Butler v. City of Dublin , 191 Ga. 551 ( 1941 )

Rulings on demurrer to petition for injunction against enforcement by municipality, under penal process, of prohibitory terms of zoning ordinance, preventing erection of building for business purpose at designated location.

No. 13447. FEBRUARY 12, 1941. The averments of the petition relative to the question whether the city or its officers were proceeding arbitrarily or unreasonably as to the petitioner's property were as follows: that she was the owner of a described lot of land in the city, fronting 107 feet on one street, 166 feet on another street, the other two sides being 75 feet and 141 feet; that the lot was unimproved, well adaptable and especially valuable for business and commercial purposes because of its proximity to railroads and business houses, and if petitioner is restricted to its use for only residential purposes, "it will render said property practically valueless for the purposes for which she purchased it and for which it is best suited;" that the property is vacant, has no earning capacity, and petitioner is sustaining the expense of taxes and loss of interest; that she desires to construct a modern store building on the property, to carry on a general merchandise business such as is carried on by all first-class establishments of that character, with plans and specifications to conform to the building ordinance of the city; that for this purpose she applied, in October, 1939, for a building permit, and the building committee of the city, after first granting it, reported unfavorably to the city council, upon inspection and consideration of the property and the plans submitted, and she was refused from that time to the date of the petition "the privilege and right to construct and build in accordance with her plans and in accordance with the authority granted by the building committee," before the unfavorable action stated; that in 1940 she renewed her application to the city and its authorities for building permits with the same type of improvements and under the same conditions as were involved in the first application; that this application was referred to the three zoning commissioners of the city, two of whom after investigation and consideration of the property signed a report recommending that a permit be granted, but for some unknown reason the third commissioner did not sign the report or file any protest; that "when said zone commissioners' report or action was reported to the full council of the city . . for the purpose of review and ratification, the said council by a majority vote unlawfully and arbitrarily refused to grant said permit and ignored the recommendation and approval" of said zoning commissioners; that in 1940, "long after said council of the city of Dublin had arbitrarily and unlawfully refused your petitioner the right and use of her property, thereby depriving her of her legal and constitutional rights to build upon and use her property for lawful purposes for her enjoyment, benefit, and welfare, which are acceded and recognized as fundamental rights that are older than the constitution or any laws promulgated thereunder, she proceeded" to build upon her property, acting through her husband and agent; that all the acts and doings of the city, its agents, and officers, "in the interference with her rights in the use of her property were unlawful, illegal, arbitrary, and unconstitutional," and especially under art. 1, sec. 1, par. 2 (Code, § 2-102), providing for the protection of person and property, and under art. 1, sec. 1, par. 3 (Code, § 2-103), providing that no person be deprived of property except by due process of law; that "if your petitioner is deprived of use of her lawful property for the purposes herein set forth, she will sustain irreparable loss and damage tantamount to confiscation;" and that "the use to which petitioner is seeking to put her property will not be injurious to any citizen of the city of Dublin, their health, or property." By amendment the petitioner further alleged that the city "was and is without legal authority to enforce what is known as the zoning ordinance, in so far as said ordinance seeks to abridge and prohibit plaintiff from using her own property for whatever purposes she may see fit to use same, so long as her use of her said property is not injurious or detrimental to the health and welfare of adjacent property owners and the public in general; and especially when [she] offers, which she does at this time and has all the time, to erect such buildings and improvements on her property as will meet the approval of the building inspector of the city . . with reference to sanitation, dust, smoke, or unusual noises; and [she] avers that she is willing to be supervised in the erection and improvement of her property by the proper building inspector, with reference to health, sanitation, etc., as provided by the municipal laws of the city." 1. "Equity will take no part in the administration of the criminal law. It will neither aid criminal courts in the exercise of their jurisdiction, nor will it restrain or obstruct them." Code, § 55-102. In order to fall within the recognized exception to this rule, "where property rights are involved and one's business and property may be subjected to irreparable damage unless there is speedily afforded relief," the relief must be such as "only equity can give."Southeastern Greyhound Lines Inc. v. Atlanta, 177 Ga. 181,184 (170 S.E. 43); Spur Distributing Co. v. Americus,190 Ga. 842 (11 S.E.2d 30), and cit. See Morrow v. Atlanta,162 Ga. 228 (4) (133 S.E. 345); Great Atlantic Pacific TeaCo. v. Columbus, 189 Ga. 458, 464 (6 S.E.2d 320); Coker v. Atlanta, 186 Ga. 473 (2) (198 S.E. 74); Mather BrothersInc. v. Dawson, 188 Ga. 450 (4 S.E.2d 165).

