Wyman v. Popham, 40269

• Decision Date: 07 March 1984
• Docket Number: No. 40269,40269
• Citation: 312 S.E.2d 795,252 Ga. 247
• Court: Georgia Supreme Court
• Parties: W.H. WYMAN et al. v. Horton POPHAM et al.

Page 795

312 S.E.2d 795

252 Ga. 247

W.H. WYMAN et al. v. Horton POPHAM et al.

No. 40269.

Supreme Court of Georgia.

March 7, 1984.

John L. Coney, Coney & Winn, Douglasville, for W.H. Wyman et al.

W. O'Neal Dettmering, B. Keith Rollins, Douglasville, Richard L. Collier, Griffin, for Horton Popham et al.

BELL, Justice.

Appellee Popham made an application to rezone two lots located in a Douglas County residential subdivision from single family residential to general commercial classification. The Douglas Board of Commissioners unanimously voted to grant the application, and appellants, residents of the subdivision, filed suit to block commercial development of the lots. Their complaint was cast in three counts; in the first two counts, appellants petitioned the court to set aside the rezoning and to enjoin development of the property under the rezoned classification, and, in the remaining count they alleged a claim based upon 42 U.S.C.A. § 1983. In support of their claims appellants alleged, in part, that the rezoning was unconstitutionally arbitrary and unreasonable, that it was a manifest abuse of the rezoning power, and that the votes of two of the commissioners were the product of fraud and corruption. The case came on for trial, and the court subsequently entered judgment dismissing the 42 U.S.C.A. § 1983 claim for lack of subject matter jurisdiction, and denying the remaining claims on the ground that appellants had failed to establish their claims by clear and convincing evidence. The plaintiffs appeal from the entire judgment, raising six enumerations of error. We reverse in part.

1). Appellants' sixth enumeration of error is unsupported by argument or citation of authority, and must be deemed abandoned pursuant to our Rule 45 (Code Ann. § 24-4545).

2). One of the arguments appellants make in their remaining enumerations is that the trial court erred by ruling they had failed to carry their burden to demonstrate that the votes of two members of the three-person board of commissioners were influenced by their financial interest in the rezoning. There was testimony at trial that Popham, who is a real estate developer, is a customer of the two commissioners, and, in particular, that one of the commissioners sells him all of the sand he uses in his business, and that the other does all of Popham's gutter work. The trial judge found that this evidence did not constitute a clear and convincing showing of fraud or corruption. We believe, however, that the court applied too stringent a burden of proof.

Although this court has previously reviewed several zoning suits in which there were allegations of fraud and corruption, the exact issue of the proper burden of proof to impose upon plaintiffs who allege fraud and corruption is one of first impression. For example, in Olley Valley Estates v. Fussell, 232 Ga. 779, 208 S.E.2d 801 (1974), we held that fraud based on self-interested voting in arriving at a zoning decision could be a ground for judicial reversal, and in Cross v. Hall County, 238 Ga. 709(1), 235 S.E.2d 379 (1977), we held that the plaintiffs in that case had failed to show fraud or corruption, id. at 712, 235 S.E.2d 379; however, in neither case did we state how much proof was necessary to show fraud or corruption. Although we found in a later case, Lancaster v. Allen, 242 Ga. 5(1), 247 S.E.2d 746 (1978), that plaintiffs had not overcome the presumption of zoning validity by clear and convincing evidence, id. at 6, we also found that the record in that case was devoid of any evidence of fraud or corruption. Thus, in Lancaster we neither applied the clear and convincing standard to the allegations of self-interested voting, nor considered the appropriate quantum of proof as to that issue. More recently, in Dunaway v. City of Marietta, 251 Ga. 727, 308 S.E.2d 823 (1983), we affirmed the trial court's finding that plaintiffs therein had standing to contest a rezoning decision based on their claim of interest, but reversed the trial court's grant of summary judgment in favor of the defendants on the merits of that issue, holding that under all the circumstances of the case the conduct of the chairman of the planning commission was sufficient to raise a question of fraud or corruption, id. at 728-729, 308 S.E.2d 823. We did not address the issue of the burden which the Dunaway plaintiffs would bear on remand.

However, even though this issue is a novel one, we have on a prior occasion noted the importance of promoting full and fair adjudication of allegations of fraud and corruption, observing that " 'zoning ordinances and regulations should be designed to promote the general welfare and other objectives specified in the statutes, rather than to benefit individual property owners...,' " Olley Valley Estates, 232 Ga. at 782-783, 208 S.E.2d 801, and that " 'the general rule against inquiring into the motives of the legislative body gives way as a matter of public policy where there is an allegation or appearance of corruption or fraud,' " id. at 783, 208 S.E.2d 801. Bearing in mind that fraud is often subtle and difficult of proof, and, in addition, that the integrity of the process of public deliberation is of the utmost importance to the public weal, we will not impose upon those claiming fraud or corruption in the promulgation and administration of zoning ordinances any standard other than that of the preponderance of the evidence.

The evidence in the record now before us is sufficient to authorize--but not require--the superior court to find fraud and corruption by the preponderance of the evidence, and we reverse and remand for reconsideration of that issue in accordance with this standard.

3). Appellants also contend that the court erred by dismissing their civil rights claim. We agree. We have previously interpreted 42 U.S.C.A. § 1983 "to create a cause of action, cognizable by the courts of this state...." City of Cave Spring v. Mason, 252 Ga. 3, 310 S.E.2d 892 (1984). See Davis v. City of Roswell, 250 Ga. 8(1), 295 S.E.2d 317 (1982). The trial court therefore clearly has subject matter jurisdiction to entertain appellants' § 1983 claim, and its dismissal of that claim must be reversed and remanded for further consideration.

4). The remainder of appellants' argument concerns the court's findings that the commissioners did not act arbitrarily and unreasonably so as to deny appellants their constitutional rights, and did not manifestly abuse the rezoning power to the oppression of appellants. Cross v. Hall County, supra. Although appellants raised numerous grounds in this regard at the trial level, the sole contention carried...