Moon v. Cobb County

• Decision Date: 03 December 1986
• Docket Number: No. 43570,43570
• Citation: 350 S.E.2d 461,256 Ga. 539
• Court: Georgia Supreme Court
• Parties: MOON et al. v. COBB COUNTY et al.

Page 461

350 S.E.2d 461

256 Ga. 539

MOON et al. v. COBB COUNTY et al.

No. 43570.

Supreme Court of Georgia.

Dec. 3, 1986.

Reconsideration Denied 17, 1986.

Hylton Dupree, Jr., Mark A. Johnson, Dupree & Staples, Marietta, for W.R. Moon et al.

Garvis L. Sams, Jr., Sams, Glover & Gentry, Marietta, for Cobb County et al.

WELTNER, Justice.

In a recent opinion, Dougherty County v. Webb, 256 Ga. 474, 350 S.E.2d 459 (1986) Justice Gregory appended the following footnote:

"In zoning matters it is of fundamental importance to distinguish between two types of cases. The procedures are different in each. Where a constitutional attack is made against a zoning ordinance, this issue must be raised before the local governing body (county commission or city council) in order to afford that body the opportunity to amend its ordinance to bring it within constitutional limits. Village Centers v. DeKalb County, 248 Ga. 177 (281 SE2d 522) (1981). That body however, does not adjudicate the constitutionality of the ordinance. Instead, it acts in its legislative capacity should it elect to amend the ordinance. Olley Valley Estates, Inc. v. Fussell, 232 Ga. 779 (208 SE2d 801) (1974). The landowner who is disappointed before the local governing body next brings a suit in superior court challenging the constitutionality of the zoning ordinance. The superior court determines the law and facts from matters presented to it with no deference to decisions made below on either fact or law. The landowner must establish the unconstitutionality of the ordinance by clear and convincing evidence. Gradous v. Board of Commissioners of Richmond County, 256 Ga. 469, 349 S.E.2d 707 (1986). A landowner who loses may appeal his case to this court where our standard of review as to the facts is the clearly erroneous test. City of Roswell v. Heavy Machines, Co., Inc., 256 Ga. 472, 349 S.E.2d 743 (1986); Board of Commissioners v. Skelton, 248 Ga. 855, 286 S.E.2d 729 (1982). We, of course, owe no deference to the superior court as to the law.

"The other type case is that presented by this opinion [Dougherty County v. Webb ], where a special permit is sought under terms set out in the ordinance. In these circumstances the landowner must present his case on its facts and the law to the local governing body. That body acts in a quasi-judicial capacity to determine the facts and apply the law. See 3 Anderson, American Law of Zoning, § 19.17 (1977); 3 Rathkopf, The Law of Zoning and Planning, § 42-10 (1979); Olley Valley Estates, Inc., supra. A disappointed landowner travels to superior court by direct appeal, if the zoning ordinance so provides, or otherwise by mandamus. City of Atlanta v. Wansley Moving Co., 245 Ga. 794 (267 SE2d 234) (1980). The superior court is bound by the facts presented to the local governing body. The law, of course, is determined anew by the superior court. In a mandamus action, the landowner is entitled to relief only where he has established before the local governing body a clear legal right to the relief sought, or demonstrates to the superior court a gross abuse of discretion. Id."

Applying the first paragraph of that footnote to the case before us, we are unable to conclude that the landowners have been able to "establish the unconstitutionality of the ordinance by clear and convincing evidence." Dougherty County, supra, fn. 3. Gradous v. Board of Commissioners of Richmond County, supra. "We do not ask whether another zoning classification might be more logically and economically 'reasonable' or desirable on all the facts than the one attacked, because that is not the question." Guhl v. M.E.M. Corp., 242 Ga. 354, 355, 249 S.E.2d 42 (1978).

Judgment affirmed.

All the Justices concur, except SMITH, J., who dissents, and CLARKE, P.J., who is disqualified.

SMITH, Justice, dissenting.

I join the majority of the Cobb County Commission in holding the view that the R-20 zoning classification as applied to the subject property is most unsuitable. Unfortunately, the commission and this court, due apparently to a preoccupation with the specific classification requested by the appellants in their rezoning application, abdicated their respective responsibilities in ignoring the unconstitutional nature of the R-20 classification as applied to the subject property. The commissioners' own trial testimony compels such a view of the R-20 classification here, the nature of the appellants' rezoning request notwithstanding.

The appellants sought rezoning of a 50 acre tract located on the north side of Roswell Road approximately 1000 feet west of the intersection of Roswell and Providence Roads. The property east of the intersection contains a K-Mart shopping center, the Merchant's Festival shopping center, the Merchant's Walk shopping center, and other retail and banking establishments. The subject property is currently zoned R-20 which allows single family residential units of a density of one residential unit per every 20,000 square feet which is approximately 1.75 residential units per acre. The appellants applied for a planned shopping center classification, PSC, which would allow general retail and personal service activities.

On September 17, 1985, the Cobb County Commission by a vote of five to zero rejected the rezoning application. The appellants then filed an equitable petition for a declaration that the present zoning classification was unconstitutional.

This case is unusual in that almost without exception everyone agreed that the property as currently zoned restricted the property to uses for which it was no longer reasonably adapted.

Four of the five commissioners who voted against the rezoning application stated in depositions which were read into evidence that the highest and best use for the subject property was some sort of a mixed-use. Commissioner Paschal testified that mixed-use included some general commercial, office and institutional, single-family dwellings and cluster housing which could be as many as...