Kirkpatrick v. Candler

The allegations of the petition, attacking sections 8, 9, 10, and 17, of the act approved March 9, 1943 (Ga. L. 1943, p. 930), as being violative of stated provisions of the State and Federal Constitutions, and seeking to enjoin the Commissioner of Roads and Revenues of DeKalb County from rezoning as an apartment district, land that had previously been zoned only for residences and farming, failed to set forth a cause of action, and the trial court did not err in sustaining the defendants general grounds of demurrer.

No. 16608. MAY 12, 1949. REHEARING DENIED JUNE 16, 1949. On April 6, 1948, Harold B. Kirkpatrick, Mrs. R. L. Stephens, and Ray Durden, as property owners and taxpayers, filed in DeKalb Superior Court, against G. Scott Candler as Commissioner of Roads and Revenues of DeKalb County, Fred B. Wilson, The Oglethorpe Company, and DeKalb County, a petition, which as twice amended alleged substantially the following: Petitioners are the owners of approximately 200 acres of land fronting on the westerly side of Ashford Park-Dunwoody Road in DeKalb County; and within the past 8 years have constructed at considerable expense their several dwellings and have established their homes. For several years described realty, consisting of approximately 500 acres, together with petitioners' property, has been and is zoned only for residences and farming; and all other uses, including any kind of apartment houses or apartment business, are prohibited. Said lands had already been zoned for residence and farming only by an order passed by the Commissioner of Roads and Revenues on June 25, 1946, and by authority of the act approved March 9, 1943 (Ga. L. 1943, p. 930), under the provision of the act designated as the "Comprehensive Plan." Petitioners' property and the lands in question have never been used for any kind of business and have never been used for purposes other than for family residences, homes, and farming; and by such use for many years all of said lands have become districted and zoned for residences and farming to the exclusion of use for all kinds of business and apartment houses. Petitioners' property is directly across the Ashford Park-Dunwoody Road from the lands in question, and the construction of apartment houses will reduce the market value thereof at least 25 percent, and will also reduce the desirability of petitioners' properties as private residences. Such construction will create both a public and private nuisance, working special hurt, inconvenience, and damage to petitioners, because the permit complained of authorizes the erection of 500 units of apartment houses with about 2500 rooms and for 500 families. There are no sewer facilities to serve said families, comprising approximately 1500 persons, and there is no provision for collecting garbage in the community. There are no school accommodations for children therein, the schools of the community being now filled to capacity, and the above conditions will render the proposed housing unsanitary, unhealthful, and without educational facilities, all contrary to the public good, and especially hurtful to petitioners since the damage to them will be irreparable and will render them without any adequate remedy at law. On December 29, 1947, according to the records of the Planning Commission of DeKalb County, The Oglethorpe Company filed an application to have the property in question rezoned from use as residence and farming to that of commercial and for use as apartment houses. The Oglethorpe Company did not exist at said time, but was chartered under the laws of this State at the time of the filing of the present suit. The application to have the property rezoned was filed under the act approved on March 9, 1943, supra, and was set for hearing before the Planning Commission appointed thereunder by the Commissioner of Roads and Revenues. The Oglethorpe Company was not the owner of any of the property in question at the time the application to rezone was filed. The application was, under the provisions of the act approved March 24, 1939 (Ga. L. 1939, p. 406), invalid, as it did not contain nor was it accompanied by a written petition signed by the owners of 51 percent of the real property within the area covered by the application. The act of March 9, 1943, did not attempt to repeal the former act of March 24, 1939, providing for a petition to be signed by 51 percent of the property owners. Section 21 of the act of 1943, providing that the Planning Commission is to administer the act of 1939, was not complied with in the particular stated above by any applicants to zone, nor was it administered by the Planning Commission. Thereafter, the Commissioner of Roads and Revenues (acting also in behalf of DeKalb County), did, on March 26, 1948, upon the void application of The Oglethorpe Company, and the void recommendation of the Planning Commission, issue an order and rezone the land in question as "an apartment district," and did thereby amend and change the zoning thereof contrary to the act of 1939. The Planning Commission and the Commissioner of Roads and Revenues by their acts recognized that the lands were zoned for residence and farming use only, and that the use of same for any and all kinds of business and for apartment houses was prohibited therefrom, and that use for homes and farms had been established by law and by use. The defendants, other than DeKalb County, under the void acts on the part of the Planning Commission and of the Commissioner of Roads and Revenues, are preparing to construct upon the lands in question, and are actually constructing apartment buildings thereon. Sections 8, 9, 10, and 17, of the act of March 9, 1943, are violative of stated provisions of the State and Federal Constitutions, and for reasons stated the rezoning of said land for use as apartment houses was without authority of law and void. The prayers were: (a) that sections 8, 9, 10, and 17, of the act of 1943, be declared unconstitutional; (b) that the application to rezone and the action taken thereon by the county authorities be decreed to be void as contrary to law; (c) that the defendants be permanently enjoined from erecting apartments or using the lands in question for other than residence or farming; (d) that any construction on the realty in question be enjoined as a nuisance; (e) that process issue.

