Gradous v. Board of Com'rs of Richmond County

• Decision Date: 12 November 1986
• Docket Number: No. 43567,43567
• Citation: 256 Ga. 469,349 S.E.2d 707
• Parties: GRADOUS v. BOARD OF COMMISSIONERS OF RICHMOND COUNTY.
• Court: Georgia Supreme Court

Page 707

349 S.E.2d 707

256 Ga. 469

GRADOUS v. BOARD OF COMMISSIONERS OF RICHMOND COUNTY.

No. 43567.

Supreme Court of Georgia.

Nov. 12, 1986.

J. Richard Dunstan, Broyles, Dunstan & Dunstan, P.C., Augusta, for Carolyn Hopkins Gradous.

Robert C. Daniel, Jr., Burnside, Wall & Daniel, Augusta, for Bd. of Com'rs of Richmond County, Ga.

CLARKE, Presiding Justice.

This is a zoning case. The issue is whether the trial court erred in upholding the governing authority's failure to rezone appellant's property. We find no error and affirm.

Ms. Gradous owns approximately 11.66 acres in Richmond County which bears the zoning designation R-1, one-family residential. She applied to the planning and zoning commission for a rezoning to a mixture of P-1, professional, and R-1-E, one-family residential attached units with possible density of ten per acre. The planning and zoning commission approved the application, but the vote of the county commissioners resulted in an even split so that the motion to rezone failed for the lack of a majority.

Appellant brought suit in the Superior Court of Richmond County. Evidence was introduced by way of affidavit that the property as zoned was worth $174,900.00 and if rezoned would be worth $351,400.00. Appellant showed by affidavit that the existing uses are a mixture of single-family and multi-family residential and professional. Appellant also submitted an affidavit of the executive director of the planning and zoning commission that the effect of a rezoning of a portion of appellant's property to professional would be minimal since there are professional uses directly across the street from the property in question. Appellee submitted no evidence except the minutes of the county commission meeting at which the zoning change was not adopted. The court denied appellant's petition, finding the present zoning reasonably related to the public interest.

Appellant and appellee rely on two different lines of cases from this court. Appellant brings to our attention cases in which we have emphasized that limitation of the landowner's right to use his property as he sees fit may rise to the level of a constitutional deprivation if the public interest in the present zoning is not sufficient. "In the absence of a substantial relation to the public health, safety, morality or general welfare, a zoning law may be set aside as arbitrary or capricious." Sellars v. Cherokee County, 254 Ga. 496, 497, 330 S.E.2d 882 (1985). See also, Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975). "[W]e specifically rule that for such unlawful confiscation to occur, requiring that the zoning be voided, it is not necessary that the property be totally useless for the purposes classified. (Cits omitted.) It suffices to void it that the damage to the owner is significant and is not justified by the benefit to the public." 235 Ga. at 266, 219 S.E.2d 399.

Appellee, on the other hand, relies upon cases which emphasize the presumption of validity of the zoning ordinance. "If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control." DeKalb County v. Chamblee Dunwoody Hotel Partnership, 248 Ga. 186, 190, 281 S.E.2d 525 (1981), quoting Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 71 L.Ed. 303 (1926). See also, DeKalb County v. Graham, 251 Ga. 423, 306 S.E.2d 270 (1983).

However, the proper focus in this case, and indeed in all zoning cases, is whether the appellant has suffered a significant deprivation insubstantially related to the public health, safety, morality or welfare. The validity of a zoning ordinance can be called into question only if the appellant has suffered an unconstitutional deprivation. Such a deprivation must be shown before an attack on a properly enacted zoning ordinance may proceed. This is true whether the ground of the attack is that the ordinance is arbitrary and capricious or that the ordinance is confiscatory.

We begin analysis of the zoning problem before us by asking whether plaintiff has sustained an unconstitutional deprivation or "taking." Only this event triggers a judicial inquiry into the validity of a zoning ordinance. Since zoning is a quasi-legislative function, Olley Valley Estates, Inc. v. Fussell, 232 Ga. 779, 208 S.E.2d 801 (1974), judicial review is available only if there is an allegation that there has been a violation of the constitutional provisions of the Fourteenth Amendment to the Constitution of the United States or a violation of the Constitution of Georgia, Art. I, Sec. I, Para. I (due process) or Art. I, Sec. III, Para. I (eminent domain). Under the eminent domain provision of the Georgia Constitution there may be no damage to the property of an individual for a public purpose without there being first compensation. In the context of government regulation, including zoning, this has been construed to mean that actions of the governing authority which exceed the police power will rise to the level of condemnation and require compensation. Pope v. City of Atlanta, 242 Ga. 331, 249 S.E.2d 16 (1978). "The distinction between use of eminent domain and use of the police power is that the former involves the taking of property because it is needed for public use while the latter involves the regulation of the property to prevent its use in a manner detrimental to the public interest. 1 Nichols, The Law of Eminent Domain, § 1.42 (3d Ed.1976)." Pope v. City of Atlanta, supra, at 334, 249 S.E.2d 16. When the governing authority exceeds the police power in regulating land use for zoning, health regulation, abating of nuisance, building standards or for any other purpose, the governing authority runs afoul of not only the constitutional prohibition against condemnation of land for a public purpose without just compensation but also the due process clause of the Georgia Constitution and the United States Constitution. Pope v. City of Atlanta, supra. In the absence of a...