Barton v. Atkinson
| Decision Date | 09 March 1972 |
| Docket Number | Nos. 26863,26864,s. 26863 |
| Citation | 187 S.E.2d 835,228 Ga. 733 |
| Parties | Charles BARTON et al. v. Judy E. ATKINSON et al. Judy E. ATKINSON et al. v. Charlie BROWN et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. (a) Laws should be construed so as to give effect to the intention of the legislature. They should not be construed so as to arrive at absurd or unreasonable results. So, whether a statute which directs the doing of a particular act or thing as a part of a procedure shall be construed as mandatory or merely directory thereof depends on whether the thing is of the essence of the over-all procedure, and whether the failure of performance of the thing in question will result in injury or prejudice to the substantial rights of interested persons. Applying these principles to the Act approved April 10, 1971 (Ga.L.1971, p. 3662) it does not render the reading of the reports respecting proposed rezoning therein required to be made by the board of education, the public works department and the public health department to the zoning authorities of the various cities and counties coming within its provisions at each public hearing on such rezoning essential to the validity of the action taken with respect thereto. The essence of the law is that the reports be filed and the information embodied therein be imparted to the zoning authority. The reading of the reports at each public hearing is not of the essence.
(b) The failure of the Board of Commissioners of Fulton County to read such reports at the public hearing held on July 7, 1971 on the applications to rezone involved in this case was not such a defect in procedure as would render the ordinances rezoning the property void, and the trial court erred in declaring the ordinances void on account of such failure to read the reports.
2. The declaration and covenant of restrictions executed by the defendant Barton, upon which the plaintiffs relied was by its terms executed exclusively for the benefit of owners and lessees, and the heirs, assignees and successors in interest of such owners and lessees, of the property described in the covenant and to which it related. The plaintiffs who are adjoining or neighboring property owners and not owners or lessees or successors thereof of any of the property to which the covenant related were not among those intended to be benefitted by the covenant, and they, therefore, had no standing to invoke that instrument in this proceeding in aid of their efforts to overturn the rezoning of the property covered by such covenant.
3. Zoning is a legislative function of the Fulton County Commission. One commission cannot limit succeeding commissions in their exercise of that power by the device of entering into a contract with a landowner purporting to impose such a limitation. The covenant in question in this case provides a procedure by which it may be altered or amended. The action of the County Commission of Fulton County in granting the application of the covenantor to change the zoning of the property subject to such covenant was, properly construed, an agreement by the owners to change the terms of the covenant and approval by the county commission which was all that was required by the terms of the covenant to effect such change.
4. The failure of the county to comply strictly with requirements of the zoning ordinances respecting service of notice of a proposed rezoning on neighboring landowners was waived.
5. The County Commission of Fulton County did not abuse its discretion in rezoning the parcels of property involved in this case.
Jones, Bird & Howell, Earle B. May, Jr., Eugene T. Branch, Atlanta, for Charles Barton and others in 26863.
Michael Padnos, Webb, Parker, Young & Ferguson, Guy Parker, Atlanta, for Judy E. Atkinson and others in 26863.
Michael Padnos, Atlanta, for Judy E. Atkinson and others in 26864.
Jones, Bird & Howell, Earle B. May, Jr., Webb, Parker, Young & Ferguson, Guy Parker, Atlanta, for Charlie Brown and others in 26864.
Likey & Bowden, John A. Nix, Atlanta, amicus curiae.
The appeal here is from the grant of an injunction restraining the defendant-owners from taking any action to implement zoning ordinances enacted by the Defendant Commissioners of Fulton County and from performing any construction, grading, tree cutting, or any similar or related activity with respect to several described tracts of land as purportedly authorized by said ordinances. Involved are several tracts of land which were separately treated by the commissioners in the ordinances passed on July 16, 1971. The plaintiffs complain because the ordinances rezoned all of the tracts involved from a higher to a lower use, in general, permitting more intensive use of the land. The trial court, in the order and judgment appealed from, held the ordinances invalid on the basis of one specific attack made by the plaintiffs, and expressly rejected other grounds of attack. The owners of the property sought to be rezoned appealed, and the adjoining landowners filed a cross-appeal complaining of those portions of the final judgment which ruled adversely to their other contentions respecting the validity of the zoning ordinances. The specific nature of the contentions will be dealt with more fully in the opinion.
The plaintiffs in the trial court are residents of Fulton County and owners of property loacted within 300 feet of the property which is the subject of the zoning ordinances under attack. The defendants named in the complaint are the Commissioners of Fulton County, the Director of the Department of Inspections and Licenses of Fulton County, all sued in their official and individual capacities, Charles Barton, Nautilus North River Realty Inc., and George H. Johnson, Powers Ferry Land Company, and F. H. Gilgore, Jr., the latter three d/b/a North River Partnership. The property involved is adjacent to the intersection of Northside Drive and Interstate Highway 285 in North Fulton County. Extensive tracts comprising in excess of 100 acres of land, and lying to the north and south of Interstate Highway 285 and to the west of Northside Drive abut the Chattahoochee River. The evidence in the record before us shows that this land, in its natural state, is extremely rugged, being composed of steep ridges and deep valleys with differences in elevation approaching 300 feet. In 1968, Barton and his associates sought to have this property rezoned for various uses, including apartments of high and medium density, offices, institutional and commercial uses. The application which was then filed touched off a storm of protests and organized opposition by residents in the area, including the plaintiffs here, which ultimately resulted in substantial modification of the proposal and the grant of the application only after its modification so as to permit only lower density uses. Contemporaneously with the 1968 rezoning, and as a condition precedent thereto, the Commissioners of Fulton County required Barton to execute a document denominated a 'Declaration and Covenant of Restrictions for North River Development.' The content of this instrument, insofar as is material and necessary to an understanding of the rulings made will be set out in Division 2 of the opinion.
It appears that it was only after the county commissioners determined that they would approve the rezoning of the property in question subject to the restrictions embodied in this instrument that the residents and owners of property in the area desisted from their opposition to the rezoning in 1968. Plaintiffs contend that the 1968 zoning and the restrictive covenant excluded apartments from the area lying to the north of Interstate Highway 285, and that the rezoning here has reintroduced apartments into that area contrary to the 1968 zoning and restrictive covenant, and that the reclassification of the land prior to January 1, 1988 (the date to which the covenant is declared to run) was a violation of the covenant and, therefore, void. Such other contentions and the facts necessary to a clear understanding of the rulings made will be stated in the opinion.
1. By the Act approved April 10, 1971 (Ga.L.1971, p. 3662) the legislature changed the zoning procedures in counties having a population of 500,000 or more, persons, of which Fulton County is one, so as to require the director of the planning departments of such counties to furnish a copy of each application for rezoning to the public works department, the department of public health and the board of education of such counties. The Act provides: . The trial judge found as a fact that the reports required to be rendered by the Fulton County Board of Education, the Fulton County Public Works Department and the Fulton County Department of Public Health under the provisions of the above quoted law were submitted by each of said departments with respect to each of the parcels of property sought to be rezoned. He also found that the reports of these departments with respect to each parcel of land sought to be rezoned were read by the zoning administrator of Fulton County, Georgia, at the public hearing held before the Atlanta-Fulton County Joint Planning Board on June 30, 1971. He further...
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