Awtry and Lowndes Co. v. City of Atlanta , 78 Ga. App. 390 ( 1948 )

1. The right to work and make a living by exercising a lawful business in a lawful manner is fundamental, natural, inherent, and is one of the most sacred and valuable rights of a citizen; and it may be abridged to the extent, and only to the extent, that is necessary reasonably to insure the public peace, safety, health, and like words of the police power.

2. The undertaking business is lawful, and when it is conducted in a lawful manner, it must be held to have an equal right with other businesses to locate in an area appropriately zoned, where it is uncontradicted that such location will substantially serve the public convenience and welfare, and where it is not shown that it would substantially and permanently injure the appropriate use for which the property has been designated by the zoning officials, since this business is permitted to be located somewhere in the city but no zone is designated in which it may be conducted as a matter of right.

3. The action of the board of zoning appeals in construing and applying the sections of the zoning ordinance here in issue so as to authorize themselves under the facts presented in the record of this case to refuse a mortuary a permit to operate its business in a zone devoted to business uses, was unreasonable, arbitrary, and discriminatory; and the judgment of the superior court, overruling the writ of certiorari, was erroneous.

DECIDED DECEMBER 2, 1948. REHEARING DENIED DECEMBER 16, 1948. Awtry Lowndes Company contracted to buy the building and land of the Standard Club on Ponce de Leon Avenue in Atlanta for use as an undertaking establishment, and filed, with the Board of Zoning Appeals of Atlanta, its petition for a permit to establish and operate such a business on the premises. Upon protest by the Yaarab Temple of Atlanta against the grant of the permit, the Board of Zoning Appeals denied the application, and on petition and writ of certiorari the finding of the board was affirmed and the certiorari was overruled by the Superior Court of Fulton County. To this judgment Awtry Lowndes excepted.

A city planning plat of the Ponce de Leon Avenue area, which was introduced in evidence, showed that the property on the north side of Ponce de Leon Avenue from Peachtree Street to Ponce de Leon Park is zoned for business under Class U-3, and that the Standard Club property is located at about the middle of this distance; but that the property on the south side of Ponce de Leon Avenue, opposite the Standard Club, is classified as U-2 for hotels and apartment houses. The pertinent parts of the Atlanta zoning ordinance, as shown by the record, are hereinafter set out.

"A Class U-6 use may not be located within the present limits of the City of Atlanta. A Class U-7 use may be located only on special permit as provided in the following sections." City Code of Atlanta, § 93-209.

"Use district exceptions: (a) the board of zoning appeals may in a specific case, after public notice and hearing and subject to appropriate conditions and safeguards, determine and vary the application of the use district regulations herein established in harmony with their general purposes and intent as follows: . . (3) Permit in a use district any use deemed by the board to be in general keeping with the uses authorized in such district; . . (5) Permit the location of a Class U-7 use 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." City Code of Atlanta, § 93-210.

Class U-3 is a business zone providing for the following uses: bank; office; studio; telephone exchange; wholesale sales office or sample room; oil-filling station; fire station; ice-delivery station; retail trade or shop for custom work or the making of articles to be sold at retail in the premises; restaurant; theatre; moving-picture show; billboard or advertising sign; garage or repair shop for motor vehicles; hand laundry; electric substation; storage in bulk of, or warehouse for, such material as building material, contractor's equipment, clothing, cotton, drugs, drygoods, feed, fertilizer, food, fuel, furniture, hardware, ice, machinery, metal, oil and petroleum in quantities less than tank car lots, paint and paint materials, pipe, rubber, shop supplies, tobacco or wool; streetcar barns; and any use not included in any other class, provided such use is not noxious or offensive by reason of the emission of odor, dust, smoke, gas or noise.

Uses included in Class U-7 are: crematory, cemetery, sewage-disposal plant, refuse dump, undertaking establishment, markets established upon vacant lots or parts of lots, being places where produce is sold from cars or wagons or upon the lots named, and church. Uses for these and other classifications are set forth in the City Code of Atlanta, § 93-203.

