Taylor v. Shetzen

• Decision Date: 14 November 1955
• Docket Number: No. 19081,19081
• Parties: L. P. TAYLOR et al. v. Edward SHETZEN et al.
• Court: Georgia Supreme Court

Page 572

90 S.E.2d 572

212 Ga. 101

L. P. TAYLOR et al. v. Edward SHETZEN et al.

No. 19081.

Supreme Court of Georgia.

Nov. 14, 1955.

Rehearing Denied Nov. 29, 1955.

Augustine Sams, Atlanta, James A. Mackay, Decatur, for plaintiffs in error.

Morris B. Abram, Heyman & Abram, Pierre Howard, Atlanta, George P. Dillard, Decatur, for defendants in error.

Syllabus Opinion by the Court

HAWKINS, Justice.

1. Under the decision in Toomey v. Norwood Realty Co., 211 Ga. 814, 89 S.E.2d 265, decided by this court September 12, 1955, the order of the Commissioner of Roads and Revenues of DeKalb County, Georgia changing from residential to apartment use described property belonging to the defendant Shetzen, based on an application filed, notice given, and a hearing held in December, 1953, and entered in December, 1954, more than twelve months after the date fixed for the hearing, and without any order continuing the hearing from the date originally set to the later date on which the order was entered--and the order to amend that order entered on February 3, 1955, by the then Commissioner of Roads and Revenues, reducing the number of apartment units and authorizing a substitution of different architectural plans without notice or hearing, as required by section 8 of the act of 1943, Ga.L.1943, p. 930, are both invalid, null, and void, as is also a later order dated February 22, 1954, rezoning from residential to apartment use an adjoining tract of land, although passed after notice and hearing, but showing on its fact that it is predicated upon the erroneous hypothesis that the two aforesaid void orders had created similar zoning on the adjacent property and permitted similar use of the adjoining property. The building permit issued by the defendant building inspector, authorizing the construction of all thirty-six apartment units authorized by the three orders above referred to, being based upon such invalid orders is likewise invalid, null, and void, and the trial court erred in refusing to grant to the plaintiffs the temporary injunction prayed for, restraining the defendant Shetzen from constructing the apartment units thus sought to be authorized, and the defendant building inspector from issuing any other building permit therefor.

2. The Toomey case, supra, is also authority for the proposition that the plaintiffs did not have any adequate remedy at law by appealing the orders and the building permit to the Board of Zoning Appeals, because that board has no jurisdiction to determine the validity of the zoning ordinances and of the building permit, each of which is held to be void. See also Gay v. City of Lyons, 209 Ga. 599, 607, 608, 74 S.E.2d 839.

3. It is the contention of the defendant Shetzen that, notwithstanding the zoning ordinances heretofore dealt with might be held to be void, the trial court nevertheless properly refused to grant the injunctive relief prayed for, because the only other zoning applicable to the property here involved was under the act of 1943, which purported to zone the property under the comprehensive zoning ordinance adopted June 25, 1946, section 5 of which ordinance declared 'All vacant or unused land or buildings not included within the boundaries of an Industrial, Commercial or Apartment District as defined...