Orr v. Hapeville Realty Investments

• Decision Date: 08 November 1954
• Docket Number: No. 18741,18741
• Citation: 85 S.E.2d 20,211 Ga. 235
• Parties: ORR et al. v. HAPEVILLE REALTY INVESTMENTS, Inc., et al.
• Court: Georgia Supreme Court

Page 20

85 S.E.2d 20

211 Ga. 235

ORR et al. v. HAPEVILLE REALTY INVESTMENTS, Inc., et al.

No. 18741.

Supreme Court of Georgia.

Nov. 8, 1954.

Judgment Adhered to Dec. 2, 1954.

Syllabus by the Court

1. The act of 1952, Ga.L.1952, p. 2731, is not a special law for which provision has been made by an existing general law, and it is not unconstitutional and void for any reason assigned.

2. All valid zoning regulations made by the City of Atlanta in accordance with a comprehensive plan are continued in effect by the act of 1952, Ga.L.1952, p. 2719, until modified or repealed by the city.

3. The Planning Board of the City of Atlanta is not an invalid or unconstitutional board.

4. The defendants' property not having been validly rezoned for such use, the trial court erred in permitting its grading and use 'for open air parking.'

The plaintiffs filed a petition to enjoin the construction by Hapeville Realty Investments, Inc., of an office building and a two-story structure for the parking of automobiles on property known as 1307 Peachtree Street in Atlanta, the lot fronting 150 feet on the east side of Peachtree Street and running back, of uniform width, 340 feet. It was alleged that the defendant Mallin had leased from Hapeville Realty Investments, Inc., the ground level of the space to be occupied by the structure for the parking of automobiles, and that this defendant had caused the Dalon Contracting Company, Inc., to begin the grading of the lot for the erection of the parking structure. The plaintiffs alleged that their property, adjoining the property of the defendants, was zoned and restricted to class U-1, dwelling house uses, and that the property of the defendants was zoned and restricted to class U-2, apartment uses. William R. Wofford, building inspector of the city, was made a party defendant, it being alleged that the other defendants would apply for a building permit; and it was asked that the issuance of such permit be enjoined, and that the other defendants be enjoined from proceeding with the proposed construction. The petition as amended makes many attacks on the zoning law and certain ordinances of the city, and in so far as material to the judgment rendered these attacks will be considered in the opinion.

A temporary restraining order was granted against the defendants as prayed, and the cause set for hearing. By amendment the plaintiffs sought to have the Planning Board in the City of Atlanta made party defendant, and the board was ordered to show cause why it should not be made party defendant. The previously granted restraining order was continued in effect. After a hearing on its response, the Planning Board of the City of Atlanta was made party defendant, and temporarily restrained until the further order of the court from proceeding with any rezoning of the property of the other defendants.

On interlocutory hearing, the previous restraining order was continued in effect, except that the defendant Mallin was permitted to prepare the rear 120 feet of the property for open air parking, and the injunction against the planning board, restraining them from holding a hearing or making recommendations as to the rezoning of the property of the defendants, was dissolved. A supersedeas was granted to the dissolution of the injunction against the planning board, and a supersedeas was refused as to the preparation by Mallin of the rear 120 feet of the lot for open air parking. The plaintiffs excepted to the denial of the injunction as to Mallin and the preparation of the 120 feet for open air parking, and to the dissolution of the restraining order against the planning board.

The parties will be referred to in the opinion as they appeared in the court below.

Merrell H. Collier, Henry L. deGive, Atlanta, for plaintiff in error.

Heyman & Abram, Jos. F. Fine, J. C. Savage, J. C. Murphy, J. M. B. Bloodworth, Henry L. Bowden, Martin McFarland, Newell Edenfield, Atlanta, for defendant in error.

Robert B. Troutman, Robert H. Jones, Edgar A. Neely, Jr., J. Richard Bowden, Atlanta, for parties at interest not parties to record.

HEAD, Justice.

1. The plaintiffs attack as unconstitutional and void the act of the General Assembly of 1952, page 2731. The 1952 Act amends a general law approved January 31, 1946, Ga.L.1946, pp. 191-203, authorizing municipalities of this State adopting the provisions of the act to enact zoning and planning ordinances and regulations. The amendment provides that it 'shall apply to all municipalities having a population of more than 300,000, according to the United States census of 1950 or any future United States census'; and that in municipalities having a population of more than 300,000 by the 1950 or any future census, two members of the municipal planning board shall be appointed by the commissioners of roads and revenues or other governing authority of the county in which the municipality is located; and should the municipality lie in more than one county, the two members shall be appointed by the governing authority of the county in which the larger portion of the population is located. The amendment further provides that in municipalities of 300,000 or more, two members of the board of adjustment shall be appointed by the commissioners of roads and revenues in like manner. Two additional sections were added, applying to municipalities of 300,000 or more, with reference to hearing and notice.

The contention is made by the plaintiffs that the 1952 act, amending the general law of 1946, is a special law, and that an attempt to amend a general law by a special law is void. It is further contended that no notice was published of intention to apply for the passage of the 1952 act as a special law, and that it is void for this reason.

In Abbott v. Commissioners of Fulton County, 160 Ga. 657, 129, S.E. 38, it is pointed out that this court has held in a number of cases that a classification upon the basis of population is a reasonable and natural classification where it is adjusted to the purpose or subject matter of the legislation. In the Abbott case it was held that a classification applying to all counties having a population of 200,000 inhabitants or more by the 1920 census, or any future census, did not violate the Constitution, art. I, sec. IV, par. I, Code Ann. § 2-401, with reference to uniformity. In the Abbott case the act related to changing the compensation of certain offcers in the classified territory from the fee system to a salary system, and this court held that classification for this purpose was valid.

In Murphy v. West, 205 Ga. 116, 52 S.E.2d 600, the subject matter of the act was a pension plan for city employees, applying to cities having a population of more than 150,000 according to the census of 1920, or any subsequent census, and this classification was sustained as a general law.

In Barge v. Camp, 209 Ga. 38, 70 S.E.2d 360, the act under attack applied to counties in which is...