The petitioner introduced as witnesses in its behalf: C. C. Styron, Chief of the Atlanta Fire Department, who testified that it would be in the public interest for Awtry Lowndes to move from their present location on Cain Street, which is within the interside fire limits and is a congested one-way street near a fire station, to the site of the Standard Club, outside of the interside limits; Herbert T. Jenkins, Chief of the Atlanta Police Department, who testified that it would relieve the traffic situation if the funeral home moved from Cain Street, because much congestion was caused by funerals being held in that locality; W. C. Wallace, who owns the property to the east of the Standard Club, conducting a hotel and tourist home thereon, and who testified that he would much prefer to have the funeral home located on the Standard Club property because it would increase the attractiveness of his business and make the occupancy of his rooms more desirable to have the quiet of the undertaking establishment rather than the past noise and interference of the Standard Club and the future noise of the Shrine; J. D. Erwin and Mrs. E. W. Adams, both neighboring property owners, who testified that they preferred to have the funeral home as neighbors rather than either the Standard Club or the Shrine; Mrs. W. C. Wallace, who testified that they (the neighboring property owners) did not want the Shrine to come in and run the neighborhood with their power and influence; Dr. Paul James, Pastor of the Baptist Tabernacle, which has a Student Center across the street from the Standard Club, who testified that the Baptist Student Committee favored having the mortuary locate in the Standard Club property; J. W. Awtry and Frank Lowndes, who testified that the funeral home conducted most of its activities in the daytime, though once or twice a year they might have a funeral at night, that the Shrine conducted most of its activities at night, that the Shrine would not bother the funeral home, and that the funeral home had no objection to having the Shrine next door. The petitioner also introduced a petition from substantially all the neighboring property owners endorsing the funeral home's acquisition of the property, and a letter from Marvin Thomas, Captain of Traffic of the Atlanta Police Department, stating that the traffic problem in the vicinity of Awtry Lowndes' establishment on Cain Street had become acute as a result of funerals being held there, and that it would be of great benefit in clearing up this problem if they were to move.

The Shrine introduced as witnesses A. S. Happoldt, Potentate; W. C. Harris, second in command of the Yaarab Temple; Roy Mather, Barnes Sale, Dr. Ben Holtzendorf, and Louis P. Taylor, all Past-Potentates; and Frank A. Cundell, member of the Shrine, all of whose testimony showed in substance that the Shrine in Atlanta was composed of something more than 5000 members; that the Shrine, before purchasing, had carefully selected the property adjacent to the Standard Club as a location where their activities would be the least objectionable; that the Shrine had been negotiating with the Standard Club for the purchase of the property in question, and was still willing to buy it, but the club had contracted with Awtry Lowndes; that the Shrine was planning to erect a Temple on their property, but it had not yet obtained a permit, preferring to wait until they had procured the Standard Club property and submit their plain in final form in their petition for a permit; that the Shrine is a fun-loving organization, engaged in charitable work, and conducting four ceremonials or parades each year, in which they use their bands; that their activities were principally at night and were confined to the early and reasonable hours of the evening; that they were afraid that their parades, band practices, and festivities would interfere with the operation of the funeral home, particularly on the days of parades, and that their activities would be objectionable to those in bereavement at the loss of one of their family and would condemn the Shrine in the eyes of the public, in addition to the fact that the members of the Shrine, as gentlemen, would be constrained, by their respect for the dead, in their use of their own property; and that, while the Shrine had been located next door to Awtry Lowndes on Cain Street for some twenty years without either interfering with the other, the members could not see having a funeral home located next to the new Temple and would not invest their money in the Temple under that circumstance. The questions presented by the record for our consideration are in substance two: (1) Did the construction and application placed by the board of zoning appeals upon the sections of the zoning ordinance of Atlanta, set out in the statement of facts, render such sections unreasonable and arbitrary under the facts of this case; and (2) if not, was there an abuse of discretion in denying Awtry Lowndes a permit under the evidence here presented? In passing upon the first question presented, the superior court construed the sections of the ordinance in issue as follows: "The ordinance which empowers the board to grant a variance is entirely permissive and empowers the board to vary a use from one class to another, provided in the judgment of the board such use will ``substantially serve the public convenience and welfare and will not substantially and permanently injure the appropriate use of the neighboring property'"; and in answer to the second question, the superior court held that the court was not authorized on certiorari to pass upon the conflicting questions of fact presented by the evidence and the writ of certiorari was overruled. (Italics ours.) With the answer to the first question we can not agree, as we shall endeavor to point out hereafter; and we think that the construction and application placed upon the sections of the ordinance here in question rendered the same unreasonable and arbitrary under the facts presented by the record.

