Morgan v. Cherokee Hills Development Co., 25540
| Decision Date | 08 January 1970 |
| Docket Number | No. 25540,25540 |
| Citation | 172 S.E.2d 669,226 Ga. 60 |
| Parties | H. C. MORGAN et al. v. CHEROKEE HILLS DEVELOPMENT COMPANY et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
The conclusions reached by the county governing authority granting a conditional use permit for the erection of apartments in a zoned suburban residential area will not be set aside by the courts unless clearly arbitrary and unreasonable.
Rupert A. Brown, Athens, for appellants.
Fortson, Bentley & Griffin, Edwin Fortson, Athens, for appellees.
This appeal is from an order dissolving a temporary restraining order and denying an interlocutory injunction.
H. C. Morgan and several others, as citizens and residents of Clarke County and owners of improved real estate in 2 described residential subdivisions, brought their equitable petition against Cherokee Hills Development Company, a corporation, hereinafter referred to as 'defendant corporation'; 3 individuals constituting the Board of Commissioners of Roads and Revenues of Clarke County, and the County Building Inspector.
The complaint in substance alleged: Pursuant to provisions of the Act of 1957 as amended (Ga.L.1957, p. 420, Code Ann. Ch. 69-12) the governing authorities of Clarke County and the City of Athens created a joint planning commission and thereafter in 1961, the county commissioners adopted a comprehensive zoning ordinance affecting land areas outside of the corporate limits of municipalities and divided the areas into 13 zoning districts, one of which is 'R-15 Suburban Residential'. The ordinance provided that the board of county commissioners could authorize multiple dwellings in R-15 districts. Section B of the ordinance provided: 'The following use exceptions and those hereinafter provided for may be permitted in any district where such use is deemed essential to the public convenience or welfare, and is in harmony with the overall plan for the area in question; provided that said use will not adversely affect the health or safety of persons residing or working in the neighborhood of the proposed use, nor will be detrimental or injurious to property or improvements in the neighborhood, and provided further that all applicable requirements of these zoning regulations shall be complied with and provided further that said use will obtain authorization by the County Commissioners pursuant to a study and recommendation by the Planning Commission and an advertised public hearing held by the County Commissioners.'
It was alleged that the corporate defendant is the owner of a described tract of land containing approximately 280 acres which had been zoned as R-15 suburban residential; that the corporate defendant sought to have this tract rezoned. The planning commission recommended that 36.74 acres of the tract be rezoned and multiple family and single family residences be permitted and this recommendation was approved by the county board. The grant of this conditional use was given after notice of a public hearing and a hearing was had by the board of county commissioners.
The petitioners are home and property owners in 2 residential subdivisions in areas abutting the land of the corporate defendant.
The grounds of the petitioners objections to the rezoning of said tract were: (a) Such action was not essential to the general welfare and convenience of the community as provided by Section B of Article 8 of the zoning ordinance; (b) Such conditional use adversely affects the values of the properties of the home owners and, (c) The county board abused its discretion in such action.
The petition alleged that the rezoning was void because...
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