Merwel Developers, Inc. v. City of Marietta, Board of Adjustments. ( 1959 )

100 Ga. App. 60 (1959) 109 S.E.2d 926

MERWEL DEVELOPERS, INC.,
v.
CITY OF MARIETTA, BOARD OF ADJUSTMENTS.

37737.

Court of Appeals of Georgia.

Decided July 13, 1959. Rehearing Denied July 23, 1959.

Holcomb & Grubbs, for plaintiff in error.

Scott S. Edwards, Jr., contra.

QUILLIAN, Judge.

1. Where, as in this case, application was made for permission to construct an entrance sign over a gateway to a proposed cemetery, and, it is known by the official to whom the application is addressed, that on petition of the applicant previously presented to the city counsel, that body refused to zone the property upon which the proposed sign was to be erected for cemetery purposes, and passed an ordinance prohibiting the use of the premises as a cemetery, there was no error in denying the application for permission to construct the sign.

2. Where, as in this case, a municipal ordinance is passed, so far as the record reveals, with requisite formalities, and is sufficient in form, there is a presumption that the ordinance is legal (Sampson v. City of Thomasville, 17 Ga. App. 541 (1), 87 S. E. 835), the burden is upon him who contends the contrary to be true. Jefferson v. City of Perry, 18 Ga. App. 689 (2) (90 S. E. 365).

3. The Board of Adjusters of the City of Marietta correctly ruled that it was without authority to pass on the validity of an ordinance passed by the city council. Gay v. City of Lyons, 209 Ga. 599, 604 (74 S. E. 2d 839).

4. The judge of the superior court did not err in dismissing the applicant's appeal from the board of adjusters, the application revealing the facts related in the foregoing headnotes.

Judgment affirmed. Nichols, J., concurs. Felton, C.J., concurs in the judgment.