It is well settled that the constitutional amendments of 1928 and 1945 (Ga. L. 1927, p. 129, ratified Nov. 6, 1928; Ga. L. 1945, p. 8, ratified August 7, 1945) altered the previously existing limitations upon the authority of municipalities to pass zoning and planning ordinances, and that such ordinances are now valid and enforceable. Howden v. Savannah, 172 Ga. 833 (159 S.E. 401). The modified principle, as it now exists in the law following such amendments, was well stated in Schofield v.Bishop, 192 Ga. 732, 738 (16 S.E.2d 714), as follows: "The law throws many protections around the ownership of property. This protection is written into the fundamental law both State and Federal; but when it comes to the growing needs, particularly in populous areas, for public regulation and restriction, we find we do not own our property as absolutely as is sometimes thought. There are many times misfortunes attached to the ownership of it. It declines in value because of shifting centers of business or of residents, or increases sometimes due to important developments. These are matters that can not always be controlled; and when a public body is granted or enjoys the power for the public benefit to put restraint on the use of the property in populous areas, the inquiry then is merely a matter of whether they had sufficient cause for the public good to make such restrictions. We know that ordinarily they should be in a better position to understand the needs of their own communities; and where they once are given the power, courts will not interfere with the exercise of it unless it appears that the rights of a citizen have been violated. It is not the business of the courts to regulate these governing bodies as to matters within their discretion."

"It need hardly be said that courts and not administrative boards are vested with power to determine all judicial matters, including those relating to rights of property touching zoning, but they are not inclined to interfere with the discretion of the board in the absence of evidence of arbitrary action or abuse of discretion." 3 McQuillin on Municipal Corporations (2d ed., 1943 revision), 519, § 1050. Unless the regulations are so utterly unreasonable and extravagant that the property and personal rights of citizens are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law, they do not exceed the limits of the powers delegated to the municipality by the Constitution and the legislature to pass zoning regulations. See Clein v. Atlanta, 164 Ga. 529, 535 (139 S.E. 46, 53, A.L.R. 933); Chipstead v. Oliver,137 Ga. 483 (2) (73 S.E. 576); Hallman v. Atlanta Child'sHome, 161 Ga. 247 (6) (130 S.E. 814). However, the zoning law is not to be so interpreted and applied as to render the statute and ordinance unreasonable and arbitrary; and if it is so interpreted and applied, such would be an abuse of discretion of which this court will take cognizance. Fauss v. McConnell,172 Ga. 444 (1) (157 S.E. 625).

"The right to work and make a living is one of the highest rights possessed by any citizen. It may be abridged to the extent, and only to the extent, that is necessary reasonably to insure the public peace, safety, health, and like words of the police power." Richardson v. Coker, 188 Ga. 170, 175 (3 S.E.2d 636. "``The regulation of a lawful business, however, is dependent upon some reasonable necessity for the protection of the public health, safety, morality, or other phase of the general welfare; and unless an act restricting the ordinary occupations of life can be said to bear some reasonable relation to one or more of these general objects of the police power, it is repugnant to constitutional guaranties and void.' Bramley v.State, 187 Ga. 826, 835 (2 S.E.2d 647)." DeBerry v.LaGrange, 62 Ga. App. 75, 79 (8 S.E.2d 146). See alsoCosgrove v. Augusta, 103 Ga. 835, 836 (31 S.E. 445, 42 L.R.A. 711, 68 Am. St. R. 149).

The governing body of the City of Atlanta possesses the power to zone and restrict the use of property, and the ordinances and acts of such governing body in the exercise of this power will not be disturbed by the court, unless they are unconstitutional or are clearly arbitrary and unreasonable. The municipality, however, does not have, as an incident to its power to regulate, the power to prohibit altogether a lawful business conducted in a lawful manner; and it cannot declare such a lawful business to be a nuisance per se. Jones v. Atlanta, 51 Ga. App. 218 (179 S.E. 922). It has only the power to prescribe the zone in which a lawful business, conducted in a lawful manner, may be carried on.

That the business of undertaking is one of unusual characteristics has been recognized in numerous instances; but it has with equal consistency been held that such a business is not a nuisance per se. Morrison v. Slappey, 153 Ga. 724 (113 S.E. 82); Harris v. Sutton, 168 Ga. 565 (148 S.E. 403);McGowan v. May, 186 Ga. 79 (196 S.E. 705). And seeBlackman Health Resort v. Atlanta, 151 Ga. 507, 511 (107 S.E. 525, 17 A.L.R. 516), where it is recognized that the municipality can by appropriate regulation prevent a nuisance from arising. The governing authorities of Atlanta were, therefore, justified in including undertaking establishments in a special category — Class U-7 — when classifying and zoning the City of Atlanta for the public health, welfare, safety, and convenience. In the exercise of the authority given them (Ga. L. 1929, p. 818, City Code of Atlanta, § 15-205), they have delegated to the Board of Zoning Appeals the authority to permit the location of a mortuary in any zone where, in the judgment and discretion of the board, such use will "substantially serve the public convenience and welfare, and will not substantially and permanently injure the appropriate use of the neighboring property." City Code of Atlanta, § 93-210. But, under the zoning ordinance, undertaking establishments, as well as the other business and non-business uses classified under U-7, cannot be located anywhere in the City of Atlanta without a special permit, and no zone is provided wherein an undertaking establishment may locate and carry on its business as a matter of right.

