction.
The issue we are asked to decide seizure of the projectors procedures under the circumstances case vio- appellant’s rights lated under First and Fourteenth Amendments United States Constitution and similar of the Geor- gia Constitution. interlocutory
Because is an appeal yet have not facts fully developed. disputed been certain facts are by appear projectors by the record. The were seized officers August Warner Robins Police on The officers executing separate were warrants for search establishments, National Book Mart and Manor At the News. same time, four were arrested for the offense distributing ob- scene materials. OCGA 16-12-80. N,
On October 1983 N & Inc. filed a motion return of projectors, alleging they it was the owner had and that been ille- gally Veline, Jr., seized. A. Carl the Solicitor of State Court of Houston County, respondent person was named as the possession the projectors. The motion was heard the trial judge October that argument The court’s order recites counsel was heard and the found as facts the projectors order