East Lands, Inc. v. Floyd County

• Decision Date: 26 November 1979
• Docket Number: No. 35178,35178
• Citation: 244 Ga. 761,262 S.E.2d 51
• Parties: EAST LANDS, INC. v. FLOYD COUNTY et al.
• Court: Georgia Supreme Court

Page 51

262 S.E.2d 51

244 Ga. 761

EAST LANDS, INC. v. FLOYD COUNTY et al.

No. 35178.

Supreme Court of Georgia.

Argued Sept. 11, 1979.

Decided Oct. 16, 1979.

Rehearing Denied Nov. 26, 1979.

Wright, Walther & Morgan, Robert G. Walther, Rome, for appellant.

Frank H. Jones, Ronald G. Shedd, Rome, for appellees.

MARSHALL, Justice.

The plaintiff, East Lands, Inc., attacks as unconstitutional a zoning ordinance of the Floyd County Board of Commissioners. This zoning ordinance prohibits the plaintiff's optionee from constructing an apartment complex on a tract of land in unincorporated Floyd County. The superior court upheld the validity of the board's zoning decision. The plaintiff appeals.

In 1972, East Lands purchased for $350,000 approximately 120 acres of land in Floyd County. East Lands formulated a plan to develop this tract of land for single family, residential, condominium, apartment, and commercial uses. East Lands has expended approximately $180,000 for engineering, grading, paving, landscaping, and for installing storm drains, gutters, and curbs. In February of 1978, East Lands granted John Laing America, Inc., an option to purchase a 15-acre tract of this property, conditional on John Laing's being able to erect an apartment complex on the property. John Laing has expended approximately $31,000 in developing the property. However, Laing has done nothing to alter the land itself; nor has Laing made application for a building permit. ¹

This 15-acre tract lies in Land Lot 328, 23rd Dist., 3rd Section, which is in the unincorporated area of Floyd County. In October of 1978, various owners of property in the vicinity of the proposed apartment complex site petitioned the board of commissioners to zone Land Lot 328, 23rd Dist., 3rd Section so as to prohibit construction of the apartment complex. The matter was referred to the Rome-Floyd County Planning Commission, and the planning commission recommended that the zoning request be denied. However, the board of commissioners voted to grant the zoning request. The board voted to zone Land Lot 328, 23rd Dist., 3rd Section "R-A" (low density residential). Held : We reverse.

The board of commissioners' decision to zone this tract of land was arbitrary and discriminatory and for these reasons invalid. " 'Zoning ordinances not only must be nondiscriminatory and reasonable, but must be applied in a non-discriminatory and reasonable manner . . . (Cits.)' " Tuggle v. Manning, 224 Ga. 29, 32, 159 S.E.2d 703, 705 (1968); Hopping v. Cobb County Fair Assn., 222 Ga. 704, 705, 152 S.E.2d 356 (1966). Only two percent of the unincorporated area of Floyd County is under any kind of zoning restrictions whatsoever. There is evidence that the board of commissioners takes action to zone property in this area only when someone files a zoning petition. By statute, where cities and counties engage in the exercise of their zoning powers, the zoning must be done "in accordance with a comprehensive plan." Code Ann. § 69-1207. ² The zoning in this case, which is akin to spot zoning, ³ violates this statute.

The appellees argue, however, that Code Ann. § 69-1208 (Ga.L.1957, pp. 420, 426) gives counties and municipalities the power to "spot zone." In pertinent part Code Ann. § 69-1208 provides, "Whenever the municipal planning commission, the county planning commission, or the municipal-county planning commission makes and certifies to its governing authority or authorities a zoning plan, including both the full text of the recommended zoning ordinance or resolution or both and the maps, for the entire area of the municipality or for the entire unincorporated area of the county or for any militia district or land lot . . . , Then the governing authority of the municipality or county may exercise the powers granted to them in section 69-1207 and, for the purposes therein mentioned, may divide the municipality or county or above specified portions of county into districts of such number, shape, and size as it may determine . . ." (Emphasis supplied.) We find this statute to be inapplicable in this case for two reasons.

First, the Rome-Floyd County Planning Commission did not make and certify to the Floyd County Board of Commissioners a plan to zone Land Lot 328, 23rd District, 3rd Section, low density residential. "The method of procedure prescribed in the passage of an ordinance or resolution by county or municipal authorities, to whom authority to legislate has been delegated by statute or charter, must be strictly followed. Unless the ordinance or resolution is adopted in compliance with the conditions and directions given, it will have no force." Toomey v. Norwood Realty Co., 211 Ga. 814, 816, 89 S.E.2d 265, 267 (1955).

Second, the enactment of a zoning plan for a single land lot under Code Ann. § 69-1208 must be in accordance with a comprehensive plan under Code Ann. § 69-1207 and must be designed to promote health and the general welfare, which is also required by § 69-1207.

It is uniformly recognized in other jurisdictions that the touchstone for determining whether the zoning of a given piece of property in a manner different than the property surrounding it constitutes illegal spot zoning, is whether such zoning is arbitrary or whether it is done in accordance with a comprehensive plan. "The term 'spot zoning' is used by the courts to describe a zoning amendment which is invalid because it is not in accordance with a comprehensive or well-considered plan." 1 Anderson, American Law of Zoning 2d, 286 § 5.08 (1976). "The uniform rule as set out in all of the cases is that consistency between the treatment accorded the parcel rezoned and the scheme of zoning set out in the general or comprehensive plan is the essential test." 2 Rathkopf, The Law of Zoning and Planning, 26-5 § 26.03 (4th Ed.). "It is generally agreed that zoning enactments creating a small area within the limits of a zone, within which are permitted uses different from or inconsistent with those permitted in the larger area, are not necessarily invalid, but that the validity or invalidity of such an enactment depends on the circumstances involved in the particular case . . . it has been frequently stated, and it is generally recognized, that a 'spot zoning' ordinance (using the term in its descriptive sense) can be justified only when it is in accordance with a comprehensive plan of zoning which is designed to promote the general welfare, or other statutory objectives. Similarly, it has been stated or recognized that there is no 'spot zoning,' using that term as a label of invalidity, when a zoning ordinance giving a different classification to a small area than to the...