The tests imposed by the ordinance upon the Board of Zoning Appeals in the exercise of its discretion in the present instance — the granting of a special permit to a mortuary to locate its business anywhere in the city — are two: (1) provided the use will "substantially serve the public convenience and welfare," and (2) provided the use "will not substantially and permanently injure the appropriate use of the neighboring property." All the evidence introduced at the hearing leads inescapably to the conclusion that the removal of Awtry Lowndes' establishment from its present location on Cain Street to the Standard Club premises on Ponce de Leon Avenue will "substantially serve the public convenience and welfare." It is apparent then that the Board of Zoning Appeals reached its determination and denied the permit to Awtry Lowndes because it found that the use of the Standard Club property as a funeral home would "substantially and permanently injure the appropriate use" of the property of the Shrine for their Temple, for it appears from the record that other neighboring property owners were unanimously in favor of the granting of the permit, and only the Shrine objected. There was no evidence introduced which tended in any manner whatsoever to show that the undertaking establishment of Awtry Lowndes was not conducted in a lawful and inoffensive manner, nor any evidence to show that the use of the Standard Club property as a mortuary would result in a depreciation of the neighboring property for the purposes for which it had been designated in the interest of the public safety, health, convenience, and welfare — that is, for business uses. This presents the question which, as we have previously pointed out, we deem to be controlling of the issue here before the court: Under these facts and circumstances, was the refusal of the Board of Zoning Appeals to issue to Awtry Lowndes a permit an unreasonable and arbitrary interpretation and application of the sections of the zoning ordinance here in issue?

The constitutionality of the sections of the ordinance here involved is not attacked, nor is it now open to attack in this court, because the Supreme Court of Georgia by a full bench decided in McCord v. Ed Bond Condon Co., 175 Ga. 667 (165 S.E. 590, 86 A.L.R. 703), that the sections were constitutional and were a valid delegation of authority to the Board of Zoning Appeals. It was also decided that the ordinance, as there applied in granting to a mortuary a permit to operate its business in a residential area, was not unreasonable and arbitrary, because it was recognized that the mortuary was not a nuisance per se, and it was a question of fact for the determination of the Board of Zoning Appeals whether or not it would be a nuisance in the contemplated location.

Under the facts of that case, it was determined that the grant of the permit by the board was in effect to permit a "variance" in the exercise of its discretion under the appropriate tests set up for such exercise of discretion, and the court held that the board had not abused its power. There the board awarded a "variance" to conduct a business (an undertaking business), which is of a lower classification, in a residential district, which is of a higher classification, designated for residential purposes by the appropriate municipal authorities under their authority to zone for the public safety, health, convenience, and welfare. But in this case the undertaking establishment is seeking to obtain a permit to remove its business to a location which has been zoned for business purposes by the appropriate municipal authorities under their authority to zone for the public safety, health, convenience, and welfare. The right to work and make a living by exercising a lawful business in a lawful manner is "fundamental, natural, inherent, and is one of the most sacred and valuable rights of a citizen" (DeBerry v. LaGrange, supra, p. 78); and it may be abridged to the extent, and only to the extent, that is necessary reasonably to insure the public peace, safety, health, and like words of the police power. Where then can this right to operate such business in a lawful manner be exercised if it may not be exercised in a zone which, in the interest of public safety, health, convenience, and welfare, has been designated for business, when it is established that such location will substantially serve the public convenience and welfare?

"``Everyone has the right to use his property as he sees fit, provided that in so doing he does not invade the rights of others unreasonably, judged by the ordinary standards of life and according to the notions of reasonable men. The right to use one's property as he pleases implies a like right in every other person; and it is qualified by the doctrine that the use in the first instance must be a reasonable one. The maxim is sic utere tuo ut alienum non laedas . . . That the business itself is offensive to others, or that property in the neighborhood of such business is necessarily adversely affected thereby, or that persons of fastidious taste would prefer its removal, is not sufficient.'" Blackman Health Resort v. Atlanta, supra, p. 514. This right so to use one's property is of course subject to the power of municipalities to pass and enforce zoning and planning laws for the public safety, health, convenience, and welfare.

