Cross v. Hall County

235 S.E.2d 379, 238 Ga. 709, 1977 Ga. LEXIS 1173
CourtSupreme Court of Georgia
DecidedApril 27, 1977
Docket31937
StatusPublished
Cited by40 cases

This text of 235 S.E.2d 379 (Cross v. Hall County) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cross v. Hall County, 235 S.E.2d 379, 238 Ga. 709, 1977 Ga. LEXIS 1173 (Ga. 1977).

Opinions

Hill, Justice.

This appeal involves the rezoning of a 250-acre tract owned by Hall Paving Company from residential to industrial to permit the operation of a rock quarry on about 20 acres. Silvey Cross and other neighbors contest the rezoning approved by the Hall County Board of Commissioners. In Hall Paving Co. v. Hall County, 237 Ga. 14 (226 SE2d 728) (1976), we held that the Board of Commissioners need not enter findings of fact and conclusions of law to justify its rezoning action. Upon [710]*710remand the trial court reached the merits of the issues raised by plaintiffs’ complaint and upheld the rezoning. Plaintiffs appeal.

1. Plaintiffs contend that the preponderance of the evidence was against the rezoning and that the board’s action in rezoning the property therefore violated Barrett v. Hamby, 235 Ga. 262 (219 SE2d 399) (1975). In Barrett v. Hamby, supra, this court said (p. 265): "As the individual’s right to the unfettered use of his property confronts the police power under which zoning is done, the balance the law strikes is that a zoning classification may only be justified if it bears a substantial relation to the public health, safety, morality or general welfare. Lacking such justification, the zoning may be set aside as arbitrary or unreasonable. Nectow v. Cambridge, 277 U. S. 183, 188 (1928).” Plaintiffs argue here that this rezoning should be set aside as a violation of the above test.

Barrett v. Hamby, supra, as amplified in Guhl v. Holcomb Bridge Rd. Corp., 238 Ga. 322 (232 SE2d 830) (1977), set forth the test for determining whether the county’s denial of an application to rezone was sustainable in court. We must now determine whether that test is applicable to the grant of an application to rezone. The answer to this inquiry involves reexamination of the leading cases in this area.

In the landmark case of Village of Euclid v. Amber Realty Co., 272 U. S. 365 (47 SC 114, 71 LE 303) (1926), the Supreme Court upheld the validity of a municipal zoning ordinance attacked by a landowner on 14th Amendment due process and equal protection grounds. The landowner argued that the zoning ordinance deprived him of the use of his property so as to confiscate and destroy its value. The court examined the reasons for zoning and found the ordinance to be a valid exercise of the police power, saying (272 U. S. at 395):"... the reasons are sufficiently cogent to preclude us from saying, as it must be said before the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”

[711]*711In Nectow v. Cambridge, 277 U. S. 183 (48 SC 447, 72 LE 842) (1928), the court found a zoning ordinance to be invalid in a suit brought by a property owner who alleged that the ordinance deprived him of his property without due process. There the court said (277 U. S. 188): "The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare.” We followed Nectow in Barrett v. Hamby.

Thus, we start from the proposition that a property owner may use his property as he sees fit, subject to such rights as others, including governments, may have to control the owner’s use. In the case before us, the property owner could quarry rock upon its property except that the zoning ordinance previously in effect prohibited such operation. The property was rezoned.

Neighbors complained about this zoning change. They have standing to complain. These neighbors (plaintiffs) have not shown that the value of the property they own has been confiscated and destroyed. They have not shown that they have been deprived of the use of their property without due process of law. They have not shown a denial of equal protection or any other violation of their constitutional rights.

Neighbors of rezoned property cannot invalidate the rezoning by showing that the preponderance of the evidence was against the zoning change. When neighbors of rezoned property challenge the rezoning in court on its merits, it will be set aside only if fraud or corruption is shown or the rezoning power is being manifestly abused to the oppression of the neighbors. Hudspeth v. Hall, 113 Ga. 4, 7 (38 SE 358) (1901); Kirkpatrick v. Candler, 205 Ga. 449, 455-456 (53 SE2d 889) (1949); Morgan v. Cherokee Hills Development Co., 226 Ga. 60, 63 (172 SE2d 669) (1970); 2 Rathkopf, The Law of Zoning and Planning (3d Ed.), 65-1 (1964); 8A McQuillin, Municipal Corporations (3d Ed.), § 25.279 (1976).1 Having failed to show any [712]*712constitutional right of theirs being abridged by the zoning change, having failed to show fraud, corruption or manifest abuse of the zoning power, the plaintiffs have not shown error by the trial court in approving the rezoning.

2. Plaintiffs also contend that the rezoning was illegal for another reason, namely, that it was the result of an illegal agreement between Hall Paving Company and the Board of Commissioners. At the hearing before the Commissioners on the rezoning application, several of the neighboring landowners who opposed the rezoning mentioned that the road leading to the quarry needed paving. The president of Hall Paving Company offered to resurface the road. No further action was taken and the hearing was recessed for lunch. When the meeting resumed, one of the Commissioners asked, "Didn’t you say you would resurface the road?” When the president replied in the affirmative, the rezoning resolution was passed "provided that [Hall Paving Company] will agree to resurface the road.” Plaintiffs contend that this rendered the rezoning invalid.

Generally, courts declare conditional zoning to be valid, unless the conditions constitute contract zoning which will be declared invalid. Miller, Wm. S., "The Current Status of Conditional Zoning,” Institute on Planning, Zoning and Eminent Domain 121 (1974); Anderson, American Law of Zoning §§ 8.20, 8.21 (1968); see also 3 Rathkopf, Law of Zoning and Planning, 74-9 (1960); Trager, "Contract Zoning,” 23 Maryland L. Rev. 121 (1963); Schaffer, "Contract Zoning and Conditional Zoning,” 11 Practical Lawyer No. 5, p. 43 (1965).

Conditional zoning has been found to be valid in Georgia. Ervin Co. v. Brown, 228 Ga. 14 (183 SE2d 743) (1971).

Having determined that contract zoning is invalid and that conditional zoning is valid, we must avoid deciding first whether the zoning is valid or invalid and [713]*713then declaring that the invalid zoning is contract zoning and the valid zoning is conditional zoning. Moreover, the distinction between contract zoning and conditional zoning is not whether there was offer, acceptance and consideration.

Conditional zoning is rezoning subject to conditions which are not applicable to other land similarly zoned. Anderson, supra, § 8.20; Miller, supra.

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Bluebook (online)
235 S.E.2d 379, 238 Ga. 709, 1977 Ga. LEXIS 1173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cross-v-hall-county-ga-1977.