Agenda - Planning Commission - 09/07/2017

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August 25, 2017 I Volume 11 I Issue 16 Zoning Bulletin erty . . . to do a particular act or series of acts on land of another without possessing any estate or interest therein"), not an estate for years. Finding that the usufruct granted in the lease did not convey an interest in real property, the court held that the Foundation had "no cognizable interest in this zoning decision that it could assert adversely to the actual property owner's interest." Under those circumstances, 'said the court, "it cannot be said that the tenant has a substantial inter- est in this zoning decision that grants it standing to challenge the decision." See also: DeKalb County v. Wapensky, 253 Ga. 47, 315 S.E.2d 873 (1984) (finding party holding vested or inchoate title to real property satisfied first prong of standing test regarding "substantial interest"). See also: Miller v. Fulton County, 258 Ga. 882, 375 S.E.2d 864 (1989) (finding that challenger of zoning decision who has no estate or interest in real property has no standing because he/she can not show substantial interest in zoning decision). Case Note: In its decision, the court noted that, although the Foundation lacked standing to pursue a reversal of the County's zoning decision, the Foundation may have a contractual remedy for damages that it alleged it suffered if Lucas' property development impaired or destroyed the value of the Foundation's usufruct interest. More broadly, the court noted: "[T]he terns of a lease may impose a duty on the landlord to seek or op- pose a zoning decision in order to effectuate the intent of parties, but such a duty is contractual and may be enforced by an action against the landlord. Conversely, if the landlord obtains or resists a zoning decision such that the tenant's rights under the lease are adversely impacted or damaged, the tenant may have a remedy against the landlord for breach of contract." Case Note: The Foundation had cited case law from other jurisdictions to support its as- sertion that a tenant has standing to challenge a zoning decision. The court found reliance upon those cases was "unpersuasive" because "Georgia's landlord and tenant law is unusual in that it is based not on the common law but upon the statutory provision that the grant of a right simply to possess and enjoy the use of real estate passes no estate to the tenant but only a usufruct." (See OCGA § 44-7-1 (a).) Case Note: The Foundation had also argued that it had a substantial interest in the zon- 4 © 2017 Thomson Reuters