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Miller v. Hill

February 06, 2003

JOSEPH MILLER AND PAMELA MILLER, PLAINTIFFS-APPELLANTS,
v.
DAVID G. HILL, DEFENDANT-APPELLEE.
JOSEPH MILLER AND PAMELA MILLER, PLAINTIFFS-APPELLANTS,
v.
FULTON COUNTY ZONING BOARD OF APPEALS AND DAVID G. HILL, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Fulton County. No. 99-CH-35 Honorable Larry W. Heiser, Judge, Presiding. Appeal from the Circuit Court of Fulton County. No. 99-MR-23 Honorable Chellis Eugene Taylor, Judge, Presiding. Appeal from the Circuit Court of Fulton County. No. 00-MR-7 Honorable Chellis Eugene Taylor, Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman

Unpublished

Plaintiffs, Joseph and Pamela Miller, bring these consolidated appeals contesting the results of two separate actions relating to the operation of a commercial trapshooting range in Fulton County. The firearm range, owned and operated by defendant, David Hill (Hill), is adjacent to plaintiffs' residence. It operates pursuant to a conditional use permit issued by the Fulton County Zoning Board of Appeals (Board) on August 27, 1998. Plaintiffs challenge the issuance and continued viability of Hill's conditional use permit. They also appeal the results of their chancery action in which the court rejected plaintiffs' request to enjoin Hill from further operation of the firearm range.

A hearing was held before the Board on August 26, 1998, addressing Hill's request to build and operate a firearm range on his property. Notice of the hearing was issued on August 12, 1998, to the local property owners. The notice stated that the hearing pertained to Hill's request "for a conditional use permit to construct a metal building for the purpose of operating a privately operated for profit outdoor recreational facility and to also operate a radiator repair shop" on his property. The notice was received by plaintiffs but they failed to attend the hearing.

The conditional use permit was unanimously approved by the Board. The permit established the following nine conditions:

"1. The establishment, maintenance, or operation of the conditional use will not be substantially detrimental to, or substantially endanger the public health, safety, morals, comfort, general welfare or the environment.

2. The conditional use will not be substantially injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially diminish and impair property values within the neighborhood.

3. The establishment of the conditional use permit will not substantially impede the normal an [sic] orderly development and improvement of the surrounding property for uses permitted in the district.

4. Adequate utilities, access roads, drainage, and/or other necessary facilities will be provided.

5. Adequate measures will be taken to provide ingress and egress so designed as to minimize traffic congestion in the public streets.

6. The applicant shall have one year from the date of issuance to implement the conditional use or the permit shall become null and void.

7. If at any time after the conditional use has been established, the use is discontinued for a period of one year or more, the conditional use permit shall become null and void.

8. The conditional use shall, in all other respects, conform to the applicable regulations of the district in which it is located.

9. Days and hours of operation for the trap Shooting Club will be Tuesday and Thursday from 5 p.m. to 9 p.m.; Saturdays from 9 a.m. to 5 p.m. and Sundays from 1 p.m. to 6 p.m."

During the fall of 1998, the range began operating and plaintiffs immediately became upset about the noise level. After several unsuccessful attempts at addressing the problem directly with Hill, plaintiffs filed a request with the Board seeking to void the permit on the grounds that the original notice was inadequate and, alternatively, to find the range in violation of the conditional use permit.

In response to plaintiffs' request, the Board held hearing proceedings on February 24, 1999, and April 29, 1999. At the proceedings, the Board allowed testimony from plaintiffs and Hill and also accepted a packet of information from plaintiffs containing various exhibits, maps, and opinions concerning the effects of the range on plaintiffs' property. On May 11, 1999, the Board ruled in favor of Hill and found the range to be in compliance with the terms of the conditional use permit.

After the Board's May 11 ruling, plaintiffs filed an administrative review action with the circuit court. On November 11, 1999, the court remanded the matter to the Board. The court directed the Board to conduct a full hearing on the matter and grant all interested parties an opportunity to testify.

On remand, the Board held a hearing in compliance with the court's directive. At the conclusion of the evidence, the Board found Hill to be in compliance with the terms of the conditional use permit. The plaintiffs then filed another review action with the circuit court.

The court then remanded the matter to the Board with directions to vote on specific questions regarding the Board's conclusions. The four specific questions voted on by the Board were as follows:

"(1) Is the establishment, maintenance, or operation of the conditional use substantially detrimental to, or does it substantially endanger the public health, safety, morals, ...


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