Whipkey v. Turner, 16886

Decision Date09 January 1950
Docket NumberNo. 16886,16886
Citation206 Ga. 410,57 S.E.2d 481
PartiesWHIPKEY et al. v. TURNER et al.
CourtGeorgia Supreme Court

Syllabus by the Court.

1. Allegations that a city ordinance purporting to amend an existing zoning ordinance, and a building permit issued pursuant thereto, are 'null and void' and should be so 'adjudged', are insufficient to state a cause of action for injunctive relief, or any equitable relief, against the city.

(a) The holder of a building permit (alleged to be null and void) can not be enjoined from constructing the building authorized by the permit until he has performed some act evidencing an intent to exercise the rights and privileges of the permit. The petition in this case does not allege any act by the defendant pursuant to the building permit.

2. Parties with knowledge that a building may be constructed pursuant to an ordinance and permit of a city (which ordinance and permit may be invalid), must be diligent and act promptly to protect their rights.

(a) Where, as in this case, the parties delayed bringing their action until such time as the defendant had expended large sums for materials and labor, and the building had progressed substantially according to the plan thereof, the plaintiffs are estopped by their acquiescence, or failure to proceed promptly.

Robert Lee Turner and Charles J. Alliffi filed a petition for equitable relief against Winifred H. Whipkey and the Mayor and Aldermen of the City of Savannah. Subsequently, by intervention duly allowed, nine additional parties became plaintiff to the action. In substance the petition alleged: The plaintiffs are residents and property owners in zoning area 'J', established by a zoning ordinance of the City of Savannah pursuant to the powers conferred upon the City by an act of the General Assembly of 1927, Ga.L.1927, p. 128, which act does not authorize the city to alter, revoke, or rescind a zoning ordinance or any part thereof. Only residences, apartments, and churches may be erected in zoning area 'J'. The city has not adopted the provisions of the act of the General Assembly of 1946, Ga.L.1946, p. 191, providing for the amendment, revocation, alteration, and rescission of zoning ordinances, and such act is not in effect in the city. On July 29, 1949, an amendment to zoning area 'J' was adopted by resolution of the mayor and aldermen of the city, approving the erection of a drugstore on lot 23. On August 13, 1949, pursuant to the resolution, a building permit was duly issued to the defendant Whipkey by authorities of the city. The action of the city in creating a separate zone of a single lot in an isolated area is unreasonable, discriminatory, arbitrary, and in violation of the zoning ordinance, and will tend to damage the plaintiffs by lowering the value of their property and other property in the area. The resolution and the building permit issued pursuant thereto should be adjudged null and void. The conduct of the defendant Whipkey and the city amounts to a threatened or existing tort, is illegal and contrary to equity, and no adequate remedy is provided by law. The injury complained of is irreparable in damages. It can not be measured by pecuniary standards. 'The operation of the general rules of law would be deficient in protecting from the anticipated wrongs of this violation of the said zoning ordinance.'

The plaintiffs prayed: (1) that a rule nisi issue requiring the defendants to show cause why they should not be enjoined and restrained from the erection and operation of a drugstore; (2) that a temporary injunction be issued against the defendant Whipkey, enjoining and restraining her from the erection of the building; (3) that the defendants be permanently enjoined from erecting or permitting to be erected a store building in area 'J'; (4) that process issue; and that the plaintiffs be granted other and further relief as may be proper in the premises.

Both defendants filed general demurrers to the petition, and demurred specially to the allegations of paragraph 6, that the conduct of the defendants 'amounts to a threatened or existing tort, is illegal and contrary to equity and good conscience, and that no adequate remedy is provided at law for petitioners.'

