Jones v. City of Marietta

285 S.E.2d 730, 248 Ga. 773, 1982 Ga. LEXIS 682

• Court: Supreme Court of Georgia
• Decided: January 7, 1982
• Docket: 38137
• Status: Published

Opinion

Marshall, Justice.

In this case, the appellant was enjoined from maintaining on his premises dismantled or junked motor vehicles in violation of § 9-3001 of the Code of the City of Marietta.

He appeals, arguing that the foregoing municipal ordinance is unconstitutional on its face and as applied, and that the motor vehicle maintained by him on his property is not dismantled or junked. He also argues that the court below lacked jurisdiction of this case because it had been removed by him to the United States District Court for the Northern District of Georgia.

1. The burden is on the person attacking a zoning ordinance to show that it is unconstitutional. Koppar Corp. v. Griswell, 246 Ga. 539 (272 SE2d 272) (1980). The ordinance under review in this case is not unconstitutional on its face. See generally, City of Smyrna v. Parks, 240 Ga. 699 (242 SE2d 73) (1978) and cits. The appellant has not carried his burden of submitting evidence that it is unconstitutional as applied.

2. The appellant did not seek to remove this case to federal court; and a prior suit brought by the appellant in federal court, in which he asserted the same constitutional claims asserted in the case sub judice, was settled by the parties and dismissed with prejudice.

Decided January 7, 1982. Gordon W. Jones, pro se. Roy E. Barnes, Thomas J. Casurella, for appellee.

3. The evidence presented by the appellee authorized the trial judge in ruling that the appellant violated the municipal ordinance in question.

Judgment affirmed.

All the Justices concur.