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City of Alpharetta v. Estate of C.R. Sims

Plaintiffs could not compel city to issue a conditional use permit to construct a gas station on their property, since city's denial of permit was based on plaintiffs' failure to take reasonable steps to preserve a specimen oak tree as part of their development plan.

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We granted the application for discretionary appeal filed by the City of Alpharetta and City officials “the City” to address whether the trial court erred by concluding that the City abused its discretion in denying an application for conditional use permit made on behalf of appellees, the Estate of C. R. Sims and its two executors. The City Council denied the application for a special use permit to build a gasoline station on appellees’ property on which is located six specimen trees, including one oak deemed a “very significant tree” by the City’s Director of Planning and Community Development. The superior court granted appellees’ petition for mandamus and overturned the City’s decision.

Mandamus will issue only where the petitioner has demonstrated a clear legal right or a gross abuse of discretion. Gwinnett County v. Ehler Enterprises, 270 Ga. 570 1 512 SE2d 239 1999. Although the City ordinance in issue sets forth four criteria to be satisfied before a conditional use permit should be issued, the criteria themselves contain subjective aspects.1 Hence, the trial court’s ruling was not based upon any clear legal right but rather upon the express determination that appellees had demonstrated a gross abuse of discretion.2

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