
    City of Atlanta v. Awtry & Lowndes Company.
   Atkinson, Presiding Justice.

1. Under the zoning ordinance of the City of Atlanta, undertaking establishments, together with other businesses and uses enumerated as Class U-7, may, under § 93-210 of the Code of the City .of Atlanta, be located in any use district; provided such use in such location will in the judgment of the Board of Zoning Appeals substantially serve the public convenience and welfare, and will not substantially and permanently injure the appropriate use of the neighboring property. McCord v. Ed Bond & Condon Co., 175 Ga. 667 (165 S. E. 590, 86 A. L. R. 703).

No. 16559.

April 12, 1949.

Rehearing denied May 12, 1949.

2. Where, under the terms of a city code, a particular business can not be located in any use district except by a permit from the Board of Zoning Appeals, and when to procure said permit it is necessary to establish that the use intended would substantially serve the public welfare and not substantially and permanently injure the appropriate use of the neighboring property, the burden of proof is on the applicant. Hyer v. Holmes & Co., 12 Ga. App. 837 (3) (79 S. E. 58); 42 Am. Jur. 466, § 131; 31 C. J. S. 718, § 108.

3. Whether to issue a permit allowing the undertaking establishment to locate in this particular use district was a- question in the discretion and judgment of the Board of Zoning Appeals under the terms of the Code, City of Atlanta, § 93-210, and the courts will not control this discretion unless manifestly abused. Chipstead v. Oliver, 137 Ga. 483 (2) (73 S. E. 576).

4. If the evidence had shown only a fanciful or aesthetic reason why the permit was not granted, the board would have abused its discretion; but there being some evidence, though in conflict with other evidence, that the funeral home would substantially and permanently, injure the appropriate use of the neighboring property, this court can not say the board’s action was unreasonable, arbitrary, and discriminatory.

Accordingly the judgment of the Court of Appeals is

Reversed.

All the Justices concur.

J. C. Savage, J. C. Murphy, J. M. B. Bloodworth, John E. Feagin, Hugh Howell Sr., and Morris B. Abram, for plaintiff.

. William A. Fuller and George G. Finch, for defendant.  