Demurrers on general and special grounds were interposed to the original petition and renewed to the petition as amended. Certain general grounds of demurrer were sustained, and the exception is to that judgment.

Other facts will be stated in the opinion. The defendants demurred on the grounds among others, first, that the petition as amended fails to set forth a legal or valid cause of action; and second, that the allegations of the petition are insufficient to entitle the petitioners to the relief sought. The trial court sustained the above grounds of demurrer and dismissed the action.

The act approved March 9, 1943 (Ga. L. 1943, p. 930), is entitled: "An act to create and establish for DeKalb County, a County Planning Commission and Board of Zoning Appeals, and to authorize the Commissioner of Roads and Revenues of DeKalb County, Georgia, to create a County Planning Commission; to authorize said County Planning Commission to exercise the authority conferred upon them by law with reference to zoning property in said county; to provide that said Planning Commission may recommend to the Commissioner of Roads and Revenues a comprehensive plan of zoning; to provide that said Commissioner of Roads and Revenues may adopt the comprehensive zoning plan; said County Authority may provide a method and manner of carrying out the terms of this act; to provide that said County Authority may pass rules and regulations governing the zoning of property in DeKalb County; to provide a method of selecting the personnel to the County Planning Commission and to the Board of Zoning Appeals; to provide authority for said Commissioner of Roads and Revenues for DeKalb County to appropriate funds to provide for the personnel in carrying out the terms of this act; to provide that all laws dealing with zoning and regulating or restricting the use of property and with development of subdivisions now in force shall remain in full force and effect until such time as such comprehensive plan for zoning is adopted, and for other purposes."

Sections 8, 9, 10, and 17, of the above act, which purport to grant unto the Commissioner of Roads and Revenues or the Planning Commission therein created, the right to amend, modify, and rezone property, are attacked as being violative of article 3, section 7, paragraph 8 (Code, § 2-1808) of the State Constitution of 1877, which was then in force, providing that no law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof.

The title in question shows that the Commissioner of Roads and Revenues is authorized "to create a county planning commission"; to authorize said county planning commission to exercise the authority conferred upon them by law with reference to zoning property in said county; to provide that said Planning Commission may recommend to the Commissioner of Roads and Revenues a comprehensive plan of zoning; to provide that said Commissioner of Roads and Revenues may adopt the comprehensive zoning plan; that said county authority may provide a method and manner carrying out the terms of the act; to provide that the county authority may pass rules and regulations governing the zoning of property in said county. The provisions contained in sections 8, 9, 10, and 17, of the act of 1943 are germane to the general purpose of the act as indicated in the title, and are not unconstitutional for the reason assigned. Welborne v. State,114 Ga. 793, 816 (40 S.E. 857); Davis v. Warde, 155 Ga. 748,771 (118 S.E. 378); Wright v. Fulton County, 169 Ga. 354 (2a) (150 S.E. 262); Williamson v. Housing Authority ofAugusta, 186 Ga. 673, 679 (199 S.E. 43); Walker ElectricalCo. v. Walton, 203 Ga. 246, 252 (46 S.E.2d 184).

