Burry v. DeKalb County
| Decision Date | 13 January 1983 |
| Docket Number | No. 65167,65167 |
| Citation | 165 Ga.App. 246,299 S.E.2d 602 |
| Parties | BURRY v. DeKALB COUNTY, Georgia et al. |
| Court | Georgia Court of Appeals |
Christopher J. Valianos Kathryn M. Zickert, Atlanta, for appellant.
Gail C. Flake, George P. Dillard, Decatur, M. Kathleen Lewis, G. Douglas Dillard, Atlanta, Duard R. McDonald, Marietta, for appellees.
Rezoning. Chamblee-Dunwoody Hotel Partnership is the owner of 8.3 acres of land adjacent to the intersection of Chamblee-Dunwoody Road and I-285. Over the past twelve years, this tract of land has been zoned as residential property. During that period of time, seven different applications have been presented to the DeKalb County Commission seeking to rezone the acreage as O-I or commercial. The last such attempt was by the present owners in 1979. The Commission rezoned the property to residential-condominium but not to O-I. The partnership brought suit complaining that the failure to zone the property for business use was an unconstitutional limitation on the property owner's reasonable rights to use its property as it saw fit. Our Supreme Court rejected this contention and held that the zoning as residential-condominium was not an unconstitutional zoning of the property. DeKalb County v. Chamblee Dunwoody Hotel Partnership, 248 Ga. 186, 281 S.E.2d 525. The particular tract under consideration is under contract for sale to The Bentley Group, Ltd., a consortium of developers. That contract is contingent upon a successful rezoning of the property from residential to business.
In early 1982, on its own motion and on behalf of the Bentley Group, the DeKalb County Commission petitioned the Planning Commission to rezone the property from residential to O-I. After hearing, the DeKalb County Commission did rezone the property to O-I. David Burry is a homeowner who owns property immediately across Chamblee-Dunwoody Road from the property under litigation. He and an organization of homeowners who own homes in the general neighborhood of the rezoned tract (Gainesborough 500 Civic Association, Inc.) brought the present suit against the DeKalb County Commission, each commissioner individually, the county and others directly involved in zoning decisions in the county, the Bentley Group, and ultimately upon a motion to intervene, against the Hotel Group. Each of the defendants filed an answer, but because of the large amount of money involved and the uncertainty of execution of that contract caused by the contingency of successfully changing the zoning to O-I, defendants moved for an expedited hearing.
Prior to the expedited hearing, each defendant moved the trial court to dismiss Burry's and the Gainesborough complaint upon the ground that neither possessed requisite standing to contest the zoning order of DeKalb County. The trial court granted an expedited hearing holding the same less than 30 days from the filing of the answers and motions to dismiss by the defendants. At that hearing the trial court allowed evidence as to standing both by Burry, the Gainesborough group and the Bentley Group. The trial court ruled that neither Burry nor the Gainesborough group had requisite standing to contest the zoning ruling and, at the motion of all the defendants, dismissed the complaint. Burry alone brings this appeal raising as enumerations three alleged errors. Held:
1. In substance, Burry complains that he was deprived of sufficient time to present evidence on the issue of standing. Related to this complaint are arguments: that the trial court erred in granting an expedited hearing in contravention of local rules; violated the time restraints of the Civil Procedure Act; erroneously denied a motion for a continuance; curtailed the time available and thus denied Burry rights of discovery; and generally denied him a constitutional hearing.
The crux of the respective positions adopted by Burry and the county and property owners is that a motion to dismiss for lack of standing is either a motion in bar of judgment (Burry's position) or is a motion in abatement (the appellees' position). If it is a plea in bar then the taking of evidence converted the plea from a motion to dismiss to a motion for summary judgment and went to the merits of the case. Newsrack Supply v. Heinle, 127 Ga.App. 843, 195 S.E.2d 193. If it was a plea in abatement, then the taking of evidence was proper, the expedited hearing was in accordance with the requirements of the Civil Practice Act and within the powers of the trial court to grant. See Knight v. U.S. Fidelity &c. Co., 123 Ga.App. 833, 834, 182 S.E.2d 693. The trial court concluded the standing issue was a matter in abatement.
In this determination we conclude the trial court erred. Excluding pleas going to the jurisdiction of the court...
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