"Courts interpret the term ``public welfare' with some strictness. It does not include mere expediency, whim, caprice, sentimental objects, or purely aesthetic purposes, nor usually mere convenience. So far as the courts have given utterances expressive of their attitude on these matters it is an open question to what extent ``public welfare,' apart from a recognized basis justifying the exercise of the police power, would embrace the character of the district, its peculiar suitability for particular uses, the conservation of property values and the direction of building development. But in any event it is, nevertheless, true that there must be an essential public need for the exercise of the police power to justify its use. . . In recent times there is a disposition greater than ever before to use the police power to secure objects strongly desired by the public or an aggressive minority thereof. This attitude of mind restricts personal liberty and property rights and assumes that a public desire, when strong and persistent is the equivalent of a real, vital and compelling public need. There is great danger involved in overlooking the constitutional guaranties and neglecting to give them full force and effect as designed." (Italics ours.) 3 McQuillin. supra, 504, § 1048.

The meaning and effect of the words, "substantially and permanently injure the appropriate use of the neighboring property," in the second test which is imposed upon the exercise of the discretion of the board in granting a permit to an undertaking establishment, must thus be construed to mean the "appropriate use of the neighboring property as established by the proper municipal authorities in the exercise of their power to zone for the public welfare," etc. It cannot validly be construed to mean "the appropriate use to which an individual neighboring owner puts, or intends to put, his property."

It seems to us that, if the ordinance, as was the apparent interpretation of the board under the record here, seeks to authorize the board in its discretion to refuse to permit the exercise of such lawful business in an area zoned for business of a like or similar nature, unless it appears that it will substantially and permanently injure the appropriate use for which the neighboring property is zoned, and thus to discriminate between this and other businesses without public need, it would be such an unreasonable and arbitrary application of the police power as would render these sections of the ordinance invalid, since this business is permitted to be located somewhere in the city, but no zone is designated in which it may be conducted as a matter of right. The ordinance guarantees to the owners of other lawful businesses a permit to exercise their right to conduct their calling in the appropriate zone. So far as the ordinance requires them to restrict their activities to the appropriate zone and to obtain a special permit to locate in any other than the designated zone, and so far as it requires another business, which is recognized to be of unusual characteristics to locate only where it will substantially serve the public convenience and welfare and where it will not substantially and permanently injure the appropriate use for which the neighboring property is zoned, it is a valid exercise of the police power for the public safety, health, welfare, and convenience. But when it is so interpreted and applied as to permit the refusal to another business — though recognized to be of exceptional characteristics — the like exercise of its right in a district zoned for business, when it is uncontested that such location will substantially serve the public convenience and welfare, when it is not shown that it would substantially and permanently injure the appropriate use for which the property has been designated in the interest of the public safety, health, welfare, and convenience, and when the only objection is that it will injure the use of one tract of neighboring property for a purpose which is itself a non-business use, the sections of the ordinance here in issue (when so interpreted and applied under these facts here appearing) become unreasonable, arbitrary, and discriminatory.

The Shrine purchased their property in a business zone, presumably knowing that it was a business zone and knowing that a business, as a matter of right, could locate next to their property. It must be held to know that every owner of property has the right to use his property reasonably in the appropriatezone; for to refuse such right when such use is not a nuisance, not in the exercise of the power of regulation for the public safety, health, welfare, and convenience, but at the instance of a single adjoining property owner, is manifestly unreasonable and arbitrary. The undertaking business is lawful, and, since no zone is designated for it, it must be held to have an equal right with other business to locate in an area appropriately zoned, where it is uncontradicted that such location will substantially serve the public convenience and welfare, and where it is not shown that it would substantially and permanently injure the appropriate use for which the property has been designated by the zoning officials.

We therefore think that the action of the Board of Zoning Appeals in construing and applying the sections of the ordinance here involved, so as to authorize themselves under the facts presented in the record of this case to refuse Awtry Lowndes a permit to operate their business in a zone devoted to business uses, was unreasonable, arbitrary, and discriminatory; and we hold that the judgment of the superior court, overruling the writ of certiorari, was erroneous.

Judgment reversed. Gardner and Townsend, JJ., concur.