Richter v. D. & M. Associates, Inc., 26852

• Decision Date: 11 February 1972
• Docket Number: No. 26852,26852
• Citation: 228 Ga. 599,187 S.E.2d 253
• Parties: J. C. RICHTER et al. v. D. & M. ASSOCIATES, INC., et al.
• Court: Georgia Supreme Court

Page 253

187 S.E.2d 253

228 Ga. 599

J. C. RICHTER et al. v. D. & M. ASSOCIATES, INC., et al.

No. 26852.

Supreme Court of Georgia.

Feb. 11, 1972.

Syllabus by the Court

1. The trial court erred in dismissing the complaint.

2. It did not abuse its discretion in denying the injunctive relief prayed for.

(a) No cause for reversal appears from the trial court's ruling that sufficient notice had been given of the proposed amendment to the zoning ordinance.

(b) The pleadings made an issue of fact as to whether an injunction should have been entered against the defendant D. & M. Associates, Inc. and therefore did not demand it.

(c) The trial court was correct in permitting the members of the County Board of Commissioners and Planning Commission to continue in office pending an election, and in not enjoining them from enacting further zoning ordinances until such election as provided by Georgia Laws 1971, p. 2638.

3. The issue as to the trial court's refusal to amend the judgment is moot.

D. D. Veal, Eatonton, for appellants.

Martin L. Fierman, Atlanta, Eugene P. Baldwin, Madison, for appellees.

GRICE, Justice.

This controversy involves efforts to prevent construction in a residential subdivision in a zoned area.

Litigation began when J. C. Richter and others, individually and as a class, filed their complaint in the Superior Court of Morgan County, against D. & M. Associates, Inc., the Chairman and members of the Board of Commissioners of that county, and the Chairman and members of the county planning commission. The plaintiffs alleged themselves to be citizens, voters, taxpayers and property owners of Morgan County.

The complaint made in substance the allegations which follow:

The Board of Commissioners of that county, after having defeated on September 1, 1970, an amendment to the present zoning ordinance, purportedly on April 6, 1971, adopted an amendment thereto without the required public notice, for the exclusive benefit of D. & M. Associates, Inc., to enable it to create a residential subdivision in an area previously zoned as rural. Construction will begin without the approval of State and county authorities, will for various reasons result in depreciation of property and a burden to the taxpayers and adjacent landowners of the county, and in irreparable damage and nuisance in stated particulars, and will create a situation fraught with dangers to health, property and society.

The complaint further alleged substantially that the amendment to the zoning ordinance was unreasonable and that it was enacted for the exclusive benefit of the defendant D. & M. Associates, Inc. and was therefore unreasonable and an abuse of discretion.

The complaint also alleged that the Board of Commissioners and the Planning Commission appointed by them were illegally constituted, and that because of the great disparity in voters in each election district the plaintiffs and other voters are deprived of the equal one man, one vote right under the Federal Constitution; that as a result the acts and powers now being exercised by the Board are unconstitutional, illegal and void; and that the zoning ordinance and amendment involved are likewise unconstitutional and invalid, being the product of this unconstitutionally malapportioned Board of Commissioners.

The prayers were: (1) that the Board of Commissioners be declared unconstitutionally elected and invalidly exercising the duties and powers of their offices; (2) that such offices be declared vacant and an election ordered to fill the vacancies on a one man, one vote basis; (3) that the Morgan County planning ordinance and the purported amendment thereto be declared unconstitutional; (4) that the Board of Commissioners be enjoined from enacting further zoning ordinances until their status is adjudicated and until their successors are constitutionally elected and qualified; (5) that D. & M. Associates, Inc. be temporarily and permanently enjoined from proceeding with its plans; (6) that the court decree the rights of the plaintiffs and make such judgments as are necessary to preserve their rights; and (7) for general relief.

D. & M. Associates, Inc. and the county defendants filed separate answers denying the essential allegations of this complaint.

Upon the interlocutory hearing certain stipulations were made by the parties and admissions in the defendants' answers were considered but no oral or documentary evidence was submitted.

A motion to dismiss was made by D. & M. Associates, Inc. Thereupon, the court made the following rulings.

1. It dismissed the entire complaint against D. & M. Associates, Inc. 'for want of the plaintiffs having alleged any special grievance, damage or injury as would give them proper standing to bring this action'; and it extended the ruling to apply to the challenge to the constitutionality of the amended zoning ordinance.

2. It found that sufficient notice was published to authorize the enactment of the proposed zoning amendment.

3. It determined that the present members of the Board of Commissioners of Morgan County are a lawful de facto body and shall be allowed to stand and function as such until their successors are elected; and that the zoning ordinance and amendment thereto shall also stand.

4. It also ruled that the present membership of the Morgan County Planning Commission, appointed by the Board of Commissioners, was allowed to serve as de facto members until their successors are appointed.

5. It took judicial notice of Georgia Laws, 1971, p. 2638, entitled 'An Act to amend an Act creating a Board of Commissioners in and for the County of Morgan, . . . so as to change the method of nominating and electing candidates for the office of Commissioner . . . and for other purposes.' It further ruled that the present Commissioners were allowed to serve out their terms until their successors are elected in the manner prescribed by the 1971 Act, supra.

6. It refused to grant any injunctive relief.

This judgment incorporating the foregoing features was certified for immediate review.

Subsequently the plaintiffs filed a motion to amend this judgment so as to show certain findings of fact which had been stipulated or admitted and also to provide that the trial court make no decision on the merits of the case except as to such facts. This motion was denied.

Enumerated as error in the appeal are the following:

1. The trial court's refusal to grant the motion to amend the judgment as stated above;

2. Its holding that publication of notice of the hearing on the zoning amendment on specified dates was sufficient to authorize its enactment on April 6, 1971, after the amendment was defeated by the Board of Commissioners on September 1, 1970;

3. Allowing the members of the Board of Commissioners and the Planning Commission to continue to function insofar as zoning procedures and authority are concerned.

4. Dismissing the complaint as to D. & M. Associates, Inc. and extending this ruling to apply to the challenge to the validity and constitutionality of the zoning ordinance complained of which, in effect, dismissed the complaint for failure to state a claim upon which relief can be granted;

5. Denying the plaintiffs' prayer for injunction against further zoning or other ordinances until the successors of the Board of Commissioners are elected; and

6. Refusing to grant the injunctive relief prayed for against the defendant D. & M. Associates, Inc. to prohibit creation of the proposed subdivision.

As we view these enumerations, they pose only two basic questions: (1) whether the trial court erred in dismissing the complaint as to D. & M. Associates, Inc. and in extending this ruling to apply to the county defendants, which in effect dismissed the plaintiffs' complaint for failure to state a claim upon which relief can be granted; and (2) whether it erred in refusing to grant the injunctive relief prayed for.

1. Under the Civil Practice Act a complaint need only set out a short and...