Sections 8, 9, 10, and 17, of the act of 1943 are also attacked on the ground that they were without any authority of law, in that — while the amendment to the Constitution of 1877, as contained in article 3, section 7, paragraph 26 (Code, Ann., § 2-1826), provided that "The General Assembly of the State shall have the authority to grant to the governing authorities of any city or county in this State having a population of 1000 or more, according to the Federal census of 1930 or any future census, the authority to pass zoning and planning laws whereby such cities or counties may be zoned or districted for various uses and other or different uses prohibited therein, and to regulate the use for which said zones or districts may be set apart and to regulate the plans for development and improvement of real estate therein" — nevertheless, said amendment made no provision for the General Assembly to grant to the county authority the right to "rezone" property which had already been zoned or to change or modify any zoning of any property. There is no merit in this contention, for the reason that the authority of the General Assembly to grant to the governing authorities of any county the authority to pass zoning and planning laws whereby such counties may be zoned or districted for various uses and other or different uses prohibited therein, and to regulate the use for which said zones or districts may be set apart and to regulate the plans for development and improvement of real estate therein, necessarily includes the authority of the General Assembly to grant to the county authorities the right to rezone property which had already been zoned.

Section 10 of the act of 1943 provides: "The Commissioner of Roads and Revenues of DeKalb County, Georgia, may, in the interest of public health, safety, order, convenience, comfort, property, or the general welfare of the community, adopt by resolution a plan or plans for the districting and/or zoning of the territory and land in DeKalb County, Georgia (outside of incorporated areas), for the purpose of regulating the location of businesses, trades, industries, residences, apartment houses, hotels, dwellings, outhouses, or any other uses of property or land, or for the purpose of regulating the height, kind and dimensions of buildings or other structures, including the type of material to be used in construction and regulations regarding the plumbing, heating and electrical installations; also he may prescribe for the same purposes the area or dimensions of the lots and the yards used in connection with any building or structures to be erected and occupied for any purpose set out in this section; or he may in his discretion regulate the alignment of buildings and structures and prescribe their distance from the street along the front thereof. The zoning regulations made may be based on any one or more of the purposes above described. The county may be divided into such number of zones or districts and such districts may be of such shape and area as the county authority may deem best suited to attain the purpose of zoning regulations. Such county authority may go into congested areas and prescribe zoning . . . and he is to be the judge of where such congested areas may be and the extent and limitations thereof. In the determination and establishment of districts and regulations, classifications may be based on the nature or character of the trade, industry, profession or other activity conducted or to be conducted upon the premises or land, the number of persons, families or other group units to reside in or use such buildings, the public, quasi-public, or private nature of the use of the premises or land, or upon any other basis or bases relevant to the promotion of the public health, safety, order, morals, convenience, prosperity, or welfare of the community."

This section is attacked as violating article 3, section 7, paragraph 26 (Code, Ann., § 2-1826, Code, Ann., § 2-1923) of the Constitution, providing that the General Assembly shall have the authority to grant to the governing authorities of counties the authority to pass zoning and planning laws, in that the provisions of section 10 are unreasonable, arbitrary, capricious, and dictatorial, and the powers therein granted are without any suitable standard by which the county authority shall be governed. The act of the legislature under review provides that any change or amendment or modification of the zoning ordinance must first receive the consideration of the Planning Commission, which shall set a time and place for hearing and give notice thereof to the public as required by the act, and submit their recommendations to the Commissioner of Roads and Revenues, who shall likewise provide for a hearing and notice before making a decision in said case. The general purpose of the act is set forth in section 10, which shows that the Commissioner of Roads and Revenues shall be guided by the interest of public health, safety, order, convenience, comfort, property, and general welfare of the community in passing on any question over which he is given authority by said act. The enactment of zoning and planning laws is an essential factor in the orderly growth of any county or community. Decisions with respect to zones and districts and uses therein must be vested finally in some authority. The present act makes ample provision for notice and hearing and requires consideration by a Planning Commission and vests the final authority in a duly elected Commissioner of Roads and Revenues. The instant attack is based upon the contention that the powers granted by the legislature are unconstitutional because they are unreasonable and arbitrary. The General Assembly has more extensive powers than a city council. Mayor c. ofSavannah v. Cooper, 131 Ga. 670, 676 (63 S.E. 138);Atlantic Postal Telegraph-Cable Co. v. Mayor c. of Savannah,133 Ga. 66, 71 (65 S.E. 184). However, in Clein v.Atlanta, 164 Ga. 529 (139 S.E. 46, 53 A.L.R. 933), this court, in passing upon whether a city ordinance was unreasonable, said on p. 535: "Lawful trades or businesses are subject to regulation under the police power vested in the City of Atlanta. What such regulations shall be, and to what particular trade, business, or occupation this will apply, are questions for the city to determine. Their determination comes within the proper exercise of its police power; and unless the regulations are so utterly unreasonable and extravagant that the property and personal rights of the 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 police power of the city to pass. Shurman v.Atlanta, 148 Ga. 1, 11 (95 S.E. 698)." Applying the above principle, the provisions of the act of 1943 are not so arbitrary and unreasonable as to authorize this court to declare section 10 to be invalid.

