These appeals concern Suddeth's application pursuant to Section
ever, the same standard of review applies. The trial court must affirm the Board's decision unless the Board acted arbitrarily, capriciously, and unreasonably.
15-1.3 of the Comprehensive Zoning and Land Use Resolution of Forsyth County (the zoning ordinances) 1
for a special-use permit to operate an airport in Forsyth County. After the Board of Commissioners of Forsyth County denied his request for a permit, Suddeth filed suit in superior court, naming the county and the individual members of the Board of Commissioners of Forsyth County as defendants (all defendants hereinafter will be referred to collectively as the board). The court denied the relief Suddeth sought, and Suddeth filed a notice of appeal. The board subsequently moved to dismiss the appeal on the ground of unreasonable and inexcusable delay. OCGA 5-6-48
(c). The court denied the motion, and the board cross-appealed that ruling.
Case No. 45504. The Board's Cross-Appeal.
1. The record does not support the board's contention that the trial court abused its discretion by denying the board's motion to dismiss Suddeth's appeal pursuant to OCGA 5-6-48
(c). The trial court's denial of that motion is affirmed.
Case No. 45503. Suddeth's Appeal.
2. Suddeth contends the trial court erred by failing to grant a writ of mandamus requiring the board to issue a special-use permit. Suddeth argues he has a clear legal right to the permit because it is uncontroverted he has satisfied all the requirements of Section 15-1.3 except for subsection (g), and because, he argues, subsection (g) is constitutionally invalid. We disagree. Section 15-1.3 (g) of the zoning ordinance provides:
The County Commission may issue a general airport use permit provided: . . . Said County Commission shall have determined that all of the foregoing requirements have been satisfied, and further, that the benefits of and need for the proposed airport are greater than any possible depreciating effects and damages to the neighboring properties.
We have invalidated statutes permitting the unfettered discretion of governing authorities to issue permits or licenses. See, e.g., Arras v. Herrin, 255 Ga. 11
(334 SE2d 677
) (1985); Crymes v. DeKalb County, 258 Ga. 30 (364 SE2d 852) (1988)
; Fulton County v. Bartenfeld, 257 Ga. 766 (363 SE2d 555) (1988)
. Compare Lithonia Asphalt v. Hall County Planning Comm., 258 Ga. 8 (364 SE2d 860) (1988)
, compare Levendis v. Cobb County, 242 Ga. 592
, 594 (1) (250 SE2d 460
) (1978). The ordinances in Crymes and Bartenfeld set forth no criteria governing the authority's exercise of discretion. The question here, as in Arras, Lithonia Asphalt, and Levendis, is "whether this ordinance . . . is drawn with sufficient specificity to apprise an applicant of common intelligence of the standards which he should anticipate the governing body will consider." Levendis, supra at 594.
An examination of the language of ordinances which have failed to withstand a constitutional challenge is helpful in answering the foregoing question. In Arras, we held unconstitutional a liquor license ordinance which provided:
"[t]he Board shall have full and sole authority, in its absolute discretion, to determine whether the applicant for a license . . . is a fit and proper person to operate the type of business involved . . . and whether the location of such business is proper and to the best welfare and in the best interests of Camden County. . . ."
Arras, supra at p. 11. In Lithonia Asphalt we held invalid a special-use ordinance which required the planning commission to find, with regard to the special use sought, that
Lithonia Asphalt, supra at p. 9, fn. 1. The ordinance here, unlike those in Arras and Lithonia, requires the board to conduct a balancing test. Specifically, the board is required to assess, first, "the benefits of and need for the proposed airport," and second, "any possible depreciating effects and damages to the neighboring properties," and, finally, to determine whether the former outweigh the latter.
We find the balancing test imposed on the board by the Forsyth ordinance sufficiently restricts the exercise of the board's discretion and distinguishes this ordinance from those considered in Arras and Lithonia Asphalt. While the zoning ordinance might have set forth in greater detail the criteria to be considered by the board in making its decision, nonetheless subsection (g) is not so vague as to be constitutionally deficient and does establish "ascertainable standards . . . by which an applicant can intelligently seek to qualify. . . ." Hornsby v. Allen, 326 F2d 605 (5th Cir. 1964). See Levendis, supra; Tempo Management, Inc. v. DeKalb County, 258 Ga. 713
(____ SE2d ____ (1988).
Judgments affirmed. 45503. All the Justices concur, except Smith and Bell, JJ., who dissent. 45504. All the Justices concur.
Robert S. Stubbs III, for appellees.