Pendley v. Lake Harbin Civic Ass'n

• Decision Date: 24 May 1973
• Docket Number: Nos. 27837-27840,s. 27837-27840
• Citation: 230 Ga. 631,198 S.E.2d 503
• Parties: David M. PENDLEY et al. v. LAKE HARBIN CIVIC ASSOCIATION et al. LAKE HARBIN CIVIC ASSOCIATION et al. v. S.S. ABERCROMBIE et al. S.S. ABERCROMBIE et al. v. LAKE HARBIN CIVIC ASSOCIATION et al. Ken PARTISS v. LAKE HARBIN CIVIC ASSOCIATION et al.
• Court: Georgia Supreme Court

Page 503

198 S.E.2d 503

230 Ga. 631

David M. PENDLEY et al. v. LAKE HARBIN CIVIC ASSOCIATION et al.

LAKE HARBIN CIVIC ASSOCIATION et al. v. S.S. ABERCROMBIE et al.

S.S. ABERCROMBIE et al. v. LAKE HARBIN CIVIC ASSOCIATION et al.

Ken PARTISS v. LAKE HARBIN CIVIC ASSOCIATION et al.

Nos. 27837-27840.

Supreme Court of Georgia.

May 24, 1973.

Syllabus by Court

1. The interlocutory injunction was properly granted.

2. The trial court did not err in failing to grant injunctive relief upon the grounds alleged in the cross appeal.

3. The motion to dismiss the cross appeal cannot be sustained.

Johnston & McCarter, John M. McCarter, Ralph E. Carlisle, Atlanta, for Pendley.

Furman Smith, Jr., Atlanta, for Lake Harbin Civic Assn.

John R. McCannon, Jonesboro, for Abercrombie.

Smith, Cohen, Ringel, kohler, Martin & Lowe, J. Arthur Mozley, Atlanta, for Partiss.

GRICE, Presiding Justice.

These three appeals and the cross appeal involve the grant of a temporary injunction prohibiting the use of three tracts of land as rezoned. The essential issues are whether a 'public hearing' was held with respect to the rezoning applications and whether the evidence justified injunctive relief.

Lake Harbin Civic Association, an unincorporated nonprofit association, Ralph A. R. Adamson, Jerry E. Johnson and William C. Crane filed suit in the Superior Court of Clayton County against S.S. Abercrombie, Tommie Vaughn and Ronnie Jones, Commissioners of Clayton County; W. Richard Haynie, Chief Building Inspector of Clayton County; and David M. Pendley, H. Jack Pendley and Ken Partiss.

The complaint alleged inter alia that the following three applications for rezoning approved by the Commissioners of Clayton County on October 11 and 12, 1972, were illegal; two acres of land owned by David M. and H. Jack Pendley, hereinafter referred to as the Lake Harbin tract, from R-3 (apartments) to C-1 (suburban commercial); 16.8 acres owned by Ken Partiss, hereinafter referred to as the Mount Zion Commercial tract, from R-1A (single family residential) to C-1 (suburban commercial); and 72.4 acres owned by Ken Partiss, hereinafter referred to as the Mount Zion townhouse tract, from R-1A (single family residential) to R-4 (townhouse).

The plaintiffs were the unincorporated association of persons owning homes in the area affected by the three attempted rezonings, and three individuals owning homes directly adjoining the two tracts owned by the defendant Partiss.

The complaint set forth five counts and sought to temporarily enjoin the defendants David M. and H. Jack Pendley and Partiss from developing or otherwise utilizing any part of the three tracts for a use other than that permitted prior to the purported rezoning. It also prayed that the defendant Haynie be temporarily enjoined from issuing any building permits for said tracts other than for a use which would have been permitted prior to the purported rezoning; and that the defendant board of commissioners be ordered to show cause why the purported rezoning of the three tracts should not be declared null and void.

