Neal v. City of Atlanta

• Decision Date: 10 October 1956
• Docket Number: No. 19457,19457
• Citation: 94 S.E.2d 867,212 Ga. 687
• Parties: J. H. NEAL et al. v. CITY OF ATLANTA et al.
• Court: Georgia Supreme Court

Page 867

94 S.E.2d 867

212 Ga. 687

J. H. NEAL et al. v. CITY OF ATLANTA et al.

No. 19457.

Supreme Court of Georgia.

Oct. 10, 1956.

Rehearing Denied Oct. 29, 1956.

Augustine Sams, Sams, Wotton & Sams, Grigsby H. Wotton, Cliford Oxford, Atlanta, for plaintiffs in error.

J. C. Savage, J. M. B. Bloodworth, Henry L. Bowden, Newell Edenfield, Ferrin Y. Mathews, Harold Sheats, Robert S. Wiggins, Troutman, Sams, Schroder & Lockerman, W. H. Schroder, Henry B. Troutman, Jr., Haas, White & Douglas, Leonard Haas, Edward S. White, for defendants in error.

Wm. G. Grant, Smith, Kilpatrick, Cody, Rogers & McClatchey, Atlanta, for parties at interest not parties to record.

Syllabus Opinion by the Court.

CANDLER, Justice.

This is a zoning case. It involves an area of approximately seventy acres in the City of Atlanta, locally known as the 'Ottley Home Place,' which was zoned on December 22, 1954, in part for community business and in part for single-family dwelling use. On April 4, 1956, the mayor and board of aldermen of the City of Atlanta granted a special permit to use the area for community business, namely, a shopping center, on condition that plans therefor conform, both in architectural design and in layout, generally to plans submitted and approved by the zoning committee of the city's board of aldermen. The plaintiffs, as citizens and taxpayers of the City of Atlanta and as residents of the community in which the area is located, instituted this litigation to prevent the use of it for a shopping center. In addition to the facts stated above, the material allegations of the petition as amended are briefly and substantially as follows: Article 21 of the defendant city's 1954 ordinance is a special ordinance or municipal law dealing with a subject for which provision has been made by an existing general State law, namely, the zoning and planning act of 1946, p. 191, sections 9 and 10, and therefore the ordinance offends article 1, section 4, paragraph 1 of the Constitution of 1945, Code, § 2-401; that the defendant city derived no authority from the zoning and planning act of 1946 to adopt article 21 of its 1954 zoning ordinance and, for want of such authority, it is ultra vires action by the defendant city and therefore void; that the defendant Samuel Roberts Noble Foundation, Inc., as an optionee only of the subject property, had no such interest in the same as would authorize it to apply for a special permit to change the use for which it had been previously zoned; that the special permit granted by the ordinance of April 4, 1956, is an attempt by the defendant city to 'spot' zone, which it cannot legally do; and that the plaintiffs have vested property rights in consequence of the defendant city's 1954 zoning ordinance, which the city is without power to divest by a subsequent ordinance. Besides for process, rule nisi, and service, the prayers are: (1) that article 21 of the city's 1954 zoning ordinance be decreed unconstitutional, ultra vires, and therefore void; (2) that the defendant Samuel Roberts Noble Foundation, Inc. be temporarily and permanently enjoined from applying to the defendant city and the defendant W. R. Wofford, the city's building inspector, for a building permit to erect a shopping center on the premises involved; and (3) that the defendant city and the defendant Wofford be temporarily and permanently enjoined from issuing such a building permit. No demurrer was interposed to the amended petition but the defendants by their answers denied its material allegations. At an interlocutory hearing, the trial judge held that article 21 of the ordinance adopted on December 22, 1954, was not for any reason assigned unconstitutional or ultra vires; that the special use permit granted on April 4, 1956, was valid and did not constitute 'spot' zoning; that the plaintiffs had no vested rights under the defendant city's zoning ordinance of 1954, and, after so holding, denied the temporary injunctive relief prayed for. In his judgment the trial judge state: 'The court does not pass on this case as a discretionary matter at all. It passes on it purely and simply as a matter of law and as a result of the rulings heretofore made on questions of law.' The plaintiffs excepted. Held:

1. The special permit here complained of was granted by the zoning authority of the defendant City of Atlanta under the provisions of article 21 of an ordinance which the city adopted on December 22, 1954. The defendants contend that article 21 was authorized by the zoning and planning act for municipalities of 1946, Ga.L. 1946, p. 191. We cannot agree to this contention but hold that nothing contained in the act of 1946 authorized...