Seckinger v. City of Atlanta

• Decision Date: 11 October 1957
• Docket Number: No. 19860,19860
• Citation: 213 Ga. 566,100 S.E.2d 192
• Parties: B. J. SECKINGER et al. v. CITY OF ATLANTA et al.
• Court: Georgia Supreme Court

Page 192

100 S.E.2d 192

213 Ga. 566

B. J. SECKINGER et al. v. CITY OF ATLANTA et al.

No. 19860.

Supreme Court of Georgia.

Oct. 11, 1957.

Syllabus by the Court

1. The rezoning ordinance of the City of Atlanta, approved December 5, 1956, amended the shape, boundary, and area of three zoned districts pursuant to valid statutory authority.

2. The restrictive covenant pertaining to use and occupancy, applicable to a small tract of the land involved, will not be violated by the erection of a shopping center wherein members of all races may trade and purchase articles.

(a) Restrictions upon the of land which are vague, doubtful, and uncertain in meaning can not be enforced in equity.

The plaintiffs filed a petition in two counts against W. R. Wofford, as Building Inspector for the City of Atlanta, the City of Atlanta, Samuel Roberts Noble Foundation, Inc., and Lenox Square, Inc., to enjoin the erection of a shopping center on described property. Count one of the petition attacks as ultra vires, illegal, and void an ordinance of the city approved December 5, 1956, rezoning the property described to commercial use. It is alleged: that the ordinance does not amend the number, shape, boundary, or area of any district or districts; it attempts to declare that property in three districts is zoned C-1; it is contrary to law and the comprehensive zoning ordinance, in that it attempts to zone a specific tract of land within districts previously established, and it does not attempt to create a new district; it is illegal and void as constituting spot zoning.

Count two alleges that provisions of a restrictive covenant agreement entered into between the predecessor in title of the corporate defendants and others, including the predecessor in title of one of the plaintiffs, to wit, that 'No person of any race other than the white race shall use or occupy any building or any lot,' and that 'No noxious or offensive trade or activity shall be carried on upon the above mentioned lots or property, nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood,' applicable to a small part of the property rezoned, will be violated by the erection of a shopping center.

The trial judge denied an interlocutory injunction, and the exception is to that judgment.

Augustine Sams, Grigsby H. Wotton, Clifford Oxford, Atlanta, for plaintiff in error.

Troutman, Sams, Schroder & Lockerman, J. C. Savage, J. M. B. Bloodworth, Henry L. Bowden, Ferrin Y. Mathews, Martin McFarland, Robert S. Wiggins, William H. Schroder, Henry B. Troutman, Jr., Wm. G. Grant, Atlanta, Otey, Johnson & Evana, George N. Otey, Ardmore, Okl., for defendants in error.

HEAD, Justice.

In the present case the plaintiffs seek to preserve the status of described property under a zoning ordinance of the City of Atlanta approved December 22, 1954. The general law authorizing 'Zoning And Planning In Municipalities' (Ga.L.1946, p. 191) was made applicable to the City of Atlanta by an act approved February 15, 1952 (Ga.L.1952, p. 2731). By section 1 of the 1946 act, municipalities are 'empowered to make, adopt, promulgate, and from time to time, amend, extend, and add to' zoning regulations, and to divide the municipality 'into districts of such number, shape, and area as may be deemed best suited' to carry out the purposes of the act. Section 9 of the 1946 act provides in part that 'The governing authority of the municipality may from time to time amend the number, shape, boundary or area of any district or districts, or any regulation of, or within such district or districts, or any other provision of any zoning regulation.' 'Under the above provision of the 1946 act, the Mayor and Council of the City of Atlanta may amend the number of districts zoned, the shape, boundary, or area of zoned districts.' Orr v. Hapeville Realty Investments, 211 Ga. 235, 85 S.E.2d 20, 24.

By an ordinance approved December 5, 1956, it is recited in the caption that it is to 'amend the 1954 Zoning Ordinance of the City of Atlanta by changing from R-3 and R-4 (Single Family Dwelling District) and C-1 (Community Business District) to C-1 (Community Business District) property fronting 1069.8 feet, more or less, on the southeasterly side of Peachtree Road, beginning at the southeast corner of Lenox Road and Peachtree Road, N. E. depth, average 1900 feet.' In section 1 of this ordinance it is provided that described property, approximately 70 acres, 'now zoned as C-1 (Community Business District), R-3 (Single Family Dwelling District) and R-4 (Single Family Dwelling District) shall, in its entirety, be zoned as C-1 (Community Business District).'

From the quoted provisions of this ordinance, it indisputedly appears that the shape, boundary, and area of zoned districts were amended pursuant to constitutional and statutory authority. Orr v. Hapeville Realty Investments, supra; Neal v. City of Atlanta, 212 Ga. 687, 94 S.E.2d 867. In Neal v. City of Atlanta, supra, it was held that a rezoning of the same property here involved would not constitute spot zoning.

The cases of Mueller v. C. Hoffmeister Undertaking & Livery Co., 343 Mo. 430, ...