Harrison v. Arogeti, 26512
| Decision Date | 08 September 1971 |
| Docket Number | No. 26512,26512 |
| Citation | 183 S.E.2d 761,228 Ga. 55 |
| Parties | Clark HARRISON et al. v. James AROGETI et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
The Planning Commission of DeKalb County having recommended to the Board of Commissioners of Roads and Revenues that the application of the plaintiffs to rezone their property be granted and the matter having regularly come on to be heard before the commission in accordance with the law, it was the duty of the commission to affirmatively determine whether to grant the application or to deny it. The vote of the commission on the issue being two in favor of the proposition and two against the proposition, amounted to a failure on the part of the commission to act on the application, since, under the law, it required an affirmative vote of at least three of the members of the commission to take any official action. Therefore, the plaintiffs had a clear, legal right to have the commission decide whether to grant or to deny their application, and the Superior Court of DeKalb County did not err in granting to the plaintiffs a mandamus absolute ordering the commission to place the question upon its agenda and to pass upon the application.
George P. Dillard, Herbert O. Edwards, Robert E. Mozley, Decatur, for appellants.
Zachary & Segraves, W. E. Zachary, Sr., Decatur, for appellees.
The appeal here is from a final order and judgment of the Superior Court of DeKalb County granting to the plaintiffs a mandamus absolute against the defendants and ordering the Chairman of the Board of Commissioners of Roads and Revenues of DeKalb County, one of the defendants, after complying with any notice required by the DeKalb County ordinances, to place on the calendar of the next regular meeting of the Board of Commissioners of Roads and Revenues at which zoning will be considered, the plaintiffs' application to rezone a described tract of land. The essential facts are undisputed. Plaintiffs applied to the Planning Commission of DeKalb County to have the described tract of land rezoned from multiple residence (RM-85) classification to commercial (C-1) classification. The planning commission recommended the rezoning of the property in accordance with the application, and the matter came on to be considered by the DeKalb County Board of Commissioners of Roads and Revenues at their regular meeting on October 27, 1970. One of the five members of the commission was absent. At that meeting a motion was made and seconded to accept the recommendation of the planning commission and to approve the application. The vote upon that resolution was two in favor of its passage and two against. The chairman of the commission declared the motion defeated, and, upon request of the applicants, refused to place the matter on the agenda for consideration at a subsequent meeting. The applicants then brought this action for a mandamus seeking in count 1 of their complaint to require the board of commissioners of roads and revenues to place the matter on the agenda of the next meeting of such board for consideration and official action. That was the relief granted in the order appealed from.
1. Appellants contend that the appellees have no clear, legal right to the relief sought in count 1 of their complaint. This contention is without merit. Under the provisions of Sec. 12(k) of the Act approved March 8, 1956 (Ga.L.1956, pp. 3237, 3248) creating a 5-member board of commissioners of roads and revenues for DeKalb County, such board was enpowered 'to exercise all powers, duty and authority heretofore imposed upon and vested in the Commissioner of Roads and Revenues of DeKalb County in respect to zoning and planning.' By the Act approved March 9, 1943 (Ga.L.1943, p. 930, et seq.) a county planning commission and board of zoning appeals was established for DeKalb County. The Function of the planning commission was to formulate and recommend to the then single commissioner of roads and revenues a comprehensive plan of zoning for the county, which plan, if approved by the commissioner, was to be adopted and promulgated as a formal ordinance Thereafter, the function of the planning commission was to make recommendations to the commissioner of roads and revenues with respect to proposed changes in the comprehensive zoning plan. Under the provisions of Sec. 8 of that Act (Ga.L.1943, pp. 930, 934), the commissioner, upon receipt of a...
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Merry v. Williams
...League of Women Voters of Atlanta-Fulton County v. City of Atlanta, supra at 302-303(1), 264 S.E.2d 859. See also Harrison v. Arogeti, 228 Ga. 55, 183 S.E.2d 761 (1971); Aliotta v. Gilreath, 226 Ga. 263, 264(2), 174 S.E.2d 403 (1970). Compare Stuckey v. Richardson, 188 Ga.App. 147, 149(2), ......
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International Funeral Services, Inc. v. DeKalb County
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Rock v. Head, A01A2170.
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