Addis v. Smith

166 S.E.2d 361, 225 Ga. 157, 1969 Ga. LEXIS 411

• Court: Supreme Court of Georgia
• Decided: February 20, 1969
• Docket: 25002
• Status: Published

Opinions

Frankum, Justice.

1. The complaint in this case seeks merely the grant of a mandamus to compel some of the defendants who are the Mayor and members of the council of the City of East Point to re-zone a described tract of land located in the city from commercial to multi-family residential so as to authorize the erection thereon of apartment houses, and to compel the other defendant, Addis, who is the building inspector of the City of East Point to issue to the plaintiffs a building permit for the purpose of enabling them to erect apartment houses on their property. While the complaint does contain allegations to the effect that under the facts and circumstances of the case, as set forth therein, the application of the zoning ordinance of the city to the plaintiffs’ property is unconstitutional and void for stated reasons, the complaint neither seeks, nor did the court grant relief declaring such ordinance to be unconstitutional or void. The judgment appealed from is merely one granting the plaintiffs a mandamus absolute, and ordering the defendants, the Mayor and Council of the City of East Point “to rezone the property described in the plaintiffs’ petition from ‘C-l’ to ‘R-3,’ ” and ordering the defendant, B. W. Addis, “to issue a building permit forthwith for the construction of apartment units on the land described in the petition in accordance with ‘R-3’ zoning ordinance of the City of East Point, Georgia.” In rendering such a judgment the judge of the superior court exceeded his power and authority. It is fundamental that the power to zone or re-zone property is conferred by the Constitution upon the “governing authorities” of the various municipalities, and that in matters of zoning the exercise of judgment and discretion on the part of the body upon whom the power is conferred is involved. No court can substitute its judgment for the judgment of the mayor and council in such matters. These principles are supported by the following cases: Richmond County v. Steed, 150 Ga. 229, 232 (103 SE 253); Thomas v. Ragsdale, 188 Ga. 238, 239 (3 SE2d 567); Hunt v. McCollum, 214 Ga. 809, 810 (108 SE2d 275); Vulcan Materials Co. v. Griffith, 215 Ga. 811, 814 (114 SE2d 29).

Argued- January 14,1969 Decided February 20, 1969 Rehearing denied March 6,1969.

2. To sustain the judgment of the trial court in this case the appellees rely principally upon the case of Tuggle v. Manning, 224 Ga. 29 (159 SE2d 703). Nothing in that case requires a ruling different from that which we here make. What was ruled in the Tuggle case was merely that the complaint set forth facts which, if proved upon the trial of the case, would authorize a jury to find that the application of the zoning ordinance of DeKalb County was arbitrary and unreasonable as it affected the plaintiff’s property, and therefore void, and that upon such a finding there would be no zoning regulation at all applicable to the plaintiffs’ property, and it would then be appropriate to require by mandamus that the building inspector issue a building permit. That case is, therefore, clearly distinguishable from this case.

Judgment reversed.

All the Justices concur. Archer, Patrick & Sidener, James H. Archer, Jr., R. William Hamner, for appellants. Long & Siefferman, Calhoun A. Long, Floyd E. Siefferman, Jr., for appellees.