DeKalb County v. Post Properties, Inc.
| Decision Date | 24 January 1980 |
| Docket Number | 35363 and 35364,Nos. 35362,s. 35362 |
| Citation | 245 Ga. 214,263 S.E.2d 905 |
| Parties | DeKALB COUNTY et al. v. POST PROPERTIES, INC., et al. VARRIEUR et al. v. DeKALB COUNTY et al. (two cases). |
| Court | Georgia Supreme Court |
James H. Weeks, Decatur, for appellants (Case No. 35362).
Dillard & Shearer, G. Douglas Dillard, Atlanta, for appellees (Case No. 35362).
McCauley, Owen & Sweeney, Timothy J. Sweeney, Jeffrey N. Plowman, Atlanta, for appellants (Case Nos. 35363, 35364).
G. Douglas Dillard, Atlanta, James H. Weeks, Decatur, for appellees (Case Nos. 35363, 35364).
Brunette M. Spruill has owned approximately thirty-four (34) acres of land at the intersection of Ashford-Dunwoody Road and I-285 in DeKalb County since 1931. 1 The property is bisected by Ashford-Dunwoody Road into a 23-acre tract and an 11 acre tract. On or about May 15, 1978, Ms. Spruill entered into two contracts for the sale of the property to Post Properties, Inc., subject to Post Properties obtaining a zoning reclassification from R-100 to RM-100. 2 Post Properties, Inc., intended to develop the property as a luxury garden apartment complex.
On May 26, 1978, Post Properties, Inc., filed a conditional zoning application and a site plan showing the proposed development with the Board of Commissioners of DeKalb County seeking the adoption of a resolution changing the zoning classification from R-100 to RM-100, conditional. The planning department reviewed the application and recommended that the property be rezoned R-A5, cluster housing, condominiums, single family attached dwellings. The planning department suggested that the RM-100 application could be approved if it were modified, as follows: "(1) Access shall be to Ashford-Dunwoody Road only; (2) There shall be only one point of access from each tract at a point to be determined by the Traffic Engineer; (3) A 50' buffer shall be maintained along the R-100 boundaries to the east, west and south; (4) Development shall be no closer than 200' to Lake Hearn Drive on the westernmost tract. Conditional R-A5 is recommended by the staff based on current density recommendations of the Comprehensive Plan (0-5 units/acre). If the RM-100 request were modified to include similar conditions as above and reduce density to less than 10 units/acre, it would be consistent with Plan recommendations (low-medium density) at the time of the preapplication conference on 8-9-77 and the original date of filing on 11-21-77."
On July 5, 1978, Post Properties amended its application, reducing the requested density from 12 to 9 units per acre. On July 11, 1978, the DeKalb County Planning Commission heard the matter and recommended denial of the application by a three-two vote. On July 25, 1978, the Board of Commissioners denied the application by a five-zero vote, with two members abstaining.
On January 9, 1979, Post Properties and Ms. Spruill filed this action seeking to have the R-100 classification declared unconstitutional and to enjoin the defendants from preventing them from using the property in accordance with their rezoning application. Trial was set for March 21, 1979, but was rescheduled for April 25, 1979. On April 13, 1979, John Varrieur and other members of an alleged class of property owners with an interest in the matter filed a motion to intervene and a proposed answer to the complaint. The proposed intervenors did not obtain a pre-trial hearing on their motion. Plaintiffs moved that the motion to intervene and intervenors' answer be denied and disallowed. Plaintiffs' motion was set for hearing upon the call of the matter for trial. Following the hearing, the motion to intervene was denied. Counsel for the intervenors and for Post Properties stipulated that "the motion to intervene was denied by the Court, and counsel for the intervenors has been allowed to participate with counsel for the defendants (the county) in these proceedings." Intervenors' counsel did so participate, cross examining plaintiffs' witnesses and calling witnesses of their own. The intervenors, represented by new counsel, have appealed the denial of their motion to intervene. 3
The trial court ruled that the R-100 zoning was unconstitutional and held: "The Court concludes that no single-family classification of the subject property has a substantial relation to the protection of the public health, safety, morality or general welfare of the community and any protection which might be afforded by such single-family classification is far less significant than the damage which is suffered by the owner of the property, and is certainly not justified by any benefit to the public." 4
The county has appealed, enumerating the following errors: At the outset, we agree with Post Properties' contention that the county has not appealed the trial court's holding that the current R-100 zoning is unconstitutional. The first two enumerations do not appeal that ruling, and the third enumeration does not encompass that point. 5 Our finding that the trial court's determination that the existing R-100 zoning is not challenged by the county on appeal is reinforced by the fact that nowhere in the county's brief is it argued that that specific determination was erroneous. Furthermore, the argument division of Post Properties' brief begins by saying The county's supplemental brief filed thereafter does not contest that statement.
