Bell v. Studdard
| Decision Date | 16 March 1965 |
| Docket Number | No. 22841,22841 |
| Citation | 220 Ga. 756,141 S.E.2d 536 |
| Parties | Clifford A. BELL et al. v. R. J. STUDDARD et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The renewal of the general demurrer after each amendment to the petition was sufficient to test the sufficiency of the petition as amended as against the general demurrer.
2. The ordinance providing zoning of certain areas in the city of Sandersville which failed to provide for notice and notice of hearing to owners of property affected thereby contravenes the requirements of the due process clause of the Constitution of Georgia and is therefore unconstitutional and void.
3. Since the zoning ordinance is unconstitutional and void, Ga.Code Ann. 69-835 (Ga.L.1946, pp. 191, 200) providing that the lawful use of a building at the time zoning regulations contrary to such use were adopted may continue with described limitations has no application to the defendant's property.
4a. The petition as amended failed to plead an equitable estoppel against the defendant's raising the question of the constitutionality of the zoning ordinance, because it did not allege that the defendants made any false representation or concealment of fact, or that there was any intent on the part of the defendants that the plaintiffs rely upon their conduct.
b. The defendants would not be estopped to deny the validity of the zoning ordinance because one of them was mayor and the other a member of the city council at the time the area in which their building is located was by amendment added to the zoned area, as mere knowledge of the zoning ordinance would not show fraud or misconduct on their part.
c. A provision in the deed under which the defendants acquired their property that they took the property 'subject to any and all * * * zoning regulations' would not estop them from denying the validity of the ordinance, as estoppel by deed is maintainable only by parties to the deed or their privies, and further, the grantees in the deed would be bound only by valid ordinances.
5. An exception to and an assignment of error in the bill of exceptions to an order of the superior court 'overruling all demurrers of the defendants to plaintiff's petition as thrice amended * * *' is sufficient, and the motion to dismiss the bill of exceptions is denied.
The defendants in error, R. J. Studdard and Mrs. Stella Studdard, hereafter referred to as plaintiffs, residents of the City of Sandersville, Georgia filed an action in the Superior Court of Washington County seeking to permanently emjoin the plaintiffs in error, Clifford A. Bell and Sandersville Builders Supply Company, hereafter referred to as defendants, from converting their property, formerly used for various business purposes, into a curb market to remain open seven days a week and until late hours of the night. The plaintiffs relied upon a zoning ordinance of the City of Sandersville which required that the land of the parties be used exclusively for residential purposes. The defendants filed general demurrers stating among other things that the petition failed to allege grounds for equitable relief because the city ordinance was unconstitutional in that neither it nor Section 68 of Ga.L.1941, pp. 1692, 1730, the pertinent section of the Sandersville City Charter, provided for any hearing or notice of hearing and therefore constituted a denial of due process of the law as provided for by Art. I, Sec. I, Par. II and III of the Constitution of Georgia (Code §§ 2-102, 2-103). The plaintiffs amended their petition to allege that the defendants were estopped from denying the validity of the ordinance upon several grounds which are set out in the opinion. The defendants renewed their general demurrer to the petition as thrice amended. The superior court entered judgment overruling all of the demurrers to the petition as amended. The exception is to this judgment. Plaintiffs filed a motion to dismiss the bill of exceptions.
G. L. Dickens, Jr., Milledgeville, D. E. McMaster, Sandersville, for plaintiffs in error.
Irwin L. Evans, Sandersville, Sharpe, Sharpe & Hartley, Lyons, for defendants in error.
1. Plaintiff's contention that the judgment overruling the demurrers should be sustained because the pleadings were confused and the defendant should have repleaded rather than merely renewed his demurrers is without merit. The defendants renewed their demurrers to the petition as amended after each amendment, which was sufficient.
2. The issue presents itself as to whether the zoning ordinance relied upon by the plaintiffs is unconstitutional and therefore invalid and of no effect. It is contended that the ordinance is invalid because it violates Art. I, Sec. I, Par. II (Code § 2-102) of the Georgia Constitution which provides: 'Protection to person and property is the paramount duty of government, and shall be impartial and complete' and Art. I, Sec. I, Par. III (Code § 2-103) which provides: 'No person shall be deprived of life, liberty, or property, except by due process of law,' because it fails to provide for any hearing or notice of hearing and therefore permits the deprivation of property rights without due process of law. It is further contended that the ordinance is unconstitutional because Section 67 of the enabling Act, the charter of the City of Sandersville, is unconstitutional on the ground that it too is contrary to the above constitutional provisions.
Nowhere in said ordinance, a copy of which is attached as an exhibit to the original petition, does there appear any language providing for hearing and notice of hearing to the property affected thereby. It is clearly in contravention to the constitutional requirements of due process, Sikes v. Pierce, 212 Ga. 567(2), 94 S.E.2d 427, Jennings v. Suggs, 180 Ga. 141, 178 S.E. 282, Robitzsch v. State, 189 Ga. 637, 7 S.E.2d 387, Southern Ry. Co. v. Town of Temple, 209 Ga. 722, 724, 75 S.E.2d 554, and is therefore unconstitutional and void. In view of this ruling it is not necessary to pass upon the constitutionality of Section 68 of the charter of the City of Sandersville authorizing zoning.
3. It is contended that the structural changes in the building and in the use thereof by the defendants are in violation of Code Ann. § 69-835 (Ga.L.1946, pp. 191, 200) which provides: 'The lawful use of a building or structure * * * as existing and lawful at the time of the promulgation of zoning regulations, or in the case of an amendment of zoning regulations, then at the time of such amendment, may, except as hereinafter provided, be continued although such does not conform with the provisions of such regulations or amendment, and such use may be extended throughout the same building provided no structural alteration of such building is proposed or made for the purpose of such extension.' But this section applies only to pre-existing nonconforming uses of property and, by definition, there can be no such use unless there is in existence a valid zoning regulation affecting the property. Since the zoning ordinance is unconstitutional and of no effect, Code Ann. § 69-835 has no application.
4. (a) The next question is whether the defendants are estopped from raising the invalidity of the ordinance so that it may be enforced against them. Generally, a party is required to plead all the elements necessary to constitute estoppel in order to avail himself of the defense against an assertion of his adversary. Harris v. Abney, 208 Ga. 518, 67 S.E.2d 724. 'Estoppel must be pleaded with particularity and precision, every essential fact being set forth, since nothing can be supplied by inference or intendment, * * * it will be against and not in favor of the estoppel.' 31 C.J.S. Estoppel § 156(1), pp. 759-760. This court has recognized an exception to the preceding general rule in Rieves v. Smith, 184 Ga....
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