After a hearing the trial court issued the following order: 'This case came on regularly for hearing on December 6, 1972 with respect to plaintiffs' request for a preliminary or temporary injunction, and all parties appeared through counsel and presented evidence and arguments. Evidence in the form of affidavits, depositions, documents and oral testimony was admitted, and the Court has duly considered all of the evidence and all of the arguments of counsel. At the conclusion of the hearing plaintiffs withdrew and did not urge the claims for relief and allegations set forth in counts one and five of the complaint, and no injunctive or other relief is granted with respect to same. The court is of the opinion that under the evidence and the law applicable thereto plaintiffs are not entitled to relief with respect to the claims for relief and allegations set forth in counts three and four of the complaint, and no injunctive or other relief is granted with respect to same. With respect to the claims for relief and allegations set forth in Count Two of the Complaint, the court is of the opinion that under the evidence in this case and the law applicable thereto plaintiffs are entitled to relief only with respect to the claim and allegations based upon the following:

'The evidence in this complaint for injunctive relief shows 36 zoning petitions were scheduled to be heard before the Commissioners of Clayton County on October 11, 1972, at 7:30 o'clock p.m.; that the hearings continued until 3:30 o'clock a.m., October 12, 1972; that from 1,200 to 1,500 people were present to attend the public meeting; that the hearings were held in the commissioners' hearing room, which accommodates approximately fifty people; that there were three other larger rooms in the courthouse where the hearings could have been legally held; that people were packed so closely in the entire corridor outside the hearing room that those interested in various petitions could not get close to the door, much less inside the hearing room. Zoning is a matter of highest governmental business. The government's business should not be conducted in unreasonable places, at unreasonable hours. To do so would seem to defeat the intent of the General Assembly to insure reasonable, orderly, and public hearings when required by law. The court finds that conducting the county business of zoning after mid-night and into the early morning hours, and on a day other than as previously advertised, and in one of the small public meeting rooms in the courthouse where only a small number of the approximately 1,200 to 1,500 people present had access, was unreasonable to the extent that the general public was deprived of an effective, meaningful public hearing before the commissioners of Clayton County to which they were entitled by law.'

The trial court certified the order for immediate review and continued the temporary restraining order previously granted in full force and effect pending a jury trial.

All the defendants appeal from this order.

The plaintiffs' cross appeal is based upon the failure of the trial judge to grant relief under the remaining grounds of the complaint. The defendant Partiss subsequently filed a motion to dismiss the cross appeal.

1. The appeals of the defendants Pendley and the Clayton County officials enumerate as sole error the above order. Although the defendant Partiss sets forth seven enumerations of error, there are only three basic questions raised by the three appeals, to-wit: (1) whether or not the meeting before the Clayton County Commissioners to consider the rezoning applications constituted a lawful public hearing; (2) whether there was any evidence that the plaintiffs suffered or would suffer imminent harm from the rezoning of the property; and (3) whether the purported rezonings were illegal.

(a) We conclude that the evidence here was sufficient to authorize the trial judge to grant the interlocutory injunction appealed from. 'The granting and continuing of injunctions shall always rest in the sound discretion of the judge, according to the circumstances of each case. The power shall be prudently and cautiously exercised, and except in clear and urgent cases should not be resorted to.' Code § 55-108.

The record discloses substantial evidence to support the findings of the trial judge, such as the following. One man swore that when he arrived for the hearing there was already an 'enormous' crowd gathered in the hearing room and the hallway outside; that it took him thirty-five minutes to get from the hallway into the hearing room, which he managed only through the help of friends who were already inside; that there were no microphones in use and it was difficult to hear the proceedings even inside the hearing room; that when he asked the commissioners to clear the hearing room to let in persons who wanted to speak pro or con on each petition in turn they took no action on the request; and that he then left the hearing to enable some other interested person to have a chance to get in.

It was undisputed that when the Lake Harbin tract petition came up for hearing, one of the commissioners stated that he would vote for a deferral of the petition, but when...