Washington Seminary v. Bass

• Citation: 16 S.E.2d 565,192 Ga. 808
• Decision Date: 12 September 1941
• Docket Number: 13842.
• Parties: WASHINGTON SEMINARY, Inc., et al. v. BASS et al.
• Court: Supreme Court of Georgia

16 S.E.2d 565

192 Ga. 808

WASHINGTON SEMINARY, Inc., et al. v. BASS et al.

No. 13842.

Supreme Court of Georgia

September 12, 1941

Syllabus by the Court.

1. Where a petition by property owners for relief in equity shows that the Board of Zoning Appeals of the City of Atlanta, after a hearing, has granted a permit to an adjoining-property owner to erect and operate a steam laundry on his property, and fails to allege that the petitioners were not served as required by the zoning ordinance and did not waive service, the remedy of the petitioners as provided by the city charter is the writ of certiorari from the superior court; and it not being alleged that a petition for certiorari has been sanctioned, no ground for equitable relief is shown.

2. A steam laundry is not a nuisance per se; and where the petition fails to describe the laundry, its appearance and operation, but makes general averments that it will cause irreparable injury to petitioners' property, such averments are conclusions of law, and constitute no allegations of damages. Therefore the petition is subject to general demurrer.

W R. Hoyt Jr. and Washington Seminary, Inc., brought this action against M. F. Bass and Ralph Didshuneit, alleging as follows: Hoyt owns and occupies as a residence a house and lot known as 1654 Peachtree Street in the City of Atlanta. Washington Seminary owns and occupies land adjoining that of Hoyt on the south, fronting more than 200 feet on Peachtree Street, on which it operates a high-class young ladies seminary and boarding-school, and in which property it has invested more than $100,000 in building and school equipment which can be used only in the operation of this particular school. In addition to its physical properties, Washington Seminary has by a long period of continuous operation and advertisement built a reputation and good will of a high value, but incapable of being measured in dollars. Peachtree Street has for many years been the most important residential street in the city, and petitioners' properties are located on the most desirable portion of that street and are surrounded by very costly residences. Bass owns property located immediately north of and adjoining the property of Hoyt, on which is located an expensive dwelling-house. Bass has caused the tenant to move, has placed building materials thereon, has asserted his intention to erect a steam laundry thereon, and has caused a large sign in the following language to be placed on his property: 'The new home of Brookwood Laundry. Being erected by Ralph Didshuneit, general contractor, Candler Bldg., Atlanta.' Didshuneit is engaged in the contracting business, and has entered into an agreement with Bass to erect the building constituting the steam laundry upon this property, which neither he nor Bass has any legal right to do. At a hearing before the Board of Zoning Appeals of Atlanta Bass stated that he intended to erect a commercial building in which would be housed and operated a steam laundry, and after said hearing the Board of Zoning Appeals authorized the building of such a laundry, notwithstanding the objection of adjacent-property owners then and there present. 'The determination of the Board of Zoning Appeals to permit a steam laundry to be put on the said lot was illegal and void, because (1) there was no public notice of any kind filed; no sign was put upon the lot, nor otherwise was the public notified; (2) there was no public hearing to which interested parties were invited or informed was to be held; (3) the judgment of the board zoning the said property was arbitrary and unreasonable, because a laundry at this place would not substantially serve the public convenience or welfare; and because the same would permanently injure the appropriate use of neighboring property; and because the owners of property located within 100 feet of the property about to be re-zoned must be personally served with written notice, and Mr. Chas. H. Black owned the adjoining property, and was not served until after the property had been re-zoned, and because Montgomery-Ward a corporation, was the owner of property located within less than 100 feet, and was not served. For these reasons, and may others, the attempt to re-zone this property so that it may be used for industrial purposes and especially to put a steam laundry thereon is illegal and void.' The proceedings by the Board of Zoning Appeals were void for the additional reason that the zoning law of the City of Atlanta, under which the board pretended to act and under which it was pretended to grant authority to erect the laundry, is illegal and void, because it is violative of the constitution of the United States and the constitution of Georgia; for that it permits taking of private property for public use without just compensation, and is a denial of the equal protection of the laws.

In paragraph 4 of the petition it was alleged: 'Acting through the aid of others, the said defendant Bass made an application to the City Planning Commission of the City of Atlanta to permit said property to be re-zoned so that industrial enterprises might be erected upon the property. In paragraph 7 it was alleged: 'The City Planning Commission has a rule known as section 2 of the city ordinance establishing said commission, and a copy of the same is hereto attached as 'Exhibit A' and embodied herein as a part hereof, which requires a notification of property owners contiguous to the said property about to be zoned, and that a sign be erected upon the property notifying or stating the fact that application for the re-zoning of said property was to be made, and when and where, and also giving public notice of a time and place for a hearing more than ten days in advance; and petitioners say that the notice so required was not given, and no sign was put upon the property, and no newspaper notice published. Petitioners aver that all of the abutting property owners were not notified, and that only two persons were notified that a hearing would be had to rezone this property; and that these persons were not notified within the time provided by said rule, to wit, by giving them ten days notice.' It was further alleged that a laundry on defendant's property immediately on its street in front of the plaintifs' properties would destroy the value of their properties, constitute a continuing nuisance, and cause damage incapable of accurate estimation in money; that their properties would be destroyed as high-class residential property and be rendered incapable of their present use; that in the case of Washington Seminary, its buildings are especially constructed for school purposes, and would be practically worthless and the school would be seriously injured; that the presence of a steam laundry at this place would constitute a nuisance per se; and petitioners deny that the City of Atlanta or any of its agents, and especially the Board of Zoning Appeals, have any lawful power to grant any such permit, even under the rules of the zoning board, because they failed to comply with the rule as to notice required before the board could make a rezoning of property in the City of Atlanta; that the petitioners are without an adequate remedy at law, and only in a court of equity, where they may obtain injunctive relief and other equitable remedies, can they obtain adequate relief, because if the laundry is permitted to be erected their properties will be seriously and permanently injured, and the damage will be irreparable; that their properties would be injured and destroyed to the extent of many thousands of dollars, and they would be put to vexatious litigation to recover the same; and that the defendants might be unable to answer in damages to the extent which plaintiffs might suffer. The prayers were, for injunction restraining defendants from proceeding in any wise to erect any business structure upon the lot or erecting or operating a laundry or other industry thereon; that the zoning ordinance be decreed unconstitutional and void; and for general relief.

By amendment it was alleged that the powers sought to be exercised by the Board of Zoning Appeals violate article 1, section 1, pars. 1 and 3, of the constitution of Georgia and the 5th and 14the amendments of the constitution of the United States, in that the amendment of the...