Dunaway v. City of Marietta, 40030
| Decision Date | 08 November 1983 |
| Docket Number | No. 40030,40030 |
| Citation | 308 S.E.2d 823,251 Ga. 727 |
| Parties | DUNAWAY v. CITY OF MARIETTA. |
| Court | Georgia Supreme Court |
A. Sidney Parker, Toby B. Prodgers, Awtrey & Parker, P.C., Marietta, for W.H. Dunaway, et al.
Joseph C. Parker, Downey, Cleveland, Moore & Parker, P.C., Marietta, Paul H. Anderson, Sr., John T. Brumby, Sutherland, Asbill & Brennan, John A. Chandler, Atlanta, Lawrence B. Custer, Lynn Morgan, Custer, Walker, Hynes & Johnson, Marietta, for City of Marietta, et al.
This is a zoning case in which we examine the issue of standing to attack the merits of a rezoning and the procedures used, and the issue of possible conflict of interest. We find that Dunaway lacks standing to attack the merits and procedures, but we also find the possible conflict of interest presents issue of fact as to fraud and corruption. On this issue Dunaway has standing.
Appellee City of Marietta granted a rezoning application filed by appellee Georgia Associated Services, Inc. The property was rezoned from office-institutional to general commercial, restricted to use as a drug store. Appellants Dunaway and Dunaway Drug Stores, Inc. (Dunaway) own a nearby tract used for a drug store since 1958. Georgia Associated Services conveyed the property to appellee Eckerd Drugs of Georgia after the rezoning.
Dunaway filed suit to set aside the rezoning and to enjoin its implementation. The complaint was cast in several counts. The trial court found that the complaint did not state sufficient facts to confer upon Dunaway standing to challenge the power of the city to rezone the property or the procedures used. The trial court further granted summary judgment to appellees on Dunaway's claim that the rezoning resulted from fraud and corruption due to a manifest conflict of interest by a city official. Dunaway appeals from these two orders.
The conflict of interest complained of is that of the chairman of the city planning commission, who was also a vice president of General Associated Services. This official presided over the first hearing before the planning commission, although he disqualified himself from voting. He removed himself from the chair on the second hearing before that body. Dunaway charges that this official also contacted city council members and lobbied them to rezone the property.
1. Dunaway appeals from the dismissal of the portion of the complaint dealing with the city's power to rezone and the procedures used. In Brock v. Hall County, 239 Ga. 160, 236 S.E.2d 90 (1977), we held that "[T]he test of standing in rezoning suits is similar to the special damages standing tests as to public nuisances." Id. at 161, 236 S.E.2d 90. In that case, we adopted the "substantial interest--aggrieved citizen" test set forth in former Code Ann. § 69-827 for standing to appeal from decisions of boards of adjustment.
Dunaway's claim of special damages in the form of traffic congestion is not sufficient to confer upon Dunaway the status of the substantial interest--aggrieved citizen. "The mere increase in traffic congestion adjacent to one's property as the result of improvements erected on nearby property and the attendant inconvenience resulting therefrom which are damages suffered alike by all property owners similarly situated, does not give to one individual such a substantial interest in the decision ......
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Department of Transp. v. Brooks
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