Section 10 of the act of 1943 is also attacked as being violative of the due-process clauses contained in the fourteenth amendment (Code, § 1-815) of the Federal Constitution, and article 1, section 1, paragraph 3 (Code, § 2-103) of the State Constitution, in that there is no provision in the act for any appeal from any ruling by the Commissioner of Roads and Revenues. Section 14 of the act under review provides: "The Commissioner of Roads and Revenues of DeKalb County is authorized to create a Board of Zoning Appeals which said Board shall hear and decide appeals from, and review any order, requirement, or determination made by, the inspector of buildings in the enforcement of zoning regulations or made by any other official of the county to whom the enforcement of these regulations may be delegated." Under a proper construction of this section, the Commissioner of Roads and Revenues would be included in the language, "made by any other official of the county to whom the enforcement of these regulations may be delegated"; and therefore the Board of Zoning Appeals would be a proper tribunal to hear and decide appeals from, and review any order, requirement, or determination that was made by the Commissioner of Roads and Revenues in carrying out the provisions of section 10 of the act of 1943. The petitioners do not allege that a Board of Zoning Appeals had not been created as provided for in the act, and section 16 provides: "Every decision of the Board of Zoning Appeals in the administration of the authority hereinabove set out and in the administration of zoning regulations of said county shall be subject to writ of certiorari; issued from the superior court upon the same terms as such writs are issued in any case."

Another contention is, that the act of 1943 did not repeal the former act approved March 24, 1939 (Ga. L. 1939, p. 406), providing that no zone or district may be created without the consent given by written petition signed by the owners of 51 percent of the real property within the area zoned or districted; and that the above requirement was not complied with in the present attempt to rezone the realty for apartment use. The act of 1939, in addition to the above requirement, provided that "The Board of County Commissioners of Roads and Revenues, or the Ordinary or County Commissioner, as the case may be, having charge of the fiscal affairs of any county or counties having a population of not less than seventy thousand and not more than seventy-five thousand inhabitants, according to the 1930 Federal census, or any county or counties having a population within said limits according to any future Federal census, are hereby authorized to pass zoning and planning laws whereby such county or counties may be zoned or districted for various uses and other or different uses provided, . . and regulating the use for which said zones or districts may be set apart and regulating the plans for development and improvements of real estate therein." Section 21 of the act approved March 9, 1943, declares in part "that until the adoption of the comprehensive zoning plan by the authority of DeKalb County, which is provided for in this act, . . the present laws of force and effect in said county concerning zoning and concerning the subdivision of property and the platting thereof remain in force and effect and until said time said laws are in no way amended, modified or repealed." Under this section, the provision of the act of 1939 requiring the consent of 51 percent of the landowners was not of force and effect in DeKalb County after the adoption of the Comprehensive Zoning Plan as provided for in the act of 1943.

The allegations of the petition as amended failed to state a cause of action for the relief sought, and the trial court did not err in sustaining the defendants' general grounds of demurrer.

Judgment affirmed. All the Justices concur, except Wyatt, J.,who dissents, and Duckworth, C. J., disqualified.