City of Decatur v. Fountain , 214 Ga. 225 ( 1958 )

214 Ga. 225 (1958) 104 S.E.2d 117

CITY OF DECATUR et al.
v.
FOUNTAIN.

20080.

Supreme Court of Georgia.

Argued May 14, 1958. Decided June 4, 1958.

James A. Mackay, Thos. O. Davis, B. Hugh Burgess, for plaintiffs in error.

Zachary & Hunter, Wm. E. Zachary, John C. Hunter, contra.

The petitioner brought his petition for mandamus against the City of Decatur, its clerk, and the city commissioners, seeking a mandamus absolute requiring the defendants to issue him a building permit to erect a filling station on described realty in the City of Decatur. The petition alleged the following: On December 17, 1957, the city by ordinance zoned said property for business use. Thereafter, the petitioner submitted his application to the city commissioners in accordance with the ordinance requiring all applications for the erection of any structure for business purposes to be submitted to the board of commissioners. Plans and specifications were filed with said application as required by ordinance. At their first meeting on or about January 6, 1958, the commissioners referred the application to the city planning board, an advisory board appointed by the commissioners, which board recommended that the application be deferred. At the regular meeting of the commissioners on January 21, 1958, the petitioner appeared personally and by counsel, and renewed and requested that his application be granted, it having been represented to him by the city engineer and by petitioner's architect that the plans and specifications submitted complied in every particular with the requirements of the city engineering department and the code of the City of Decatur. At said meeting a petition from a number of citizens was presented protesting the zoning of petitioner's property for business and requesting that the property be rezoned for residential use. Said petition was accepted by the commissioners and made a part of their records. At said meeting the commissioners refused to grant or deny petitioner's application but deferred any action thereon. At their regular meeting on February 4, 1958, the commissioners failed and refused to act on petitioner's application, but acting upon a prior recommendation of the planning commission, the board of commissioners passed a motion by one of its members that action upon said application be deferred until a comprehensive rezoning plan could be completed and adopted. At said meeting one of the commissioners commented that it was doubtful that a new comprehensive zoning plan and land use program would ever be adopted. Under the practices of the City of Decatur, building permits are issued upon instructions from the commissioners, and without such instructions no permit can be issued to petitioner by any employee or officer of the City of Decatur. At meetings when petitioner's application was pending, the commissioners have granted numerous other applications for building permits, and in some instances contrary to the recommendations of the planning board. The petitioner has complied with all ordinances and provisions of the building code of the city, his property has been validly zoned for business use, and he is entitled to have a building permit for the construction contemplated. The petitioner denies that the defendants are vested with any discretion in the issuance of said permit, but contends that, if they are vested with discretion in the matter, they have abused their discretion and have acted arbitrarily, capriciously and unlawfully. The defendants have not given petitioner any reason for failing to issue the permit, and their refusal is contrary to stated provisions of the Constitution of Georgia, in that it deprives petitioner of the right to use his property for a lawful purpose. The prayers were for a rule nisi, that upon hearing the mandamus be made absolute, that the defendants be restrained from acting upon the petition to rezone his property until his application could be considered by the court, and for other relief.

The defendants filed a general demurrer, and the parties stipulated that there were no issues of fact and that the ruling on general demurrer would be controlling. The trial court overruled the general demurrer, granted the prayer for mandamus absolute, and ordered the defendants to issue the building permit. To this order three of the defendant commissioners have excepted.

MOBLEY, Justice.

1. "To entitle one to the writ of mandamus, it must appear from the petition therefor that the applicant has a clear legal right to have performed the particular act which he seeks to have enforced. Code § 64-101; Douglas v. Board of Education of Johnson County, 164 Ga. 271 (138 S.E. 226); Hodges v. Kennedy, 184 Ga. 400 (191 S.E. 377); Harmon v. James, 200 Ga. 742, 744 (38 S.E.2d 401)." Trussell v. Martin, 207 Ga. 553, 556 (63 S.E.2d 361). Under the agreed stipulation between the parties, there were no issues of fact, the only question being whether the petition makes a case for mandamus against the defendants. The defendants constitute the governing body of the City of Decatur and are solely vested with authority to issue building permits within the limits of that city. The petitioner's land has been validly zoned for business use, and he has complied with all of the ordinances and requirements of the city necessary to be entitled to a building permit. Under the allegations of the petition the duty of the defendants to issue the permit is clear. It nowhere appears that the defendants are authorized to grant or refuse such permits in their discretion where an applicant has complied with the requirements of law relative thereto, and where a municipality by ordinance prescribes the conditions, regulations and restrictions required to obtain a permit, it thereby fixes its discretion as to the issuance of a permit and all persons meeting the requirements of the ordinance are entitled thereto upon proper application. See McWhorter v. Settle, 202 Ga. 334 (2) (43 S.E.2d 247). Where the ordinances of the city simply require that every person who proposes to erect a building within the city should submit his plans to the city authorities who are vested with the duty to issue permits, and where the applicant has complied with all of the requirements of the ordinances, the city authorities are not authorized to decline the permit unless the proposed structure is a nuisance per se. City of Pearson v. The Glidden Co., 205 Ga. 738, 743 (55 S.E.2d 125). It has been many times held by this court that a filling station is not a nuisance per se. City of Hawkinsville v. Williams, 185 Ga. 396, 399 (195 S.E. 162), and cases there cited. The only reason assigned by the defendants as constituting a defense to the instant case is their contention that they had the right to rezone the plaintiff's land during the pendency of the suit, had they not been enjoined from doing so, and, therefore, having the right to rezone the property, the plaintiff failed to show a clear legal right to the writ. This argument presents no legal defense to the present action. Under such a view a litigant's rights would never be certain so long as the law under which he proceeded could be amended at some future time. Whether or not the petitioner's land could be rezoned at some future date, at the time his application was presented to the defendants, and up until the present suit was filed, the land had not been rezoned, and the defendants were under a clear legal duty to issue the permit applied for. It appearing that the petitioner was entitled to the permit which he sought, the trial court did not err in overruling the general demurrer and making the mandamus absolute.

2. Since the decision of the trial court is affirmed, no ruling will be made on the motion to dismiss the bill of exceptions.

Judgment affirmed. All the Justices concur.