Agenda - Planning Commission - 01/05/1999

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Page 6 -- December 24, 1998 Z.B. Conditional Use -- AT&T wants to build telecom tower on property conditionally zoned commercial Citation: AT&T Wireless PCS b,c v. Leafmore Forest Condominium Association of Owners, Court of Appeals of Georgia, No. A 98A1048 (J998) The Oak Grove Animal Clinic asked the DeKalb County (Ga.) Board of Commissioners to rezone property it owned from residential to commercial so it could operate a veterinary clinic. The board agreed, provided the clinic meet certain conditions: It had to retain the wooded area behind the property as a buffer to nearby condos, install lighting that would not shine on nearby property, and meet certain sound- and odor-proofing criteria. These conditions were created to minimize the clinic's intrusion on residents living nearby. The clinic agreed to allow AT&T Wireless PCS Inc. to build and operate a 180-foot communications tower on the property. AT&T applied to the public works department for a building permit. The department said the conditional rezoning requirements could be met if the tower were classified as a flagpole with antenna equipment attached and if the equipment needed to operate the tower was inside the cIinic building. AT&T amended its application, and the department granted its permit. AT&T started building the tower. Residents of the nearby Leafmore Condominiums demanded that AT&T stop construction. They sued AT&T, seeking a court order stopping construction. The court granted the residents judgment without a trial. It found the public works department couldn't grant the building permits without the board of commissioners' approval because the permits effectively changed the permit- ted use of the property. AT&T appealed. It argued construction of the tower was a permissible ac- cessory use of the property. It also claimed it had a vested right in the building permits. DECISION: Judgment affirmed. The construction of a communications tower on the clinic's property con- stituted a change in the conditional zoning requirements. The board of commissioners agreed to rezone the clinic's property to allow only a veterinary clinic. In granting the rezoning, it imposed restrictions that were designed to protect the clinic's neighbors and lessen the effect of the zoning change. The public works department should have considered these restrictions. By granting the permits, it essentially changed the zoning restric- tions. AT&T couldn't rely on the faulty building permits. Because the permits were invalid, the company had no vested right to build the tower. see also: Childers v. Richmond CotmO', 467 S.E. 2d 176 (1996). see also: Matheson ~: DeKalb ColtllO", 345 S.E. 2d 121 (1987).