Tuggle v. Manning, 24422
| Decision Date | 05 January 1968 |
| Docket Number | No. 24422,24422 |
| Citation | 224 Ga. 29,159 S.E.2d 703 |
| Parties | R. S. TUGGLE, Sr., et al. v. Brince H. MANNING, Chairman et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
The allegations of the plaintiffs' petition adequately show that the zoning ordinance of DeKalb County is unreasonable and arbitrary as applied to the plaintiffs' property and state a claim upon which relief can be granted.
George B. Haley, Jr., Emmet J. Bondurant, Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Atlanta, for appellants.
George P. Dillard, Herbert O. Edwards, Robert E. Mozley, Decatur, for appellees.
R. S. Tuggle, Sr. and three other named individuals, as the owners and lessee of a described tract of land located in DeKalb County, Ga., known as the Tuggle property, brought an action against the Board of Commissioners of Raods and Revenues of DeKalb County, the Building Inspector of DeKalb County and the Deputy Building Inspector of DeKalb County seeking to have the 'portions of the zoning ordinance of DeKalb County * * * which place the Tuggle property in a Single Family Residential District R-85' declared unconstitutional, null and void as applied to said property and to mandamus the latter two defendants to issue the plaintiffs a certificate of zoning compliance and a building permit for the construction of a shopping center upon the tract in question.
The plaintiffs' petition made the following case. Since June 25, 1946, the Tuggle property has been classified in a residential district which generally restricted the use of the land to single family dwellings and agricultural purposes. While the Tuggle property has been so zoned, the Northeast Expressway (Interstate 85) has been constructed with entrances and exits within approximately 2,100 feet to the west and particularly since 1960 a large number of business establishments have developed within 2,100 feet of the Tuggle property, including an 'extremely large complex of multi-story office buildings known as Executive Park, a large multi-story motel known as The Executive Park Motel, two similar multi-story office buildings, a large motion picture theatre known as Martin's Cinerama, a Morrison's Cafeteria, a 'Burger-King' drive-in restaurant and numerous gasoline service stations, including a Standard Oil station contiguous to the Tuggle property.' Further, particularly since 1964, a large number of apartment projects have been and are being constructed within a distance of one half mile of the Tuggle property as well as a number of churches in the immediate area of and adjacent to said tract of land. Finally, while the Tuggle property has been restricted for residential use, directly across from said property there has been constructed the Briarcliff High School (1966-1967 enrollment 1,734), the Kittredge Elementary School (1966-1967 enrollment 786) and a football stadium having a seating capacity of 8,500. Because of the location of the Tuggle property in close proximity to these commercial, apartment, religious and educational developments, said property is no longer desirable for agricultural or single family residential use and cannot economically and practically be used for the purposes permitted by the existing zoning. On several occasions the plaintiffs have attempted to have their property rezoned for more suitable purposes, but on each occasion their application was denied by the Board of Roads and Revenues of DeKalb County. The shopping center which the plaintiffs desire to construct would be in full compliance with the requirements applicable to uses and structures in local commercial district C-1 which is the zoning classification the plaintiffs sought and were refused. Subsequently, plaintiffs applied to the defendants Building Inspector and Deputy Building Inspector of DeKalb County, whose legal duty it is to issue certificates of zoning compliance and building permits, for a certificate of zoning compliance and a permit to construct a shopping center upon the Tuggle property. Both applications were denied for the reason that the shopping center which the plaintiffs desired to construct on the Tuggle property would not be in conformity with the uses permitted under the Single Family Residential District R-85. These refusals were a gross abuse of discretion and were not justified in that the zoning ordinance restricting the use of the Tuggle property to single family residential purposes is, as applied to the Tuggle property, unconstitutional, null and void. More specifically the petition alleged that the zoning ordinance of DeKalb County which placed the Tuggle property in Single Family Residential District R-85 and restricted the use thereof to agricultural, single family residential or certain specified conditional uses is, as applied to the Tuggle property, unconstitutional, null and void in that it 'prohibits the use of the Tuggle property for the only use for which the property is reasonably and economically suited and has the effect of freezing the Tuggle property in its present undeveloped condition and thus, the application of the zoning restrictions to the Tuggle property is the equivalent to a complete destruction of plaintiffs' valuable property rights in the Tuggle property without the prior payment of just compensation therefor since the Tuggle property is entirely unsuited for single family residential or agricultural purposes * * * in violation of Article I, Section III, Paragraph I of the Constitution of the State of Georgia of 1945 (Code Ann. § 2-301), Article I, Section I, Paragraph III of the Constitution of the State of Georgia of 1945 (Code Ann. § 2-103) and the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States (Code Ann. § 1-815).' Plaintiffs further attacked the zoning ordinance, as applied to the Tuggle property, as being an arbitrary and unreasonable interference with their rights in and use of the Tuggle property.
The prayers of the petition sought to mandamus the Building Inspector and Deputy Building Inspector of DeKalb County to issue to the plaintiffs a certificate of zoning compliance and a building permit for the construction of a shopping center upon the Tuggle property and to have those portions of the zoning ordinance of DeKalb County which place the Tuggle property in a Single Family Residential District R-85, declared unconstitutional, null and void as applied to the Tuggle property.
The defendants filed general demurrers to the petition which, with the consent of the parties, were treated by the court as motions to dismiss for failure to state a claim upon which relief can be granted under Section 12(b)(6) of the Georgia Civil Practice Act (as amended, Ga.L.1967, pp. 226, 231; Code Ann. § 81A-112(b)(6)). The case came on for a hearing on September 28, 1967, and after considering the motions, the court dismissed the plaintiffs' petition for failure to state a claim upon which relief can be granted. The appeal is from this order.
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