Lacey v. State , 270 Ga. 37 ( 1998 )

507 S.E.2d 441 (1998) 270 Ga. 37

LACEY
v.
The STATE.

No. S98A1343.

Supreme Court of Georgia.

October 5, 1998. Reconsideration Denied October 26, 1998.

Scott L. Ballard, Ballard & Ballard, Fayetteville, for Lee Lacy.

Steven Lamar Harris, Solicitor General, Fayetteville, for the State.

CARLEY, Justice.

A zoning ordinance in Fayette County permits only single-family dwellings in areas which are zoned agricultural-residential. Lee Lacey was charged with violating that ordinance. The trial court overruled general demurrers challenging the constitutionality of the ordinance and, after a jury found Lacey guilty, entered a judgment of conviction and sentence.

1. Only one of Lacey's constitutional challenges on appeal was raised in the trial court prior to the jury's verdict. Constitutional attacks "must be made at the first opportunity, and it is too late to raise such question after a guilty verdict has been returned by the jury." Brackett v. State, 227 Ga. 493(2), 181 S.E.2d 380 (1971). See also Gainey v. State, 232 Ga. 334, 206 S.E.2d 474 (1974). As to those constitutional issues raised in an untimely manner below, Lacey is barred from raising them on appeal. Glean v. State, 268 Ga. 260, 263(2)(b), 486 S.E.2d 172 (1997).

2. Lacey's only timely challenge asserted that the zoning ordinance was a violation of his federal and state constitutional right to the free exercise of religion. Lacey, who is a minister, contends that he was practicing his religion by sharing his home, for a monthly rental, with a family which, due to bankruptcy, was encountering difficulty finding a suitable place to rent.

Generally, churches may not be absolutely excluded from a residential area. Rogers v. Mayor &c. of City of Atlanta, 110 Ga.App. 114, 116(1), 137 S.E.2d 668 (1964). In his capacity as a landlord, however, Lacey did not act on behalf of a church, and the use of his own private residence for rental purposes "is not a use necessarily incidental to that of a church or parochial school...." Association for Educ. Devel. v. Hayward, 533 S.W.2d 579, 587 (Mo.1976). Furthermore, the impermissible use of Lacey's home does not result from his profession as a minister or his religious motivation, but because of the sharing of his home with members of a separate family. See Macon Assn. for Retarded Citizens v. Macon-Bibb County Planning & Zoning Comm., 252 Ga. 484, 487(2), 314 S.E.2d 218 (1984). A claim of religious liberty cannot constitute a defense against enforcement of valid police regulations or penal laws. Coleman v. Griffin, 55 Ga.App. 123, 128, 189 S.E. 427 (1936). That Lacey has a religious motivation does not require a court to declare an ordinance, which is valid as to others, to be invalid as to him. To do so would leave the governing authority with the power to grant zoning variances to one citizen because he is found to have an acceptable religious motivation and to deny a variance to another who is found to have an unacceptable religious motivation or whose religious motivation is determined to be a subterfuge. Association for Educ. Devel. v. Hayward, supra, 533 S.W.2d at 588. Accordingly, we conclude that the zoning ordinance underlying Lacey's conviction does not violate his constitutional right to the free exercise of religion.

Judgment affirmed.

All the Justices concur.