Martin Marietta Corp. v. Macon-Bibb County Planning & Zoning Commission

• Decision Date: 24 November 1975
• Docket Number: MACON-BIBB,Nos. 30038,30147,s. 30038
• Citation: 235 Ga. 689,221 S.E.2d 401
• Court: Georgia Supreme Court
• Parties: MARTIN MARIETTA CORPORATION d/b/a Martin Marietta Aggregates, Southeast Division v.COUNTY PLANNING & ZONING COMMISSION et al. (two cases).

Page 401

221 S.E.2d 401

235 Ga. 689

MARTIN MARIETTA CORPORATION d/b/a Martin Marietta Aggregates, Southeast Division v. MACON-BIBB COUNTY PLANNING & ZONING COMMISSION et al. (two cases).

Nos. 30038, 30147.

Supreme Court of Georgia.

Nov. 24, 1975.

Rehearing Denied Dec. 15, 1975.

Byrd, Groover & Buford, Denmark Groover, Jr., Macon, for appellant.

Jones, Cork, Miller & Benton, Carr Dodson, Macon, for appellees.

GUNTER, Justice.

These two appeals are from judgments that were adverse to Martin Marietta. The defendants below and the appellees here are the Macon-Bibb County Planning and Zoning Commission and its members. Martin Marietta has come here for review of these judgments, and we affirm both of them.

This controversy had its inception when Martin Marietta filed an application with appellees for a 'Special Zoning Permit for the conditional use of certain lands located in the unincorporated area of Bibb County, Georgia.' The conditional use of the land sought by Martin Marietta was to develop natural resources located thereon, specifically a crushed stone quarry with necessary buildings, machinery, and appurtenances thereto.

The appellees conducted a hearing on the application and thereafter denied the application in the following language: 'After considering all the facts, the Commission determined that the proposed Quarry would not be in conformance with the Comprehensive Plan for Community Development and would have an adverse effect on the existing properties and residential growth in the Lizella area.' Martin Marietta then, in an abundance of precaution because of legal procedural uncertainties, filed two actions in the Superior Court of Bibb County contesting the adverse decision rendered on the application by the appellees. One action was for mandamus; and it contended that Martin Marietta was entitled to have its application granted as a matter of law, no discretion being vested in the appellees that would authorize them to deny the application. The other action in the Superior Court was an application for certiorari to review the decision of the appellees in the event they had discretion in the matter; and it contended that if such discretion was vested in the appellees, the appellees had abused their discretion in denying the application.

The trial judge held a hearing in both actions; he entered a judgment dismissing the mandamus action on the ground that discretion in the matter was vested in the appellees, and on the basis of this legal conclusion, Martin Marietta was not entitled to mandamus relief; and he entered a judgment in the certiorari action denying it on the ground that in the exercise of their discretion in the matter, the appellees had not abused their discretion in denying Martin Marietta's application.

Martin Marietta appealed from the adverse judgment in the mandamus action directly to this court and appealed from the adverse judgment in the certiorari action to the Court of Appeals. Pursuant to authority contained in the Constitution this court ordered the pending appeal in the Court of Appeals transferred to this court and consolidated with the pending appeal in this court for argument and decision. Code Ann. § 2-3704.

I. THE MANDAMUS ACTION

Martin Marietta, contending that it was entitled to have its application granted as a matter of law, relies on Gifford-Hill and Company v. Harrison, 229 Ga. 260, 191 S.E.2d 85 (1972); Jackson v. Abercrombie, 229 Ga. 775, 194 S.E.2d 473 (1972); and Martin Marietta Corporation v. Douglas County, 230 Ga. 721, 198 S.E.2d 674 (1973). In those cases we held that when a governing authority has zoned land for a use that is permitted, the governing authority cannot delegate to its Planning Commission or one of its employee-officials the discretion to grant or deny such a use permit. Reasonable conditions and reasonable regulations applicable to such use must be complied with by the applicant-user, but these are conditions subsequent that are applicable to the permitted use of the land. In those cases the local governing authority had to zone land for particular uses. The power to zone was vested exclusively in the local governing authorities, and once they had zoned the land, no discretion remained with respect to granting or denying an application for a use allowed in that zone.

The Georgia Constitution provides that the General Assembly may grant local governing authorities the power to zone land within their jurisdictions for various uses and to prohibit other or different uses in a designated zone. Code Ann. § 2-1923.

Pursuant to this constitutional authorization the General Assembly has by general statute granted zoning power only to the governing authorities of municipalities and counties. And this power can be exercised only in their respective jurisdictions. Code Ann. § 69-1207. Under this general statute, and also the local statute that was applicable in Gifford-Hill, the power to zone land is for uses that are permitted or prohibited; and there is no power to zone land for uses that may, through an exercise of discretion, be permitted or may be prohibited. In short, under this general statute a local governing authority can zone land, but such zoning is a yes or no proposition. There can be no discretionary zoning.

Under the general statute, Code Ann. Ch....