City of Atlanta v. McLennan, 30955
| Decision Date | 08 June 1976 |
| Docket Number | No. 30955,30955 |
| Citation | 237 Ga. 25,226 S.E.2d 732 |
| Parties | CITY OF ATLANTA et al. v. Alex D. McLENNAN, Jr., et al. |
| Court | Georgia Supreme Court |
Henry L. Bowden, Ralph H. Witt, W. Roy Mays, III, Atlanta, for appellants.
Richard C. Freeman, III, Atlanta, amicus curiae.
Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Emmet J. Bondurant, Susan A. Cahoon, Richard G. Woodward, Atlanta, for appellees.
The appellees here were plaintiffs below, and they brought an action in the trial court against appellants-defendants for declaratory judgment and mandamus. The complaint sought a declaration that the City's zoning ordinance applicable to appellees' land was unconstitutional, and it sought to require the City and its administrative official to issue a building permit for the construction of a shopping center on the subject land.
By consent of the parties all issues of law and fact were submitted to the trial judge for decision. He heard evidence, entered findings of fact and conclusions of law, and rendered a judgment holding the zoning ordinance as applied to the subject land to be unconstitutional and ordering the appellants to issue appellees a building permit for the construction of a shopping center on the subject land. Appellants filed a motion for judgment notwithstanding the verdict and a motion for new trial, both of which were denied by the trial judge. The appellants seek review here.
The issue for decision by the trial judge was whether the zoning ordinance as applied to the subject property (residential uses only) was confiscatory, arbitrary, and unreasonable to the extent of unconstitutionally depriving the appellees of their property and its reasonable use under the rule established by this court in Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975). The trial judge ruled with the appellees on this issue and declared residential zoning of the property to be unconstitutional. We have reviewed the record; we agree with the trial judge; and we affirm the judgment below on this issue.
We can see no point in detailing the evidence and setting forth the background of this lengthy zoning struggle. Let it be sufficient here to say that the City rezoned the property in 1971 as applied for by appellees. However, this zoning action, when attacked by other interested parties, was declared invalid on procedural grounds. See McLennan v. Clarke, 230 Ga. 891, 199 S.E.2d 784 (1973). In 1974, the appellees again applied for rezoning, and their application was denied by the governing authority by a vote of 9 to 8. Having thus failed in their rezoning effort, the appellees applied for a building permit to construct a neighborhood shopping center which was denied because the property was not zoned for that purpose. They them brought their action for declaratory judgment and mandamus.
We conclude that the trial judge was correct in declaring the residential zoning, as applied to the appellees' property, unconstitutional.
After holding the present zoning unconstitutional, the trial judge ordered the appellants 'to issue plaintiff Alex D. McLennan, Jr. a building permit for the construction of a shopping center on the McLennan property upon presentation by the plaintiff McLennan of an application for same, accompanied by plans and specifications which comply with the provisions of the Building Code of the City of Atlanta applicable to structures of that type.' He further permanently enjoined the appellants and those in concert with them from denying a building permit for the construction, operation, or maintenance of a shopping center on the property and from otherwise attempting to enforce or apply residential classifications to the property.
Appellants contend that requiring the issuance of the permit sought is the equivalent of 'judicial zoning,' and that this court carefully avoided the implication of the existence of such judicial power in Barrett v. Hamby, supra.
The appellees contend that once the current zoning applicable to the land has been declared unconstitutional and void, there are no zoning restrictions on the property, and the owners can use the property for such purposes as they deem desirable. They rely on Tuggle v. Manning, 224 Ga. 29, 159 S.E.2d 703 (1968); and Addis v. Smith, 225 Ga. 157, 166 S.E.2d 361 (1969).
We have concluded that the respective contentions of the appellants and the appellees are too extreme; that there is a middle ground that is more equitable and appropriate; and that this is especially so since Georgia's Constitution provides for 'governing authority' zoning rather than 'judicial' zoning. Code Ann. Sec. 2-1923.
Once the zoning regulations applicable to a particular tract of land have been declared unconstitutional and void by the judiciary, before the judiciary can require further mandatory action, the governing authority must be given a reasonable time for the rezoning of the tract to a use classification that is constitutional under the Barrett v. Hamby rule. But if the governing authority does not accomplish this purpose within a reasonable time after the current zoning has been declared unconstitutional and void, then the judiciary, as a last resort toward obtaining compliance with its judgment, may declare such tract unzoned and free from all municipal or county zoning restrictions. We think that judicial restraint in the zoning area is required by our Georgia Constitution, and that the judicary, only as a last resort, should declare a tract of land free from zoning regulations that are imposed and that may be only imposed by local governing authorities.
The reliance by the appellees on Tuggle v. Manning, supra, and Addis v. Smith, supra, for their position is reliance placed on a very slender reed. Tuggle merely held that the complaint in that case stated a claim upon which relief could be granted. Upon the second appearance of that case in this court, Harrison v. Tuggle, 225 Ga. 211, 167 S.E.2d 395 (1969), this court, speaking through now-Chief Justice Nichols, said: ...
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