1. The county's first two enumerations challenge the trial court's ruling that no single family zoning classification can be constitutionally applied to the property. It is unnecessary to review the evidence presented at the trial which is alleged to provide support for that ruling in view of the fact that the record does not disclose any challenge having been made to any classification other than R-100 before the county commissioners. 6 A constitutional attack on a zoning classification cannot be made for the first time in the superior court. International Funeral Services, Inc. v. DeKalb County, 244 Ga. 707 (n.2), 261 S.E.2d 625 (1979); Sparks v. Caldwell, 244 Ga. 530, 261 S.E.2d 590 (1979); Harrison v. Southern Talc Co., 245 Ga. ---, 264 S.E.2d 2 (1980).
Additionally, no constitutional attack on intervening classifications was alleged even in the superior court. (We do not view the prayer for relief that "Defendants be temporarily and permanently restrained and enjoined from preventing plaintiff from using said property in accordance with its rezoning application" as sufficient to state a constitutional attack on the intervening classifications.) Although the technicalities involved in raising constitutional questions have been relaxed, see Grantham v. State, 244 Ga. 775, 262 S.E.2d 777 (1979), it is still required that: "In order to raise a question as to the constitutionality of a 'law,' at least three things must be shown: (1) the statute or the particular part or parts of the statute which the party would challenge must be stated or pointed out with fair precision; (2) the provision of the Constitution, which it is claimed has been violated must be clearly designated; and (3) it must be shown wherein the statute, or some designated part of it, violates such constitutional provision." Richmond Concrete Products Co. v. Ward, 212 Ga. 773, 774, 95 S.E.2d 677, 678 (1956). 7 The proper constitutional challenge to intervening zoning classifications not having been made before the County Commissioners so as to afford the County Commissioners an opportunity to rectify the situation, the superior court erred in declaring all single family classifications unconstitutional as applied to this property. The only issue raised before the County Commissioners and hence the only issue properly before the court was the constitutionality of the R-100 classification. The case must be remanded to the County Commission for rezoning in accordance with the trial court's order that the R-100 classification is unconstitutional. 8
2. The remaining issue is whether the trial court erred in denying the motion to intervene. The intervenors argue that they come within Code Ann. § 81A-124(a)(2); that is, that they may intervene as of right. Code Ann. § 81A-124(a) (2) provides for intervention of right "when the applicant claims an interest relating to the property or transaction which is the subject-matter of the action and he is so situated that the disposition of the action may as a...
To continue reading
Request your trial
-
Cooper v. State, S03A1255.
...such constitutional provision.'" [Wallin v. State, 248 Ga. 29, 30(1), 279 S.E.2d 687 (1981) (quoting DeKalb County v. Post Properties, 245 Ga. 214, 218, 263 S.E.2d 905 (1980)).] Chester v. State, 262 Ga. 85, 88(3), 414 S.E.2d 477 (1992). Cooper has adequately raised his constitutional When ......
-
Deller v. Smith
...time in her motion for rehearing filed in the Court of Appeals. We, therefore, will not consider it here. See DeKalb County v. Post Properties, 245 Ga. 214, 263 S.E.2d 905 (1980). "The defenses enumerated in § 12(b) of The Civil Practice Act except (6), failure to state a claim upon which r......
-
In re LC
...v. State, 262 Ga. 85, 88, 414 S.E.2d 477 (1992); Wallin v. State, 248 Ga. 29, 30(1), 279 S.E.2d 687 (1981); DeKalb County v. Post Properties, 245 Ga. 214, 218, 263 S.E.2d 905 (1980). 17. Lucas v. Lucas, 273 Ga. 240, 242, 539 S.E.2d 807 (2000); Bohannon v. State, 269 Ga. 130, 137, 497 S.E.2d......
-
Buckler v. Dekalb County
...a three-fold showing of (1) interest, (2) potential impairment, and (3) inadequate representation." DeKalb County v. Post Properties, 245 Ga. 214, 219, 263 S.E.2d 905 (1980). Under the permissive intervention provisions of OCGA § 9-11-24(b)(2), anyone upon timely application may be permitte......
-
Researching Georgia Law (2006 Edition)
...in .pdf Coverage Revised 2005 Update As revised Notes Also includes constitutional amendments 4. See DeKalb County v. Post Prop., Inc., 263 S.E.2d 905,908 (Ga. 1980) (stating "the provision of the Constitution, which it is claimed has been violated must be clearly designated."). 2005] RESEA......