Bible v. Marra, s. 25577
| Decision Date | 19 February 1970 |
| Docket Number | 25578,Nos. 25577,s. 25577 |
| Citation | 173 S.E.2d 346,226 Ga. 154 |
| Parties | J. C. BIBLE, Jr., et al. v. C. C. MARRA et al. C. C. MARRA et al. v. J. C. BIBLE, Jr., et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. In order to raise a question as to the constitutionality of a statute, the statute must be clearly specified. A constitutional attack on 'Chapter 69-12 of the Code of Georgia of 1933, as amended,' is not an attack upon any law, since there is no Chapter 69-12 of the 1933 code.
2. The contentions of the plaintiffs as to the deficiencies in the notice of the rezoning hearing are without merit.
3. There has been no judicial ascertainment that the two members of the planning commission, who have moved from the City of Augusta into the area of Richmond County outside the city limits, are ineligible to hold their offices, and the zoning amendment is not void because these members were serving on the planning commission at the time the commission had the rezoning application under consideration.
4. The evidence did not establish the contention that the Augusta-Richmond County Planning Commission had not adopted rules and regulations.
5. The rezoned property is outside the city limits of Augusta, and the rezoning amendment is not void because it was not approved by the City Council of Augusta.
6. Power to 'spot' zone is given the counties and municipalities under Ga.L.1957, pp. 420-443, as amended (Code Ann. Ch. 69-12), and a court has no power to substitute its discretion for the discretion of the zoning authorities on the question of rezoning a small area of land for a use different from that of the property surrounding it.
Hull, Towill & Norman, James M. Hull, Jr., Augusta, for appellants.
Congdon & Williams, W. Barry Williams, Robert C. Daniel, Jr., Augusta, for appellees.
James L. Lester, Augusta, for party at interest not party to record.
C. C. Marra and other property owners of Richmond County (hereafter called plaintiffs) brought an injunctive action against J. C. Bible and Southeastern Builders, Inc., (hereinafter called defendants), and zoning officials of Augusta and Richmond County. The plaintiffs attacked an amendment to the Comprehensive Zoning Ordinance of Augusta and Richmond County, which rezoned a tract of land from single family residential use to multiple family residential use, and sought to enjoin the defendants from constructing apartment buildings on this tract. Motions for summary judgment were filed by both the plaintiffs and the defendants. The trial judge denied both motions. The appeal by the defendants in Case no. 25577 is from that part of the judgment denying their motion; and the appeal by the plaintiffs in Case no. 25578 is from that part of the judgment denying their motion. The trial judge certified that the judgment was of sufficient importance to the issues involved in the case to authorize immediate review.
1. The plaintiffs base their motion for summary judgment on five grounds. The first ground is that they were entitled to a public hearing of any proposed amendment to the Comprehensive Zoning Ordinance, and due notice of the time and place of the hearing, and that the law in effect at the time of the petition for rezoning violated the due process clauses of the State and Federal Constitutions because it did not designate the person whose duty it was to give the notice. Their pleadings designate the law asserted to be unconstitutional as 'Chapter 69-12, Code of Georgia 1933, as amended, and particularly Section 1210 thereof * * *.'
This attack does not draw in question the constitutionality of any law. There is no Chapter 69-12 of the Code of Georgia of 1933, and there can be no amendment of a chapter which does not exist. If a chapter and section of the Georgia Code Annotated, which have been incorporated in the Code since the adoption of the Code of 1933, are intended, this court has repeatedly held that this is not an attack upon the constitutionality of any law. See Adams v. Ray, 215 Ga. 656, 657, 113 S.E.2d 100.
2. The second ground is that the notice of public hearing published in connection with the amendment rezoning the property involved in this case was void because it did not contain a sufficient description of the property to be considered for rezoning.
The Augusta-Richmond County Comprehensive Zoning Ordinance was passed pursuant to Ga.L.1957, pp. 420-443, as amended (Code Ann. Ch. 69-12). The law governing zoning amendments in effect at the time of the application for rezoning here involved (Ga.L.1959, pp. 335, 340) required notice of the time and place of the public hearing thereon. No specification of the description to appear in the notice was given, but due notice would require that the description be sufficiently definite to apprise property owners of the land sought to be rezoned.
(a) The first contention in regard to a deficiency in the description of the notice is that it did not contain any reference to the city, county, or state in which the property is located.
The notice was published in the Augusta Herald, and stated that the Augusta-Richmond County Planning Commission would hold a public hearing at a stated time and place, on a stated date, to consider a petition from Southeastern Builders, Inc., requesting the rezoning of 'property located on the north right of way line of Washington Road a distance of 349.98 feet west of the northwest corner of Washington Road and River Ridge Road,' described by metes and bounds.
Counsel for the plaintiffs cite Callaway v. White, 222 Ga. 371, 149 S.E.2d 689, in support of their contention that this description is too indefinite to give notice of the property for which rezoning is sought. In the Callaway case specific performance was sought of a written contract of sale, and it was held that the description was too indefinite because it gave only a street number, with no indication of the city or state. That case is clearly distinguishable from the present case. A contract of sale might refer to property completely outside of the city, or even the state, wherein it is executed. A notice in regard to rezoning by the Augusta-Richmond County Planning Commission could refer only to property zoned under the Augusta-Richmond County Comprehensive Zoning Ordinance. The notice was not deficient because of the failure to state the city, county, or state in which the property was located.
(b) The plaintiffs contend that the notice does not include an accurate reference to the map or plat of the property to be affected by the zoning amendment, and cite City Council of Augusta v. Irvin, 109 Ga.App. 598, 137 S.E.2d 82, in which the Court of Appeals held that a map or maps form an indispensable part of the zoning ordinance. This holding deals only with the requirements of law in regard to the map or maps forming a part of the original Comprehensive Zoning Ordinance, and not with the notice required prior to any amendment to it.
The published notice stated: 'Plat is on file in the office of the Augusta-Richmond County Planning Commission for inspection.' This placed the public on notice that the applicants for rezoning had filed with the planning commission a plat of the property which they desired to have rezoned, and that this plat could be inspected by any interested person. No further reference to the plat was necessary.
There is no merit in the contention that the zoning amendment was void because of any deficiency in the description in the notice.
3. The third ground is that at the time the Augusta-Richmond County Planning Commission considered the petition for rezoning involved in this case, the commission was illegally constituted, in that the residence requirements of the members did not meet the legal requirements.
The enabling ordinance and resolution creating the Augusta-Richmond County Planning Commission provides that the commission shall consist of nine members, four to be residents of the City of Augusta, appointed by the City Council of Augusta; three to be residents of Richmond County, appointed by the Board of Commissioners of Roads and Revenues; and two ex-officio members, one from the county and one from the city.
The parties have stipulated that at the time of the hearing before the Augusta-Richmond County Planning Commission only two appointed members were residents of the City of Augusta. At the time of the creation of the planning commission the four members appointed by the City Council of Augusta resided within the city limits, but at the time of the hearing by the planning commission on the rezoning here involved two of the members had moved into the area of Richmond County outside of the city limits of Augusta.
Code § 89-501(5) provides: See Channell v. State, 109 Ga. 150(1), 34 S.E. 353; Smith v. Ouzts, 214 Ga. 144, 148, 103 S.E.2d 567; Hagood v. Hamrick, 223 Ga. 600(1), 157 S.E.2d 429; Johnson v. State, 27 Ga.App. 679(3c), 109 S.E. 526.
There is no contention that it had been judicially ascertained that...
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