Gay v. City of Lyons
| Decision Date | 24 February 1953 |
| Docket Number | No. 18080,18080 |
| Citation | 74 S.E.2d 839,209 Ga. 599 |
| Parties | GAY v. CITY OF LYONS et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. It was not error to overrule the plaintiff's demurrer to the answer to the petition as amended.
2. It was error to sustain the defendants' plea in bar and to dismiss the amended petition for mandamus.
On September 30, 1952, George R. Gay filed a petition against the City of Lyons, its mayor, clerk, and members of council, seeking a mandamus absolute. The amended petition alleged substantially the following: On July 1, 1952, the plaintiff, the owner of an option to purchase a described lot in said city, filed his application with the clerk of the mayor and council to obtain a building permit for the erection of a filling station on his property. At that time there was in existence an ordinance making it unlawful to erect any building within the city limits without first submitting the plan of such structure to the mayor and council and receiving a permit in writing authorizing the erection of the same. On June 14, 1952, the mayor and council passed a resolution as contemplated by Georgia Laws 1946, p. 191, which authorized municipalities to enact zoning and planning ordinances and regulatins, and appointed three members to constitute a planning board, and three members to constitute a board of adjustment. On July 16, 1952, the planning board presented tentative zoning recommendations to the city, under which tentative plan the property of the plaintiff was zoned for residential purposes. The planning board held a public hearing on the tentative zoning plan, at which time the plaintiff appeared and filed written objections, in which he insisted that such plan violated stated provisions of the State and Federal Constitutions. There objections were overruled and the tentative plan was recommended for approval by the mayor and council. Thereafter, the plaintiff filed similar objections to the proposed zoning ordinance with the mayor and council, which overruled his objections and approved the plans of the planning board without making any change in the same. Thereafter, the mayor and council refused the plaintiff's application for a building permit.
It was alleged that the plaintiff had complied with all laws and regulations of an ordinance of 1926, and with all laws and regulations of the city with reference to obtaining a building permit. It was charged that the refusal of the permit was unreasonable, arbitrary, and discriminatory, and an unlawful interference with the plaintiff's property rights; that the zoning ordinance did not provide a comprehensive zoning plan as contemplated by the act of 1946, and that it violated stated provisions of the State and Federal Constitutions; and that, unless the city be required to issue the permit, the plaintiff will suffer financial loss for which he cannot be compensated. The plaintiff's prayer was for the issuance of a mandamus absolute.
The defendants interposed to the petition as amended a general demurrer, which was overruled, but so far as appears from the record the defendants did not except to said order. The municipal authorities filed an answer, admitting certain allegations of the petition and denying others. The answer asserted that the city could not issue a permit to the plaintiff because the city had adopted, on August 22, 1952, a zoning ordinance, and the location of the plaintiff's proposed filling station was zoned for residential purposes, and the city was without authority to issue a permit for the erection of a filling station. They also filed what they denominated as a 'plea in bar' which alleged that the plaintiff had filed with the municipal planning board his written objections to the tentative plan; that these objections were rejected, and subsequently the plaintiff filed written objections to said plan with the city council, and these objections were overruled. Attached to this plea was a copy of the zoning ordinance which had been adopted by the city, which had placed the plaintiff's property in a district zoned for residential purposes only; that, under the act of 1946, appeals from the decision of the planning board shall be taken to the board of adjustment, and any party dissatisfied with the decision of the board of adjustment may appeal to the superior court. No appeal to the board of adjustment had been filed by the plaintiff; and, as he had not exhausted all of his administrative remedies, and it would be illegal for the city to issue a permit for the erection of a filling station on property zoned for residential use only, the plaintiff is not entitled to the writ of mandamus, and the petition should be dismissed. Subsequently, the defendants amended this plea in bar, and attached to the amendment the proceedings of the city council; the resolution showing the appointment of members of the planning board and of the board of adjustment, and the objections filed by the plaintiff to the proposed zoning ordinance together with the zoning ordinance. To the plea in bar as amended, the plaintiff filed general and special demurrers. One of the grounds of demurrer was that the plea 'fails to set out or show that the plaintiff has any other legal remedy, except the remedy sought in plaintiff's petition, mandamus.' Other grounds of demurrer were that the ordinance was invalid and void as violating certain provisions of the Federal and State Constitutions. These demurrers to the plea in bar as amended were overruled, and the plaintiff filed exceptions pendente lite to this order, as well as to the order overruling his demurrers to the answer.
On October 20, 1952, the trial court, without hearing any evidence, but on the pleadings, entered an order sustaining the plea in bar and dismissing the plaintiff's suit. The case is in this court on a bill of exceptions, in which the plaintiff assigns error on the last order as well as on the orders complained of in the exceptions pendente lite.
Jackson & Graham, Vidalia, for plaintiff in error.
Sharpe & Layne, Lyons, for defendants in error.
1. We first consider the plaintiff's assignment of error that the court erred in overruling his demurrers to the answer. The substance of the answer was that, under the law, the city could not issue a permit to the plaintiff because the city had adopted on August 22, 1952, a zoning ordinance, and the location of the proposed filling station had been zoned for residential purposes. The ordinance is not attached to the answer. One ground of the demurrer was that the zoning ordinance, having been adopted after the plaintiff had filed his application for a building permit, was invalid and ineffective, as being violative of stated provisions of the State and Federal Constitutions, and further, that the ordinance was not a complete or valid zoning ordinance under the zoning law of 1946. The ordinance itself not being in the answer or before the court, these questions could not properly be passed on, and therefore these grounds of demurrer are without merit. The answer was not subject to the objection that it did not set forth any defense to the petition, and therefore it was not error to overrule the other grounds of the demurrer.
2. We now consider the assignment of error that the court erred in overruling the demurrer to the defendants' plea in bar as amended. The substance of the plea in bar was that the city authorities, having passed a zoning ordinance under the provisions of the act of 1946, and having appointed, as provided by the act, a Planning Board and a Board of Adjustment, when the planning board overruled the objections of the plaintiff, he had the right under the act to appeal to the Board of Adjustment, which he failed to do; and therefore the plaintiff, having the adequate remedy of appeal to the Board of Adjustment, was not entitled to the issuance of a writ of mandamus to compel the city authorities to issue the permit.
In reply to this plea the plaintiff, by amendment to his petition, challenged the validity of the ordinance on several grounds; one being that the ordinance was unconstitutional and void as being in violation of stated provisions of the State and Federal Constitutions; another was that it was invalid as not being such a zoning law as was authorized under the zoning act of 1946; and further, that the placing of the plaintiff's property in a district zoned for residential purposes only was arbitrary, capricious, and discriminatory, and as to his property it was invalid.
Section 10 of the zoning act of 1946, supra, provides: that governing authorities of municipalities seeking to exercise the power conferred by the act shall provide for a Board of Adjustment consisting of not less than three and not more than five members; and that appeals may be taken to the Board of Adjustment by...
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