2. Where, as in this case, an equitable petition alleges that petitioner's agent had been summoned to appear before a city recorder to answer a charge of a "violation of the building ordinances of said city," and the summons as set forth in the petition merely stated that such agent was accused of "violating building ordinance," and nowhere is it alleged that this particular charge related to any infringement of zoning laws, then and under such circumstances, irrespective of whether the petitioner would be entitled to proceed in equity in order to test the validity of the zoning laws of the city, or would be relegated to making his defense in the recorder's court, the mere alleged arrest of petitioner's agent under such a charge would not authorize an equitable proceeding in order to attack the zoning laws.

(a) But where the petition as amended goes further and sets forth that petitioner has been refused permission to construct on her property a building, although properly approved as to structural plans and specifications, solely by virtue of the application of a provision in the zoning ordinance, and that the city authorities had failed and refused to provide a board of zoning appeals as required by the zoning ordinance, with the result that the petitioner's remedies at law were inadequate, then and under such alleged circumstances, irrespective of what might be the general rule as to whether the petitioner's agent would be required to defend himself before the recorder's court, or whether the petitioner should resort to the legal remedy of mandamus to require the city authorities to issue a building permit, the petitioner should be permitted under the allegations mentioned to resort to equity to enjoin the alleged acts of the city in interfering with the alleged property rights.

(b) Under these allegations, a basis for equitable relief appears, even though the petition does not attack the validity of the zoning ordinance by reason of the failure of the city to provide a board of zoning appeals, as required by the ordinance; but only sets up such omission as constituting a reason for equitable relief.

(c) In weighing the petition on demurrer, the right to maintain the petition in equity under such alleged circumstances, in order to attack the application of the zoning ordinance to this particular property as being arbitrary, oppressive, and unreasonable, is not impaired by reason of any facts set forth in the city's answer with respect to the alleged repeal of the provision in the zoning ordinance requiring a board of zoning appeals, and substituting therefor the mayor and board of aldermen, from whose decisions the right of certiorari is provided by statute Code, §§ 19-101, 19-203. The case being on demurrer, it must be determined solely on the allegations of the petition.

3. There is no merit in the attack made by the first amendment to the petition, setting forth that the city's zoning ordinance required the zoning commission, in adopting regulations, to submit them to the mayor and aldermen before they became effective; and that the rulings never became effective against petitioner, because they were not adopted by the city council until after her agent had been charged with the violation of a city ordinance. The original petition alleged, without modification by amendment, that "after having her [plans and specifications] approved . . by a majority of the said zone commissioners, . . when said zone commissioners' report or action was reported to the full council of the City of Dublin for the purpose of review and ratification, the said council by a majority vote unlawfully and arbitrarily refused to grant said permit and ignored the recommendation and approval of its duly authorized zoning commissioners." Under the rule that contradictory or ambiguous pleadings must be construed most strongly against the pleader (Bowman v. Chapman, 179 Ga. 49, 175 S.E. 241; Doyal v. Russell, 183 Ga. 518 (3), 189 S.E. 32), there is no merit in the contention that the city council failed to act, since it thus appears that they did act, but acted adversely to the petitioner.

4. It is "one of the fundamental rules of pleading that facts and not legal conclusions must be alleged," and that mere general conclusions without specific facts on which they are based will constitute no cause of action. Field v. Brantley, 139 Ga. 437 (3), 441 (77 S.E. 559); Jones v. Ezell, 134 Ga. 553 (5), 559 (68 S.E. 303); Furr v. Burns, 124 Ga. 742 (5) (53 S.E. 201). By section 20 of the act of March 31, 1937 (Ga. L. 1937, p. 1783), the legislature authorized the mayor and board of aldermen of Dublin to pass zoning ordinances and regulations. The instant petition by a property owner for an injunction against the city, in so far as it sought to attack the application of the zoning laws to the particular property, did not state a cause of action good against the general demurrer, since it failed to show by averments of fact, supporting mere conclusions, that the zoning commissioners or other officers of the city were proceeding arbitrarily or unreasonably with respect to such property in connection with the general plan of real-estate zoning, development, and improvement in precluding the use of the lot for business purposes. See Howden v. Savannah, 172 Ga. 833,844 (159 S.E. 401), and cit.; Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (47 Sup. Ct. 114, 71 L. ed. 303, 54 A.L.R. 106, and notes); Zahn v. Board of Public Works, 274 U.S. 325 (47 Sup. Ct. 594, 71 L. ed. 1074).

Judgment affirmed. All the Justices concur.

ATKINSON, P. J., concurs in the result, but not in all that is said in the opinion.