The defendant Whipkey filed an answer, in which she asserted that the ordinance amending zoning area 'J', passed by the city, was a valid ordinance. She admitted that a building permit had been issued to her, and denied other material allegations of the petition. For further answer she alleged: About the first of the year, 1949, citizens of the subdivision contacted her husband, requesting that he erect a drugstore for the convenience of the neighborhood, and subsequently, in April, 1949, a house-to-house canvass was made, and approximately 110 property owners and residents joined in a petition to the city to permit the erection of a drugstore in the particular subdivision. The defendant thereupon negotiated for the purchase of a lot at a stipulated consideration, to be consummated if it was determined that the lot could be used for the erection of a drugstore. The only instrumentality whereby the defendant could obtain permission to erect a drugstore was the building and zoning committee of the Mayor and Aldermen of the City of Savannah. The committee had been exercising such authority and discretion, and no question as to their authority to 'dezone' had ever been raised. The defendant had a right to assume that the municipality was acting within its charter powers. After due advertisement, the building and zoning committee held three public hearings on the necessity for a drugstore in the neighborhood, and after due hearing, and in the exercise of its discretion, the committee recommended that the petition be granted. The plaintiff's attended these hearings in person or by counsel. On second reading, an ordinance was duly passed on July 29, 1949, permitting a drugstore to be erected and operated on the lot described. Acting solely by reason of the ordinance permitting the construction of a drugstore, the defendant consummated the purchase of the property, secured a building permit, and commenced the building of a drugstore. Certain work has been done in the construction of the building, over 15,000 bricks have been laid, and the cost of labor and materials to date is approximately $8000. The defendant has acted in good faith, and it would be inequitable and unjust for the defendant to lose her investment, which could result in no benefit to the plaintiffs. Certain of the plaintiffs do not reside in zoning area 'J', and the value of the property of others would not be affected by the presence of a drugstore. The plaintiffs have not acted in good faith for the reason that, when the defendant secured a building permit, wide publicity to the granting of the permit was given in a local newspaper; the defendant spent large sums of money in improvement of the grounds and building; the work was done openly in the full view of the public and in the particular view of the plaintiffs, and she had no notice of any objection on the part of the plaintiffs until just before the present suit was filed. The plaintiffs are not entitled to an injunction. With full knowledge of their rights they have been guilty of laches in asserting them, and they have allowed large expenditures to be made by the defendant, who was acting in good faith. She prayed that the relief sought by the plaintiffs be denied, and that she be discharged.

On the hearing for interlocutory injunction, Mrs. Libby Cohen, Robert Lee Turner, Mrs. Emma S. Holt, and Carl S. Ashcraft testified for the plaintiffs. In substance their testimony was to the effect: That they were residents of the zoned area or resided in the immediate neighborhood. They had signed petitions protesting the application to rezone lot 23, on which the drugstore was proposed to be erected, and a majority of them had attended the hearings. The election of a drugstore would injure the value of the property of the plaintiffs and others in the neighborhood. Two or more of the witnesses testified that they had read in a local newspaper an article to the effect that the defendant had no right to build a drugstore in the locality. An attorney of record for the plaintiffs testified that he had examined the city records to see whether or not any valid enactments or ordinances had been passed by the mayor and aldermen; he had made inquiry to find whether an act or resolution was enacted pursuant to the act of 1946; and in so far as he knew or believed, the original zoning ordinance of area 'J' was still in effect. On cross-examination, he testified that there had been a great many resolutions passed by the mayor and aldermen in which they undertook to change or alter zoning areas which had been established. All of these acts were ultra vires.

The defendant, Mrs. Whipkey, testified in her own behalf that she had been acting through her husband, that she did not attend any meetings of the Mayor and Aldermen of the City of Savannah, and knew nothing of what was done except through her husband. Robert J. Warrick testified for the defendants: That he lived next door to the drugstore being erected, and it was his opinion, from the type of construction of the building, that it would have a tendency to elevate the value of his property. He is a real-estate agent. He did not know how far the construction of the building had progressed. The husband of the defendant testified: That he was a registered pharmacist. He had been requested to build a drugstore in the...

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    ...v. Darnell, 94 Ga. 231, 21 S.E. 531; Wood v. Macon & B. R. Co., 68 Ga. 539; Holt v. Parsons, 118 Ga. 895, 45 S.E. 690; Whipkey v. Turner, 206 Ga. 410, 57 S.E.2d 481; Head v. Crouch, 207 Ga. 648, 63 S.E.2d 647; and many other decisions, Zucker might be found by the jury to be estopped to com......
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