The appeal here is from the grant of an injunction restraining the defendant-owners from taking any action to implement zoning ordinances enacted by the defendant Commissioners of Fulton County and from performing any construction, grading, tree cutting, or any similar or related activity with respect to several described tracts of land as purportedly authorized by said ordinances. Involved are several tracts of land which were separately treated by the commissioners in the ordinances passed on July 16, 1971. The plaintiffs complain because the ordinances rezoned all of the tracts involved from a higher to a lower use, in general, permitting more intensive use of the land. The trial court, in the order and judgment appealed from, held the ordinances invalid on the basis of one specific attack made by the plaintiffs, and expressly rejected other grounds of attack. The owners of the property sought to be rezoned appealed, and the adjoining landowners filed a cross appeal complaining of those portions of the final judgment which ruled adversely to their other contentions respecting the validity of the zoning ordinances. The specific nature of the contentions will be dealt with more fully in the opinion.
The plaintiffs in the trial court are residents of Fulton County and owners of property located within 300 feet of the property which is the subject of the zoning ordinances under attack. The defendants named in the complaint are the Commissioners of Fulton County, the Director of the Department of Inspections and Licenses of Fulton County, all sued in their official and individual capacities, Charles Barton, Nautilus North River Realty Inc., and George H. Johnson, Powers Ferry Land Company, and F. H. Gilgore, Jr., the latter three d/b/a North River Partnership. The
It appears that it was only after the county commissioners determined that they would approve the rezoning of the property in question subject to the restrictions embodied in this instrument that the residents and owners of property in the area desisted from their opposition to the rezoning in 1968. Plaintiffs contend that the 1968 zoning and the restrictive covenant excluded apartments from the area lying to the north of Interstate Highway 285, and that the rezoning here has reintroduced apartments into that area contrary to the 1968 zoning and restrictive covenant, and that the reclassification of the land prior to January 1, 1988 (the date to which the covenant is declared to run) was a violation of the covenant and, therefore, void. Such other conten
By the Act approved April 10, 1971 (Ga. L. 1971, p. 3662) the legislature changed the zoning procedures in counties having a population of 500,000 or more persons, of which Fulton County is one, so as to require the director of the planning departments of such counties to furnish a copy of each application for rezoning to the public works department, the department of public health and the board of education of such counties. The Act provides: "Each department in such counties . . . shall render a report detailing the effect the zoning change will have on the operation of their respective departments. Each department in such counties . . . shall submit a report to the board of commissioners . . . and to the joint zoning boards
which shall be read at each public hearing.
Each departmental report shall become a permanent part of the zoning application in such counties . . . Each department submitting a report to the board of commissioners . . . and the joint zoning boards shall contain certain information concerning the effect of the zoning change on the schools, sewerage service and streets in such counties . . .” Ga. L. 1971, p. 3663. (Emphasis supplied.) The trial judge found as a fact that the reports required to be rendered by the Fulton County Board of Education, the Fulton County Public Works Department and the Fulton County Department of Public Health under the provisions of the above quoted law were submitted by each of said departments with respect to each of the parcels of property sought to be rezoned. He also found that the reports of these departments with respect to each parcel of land sought to be rezoned were read by the zoning administrator of Fulton County, Georgia, at the public hearing held before the Atlanta-Fulton County Joint Planning Board on June 30, 1971. He further found, however, that while these reports were filed in the office of the Clerk of the Board of Commissioners of Fulton County, as a part of the petitions in each case such reports were not in fact read at the public hearing held by the Board of Commissioners of Fulton
It would seem that, ordinarily, the requirement of the Act that the reports of the Board of Education, the Public Works Department and the Department of Public Health of the county "shall be read at each public hearing” would be unambiguous and admit of no construction, for the general rule is that where "the language of a statute is clear, direct, and positive, leading to no absurd results, and affording a suitable, if not a sufficient remedy for an existing evil, courts should be governed by the obvious meaning and import of its terms.”
Ezekiel v. Dixon,
"To give effect to the intention of the legislature, courts are not controlled by the literal meaning of the statute, but the spirit or intention of the law prevails over the letter thereof.
Erwin v. Moore,
So, this court has held that language contained in a statute which, given its ordinary meaning, commands the doing of a thing within a certain time, when not accompanied by any negative words restraining the doing of the thing afterward, will generally be construed as merely directory and not as a limitation of authority, and this is especially so where no injury appeared to have resulted from the fact that the thing was done after the time limited by the plain wording of the Act.
O’Neal v. Spencer,
How, then, stands the statute which we have before us when viewed in the light of these rules of statutory interpretation? The statute directs that a copy of each application requesting a zoning change shall be furnished to the Board of Education, the Public Works Department and the Department of Public Health in order that those departments may report to the authority charged with the duty of enacting amendments to the zoning ordinance as to the effect such proposed changes shall have on the operation of their departments. It is obvious that the vice sought to be corrected by this statute is the passage of amendments to the zoning ordinances by the Board of Commissioners without their taking into account in their deliberations the effect the proposed change will have on the operation of these departments. The essence of the law is the requirement that the commissioners or other body having the responsibility of enacting such legislative changes in the zoning ordinance shall be furnished such information prior to acting on the proposed changes. The reading of these reports at the public hearings is not of the essence of the law. The furnishing of the information to the law-making body is of the essence. This is so because the Act is completely silent as to any requirement that such reports be read at each public hearing as a prerequisite of the authority of the Board of Commissioners to act. It does not expressly declare
We, therefore, hold that the failure of the board to read the reports of the Board of Education, the Public Works Department and the Department of Public Health of Fulton County was not such a defect in procedure as would invalidate the action of the board in rezoning the property in question. The record shows that these reports were filed prior to the public hearing held before the Atlanta-Fulton County Joint Planning Board on June 30, 1971, and were subsequently filed in the clerk’s office of the Board of Commissioners as a part of the petitions to rezone the properties. Whether the appellees knew of these reports or of their contents is immaterial, since, as we have held, the purpose of the reports is to inform the officials charged with the duty of acting on the applications to rezone. Admittedly, these reports were adverse to the action taken and would have tended to support the arguments of the appellees. However, even if the appellees were not informed of the existence of these reports or of their contents at the time of the public hearing before the Board of Commissioners, the only harmful effect the lack of such information could have had would have been to deny them the opportunity to have included in their argument to the Board of Commissioners the reasoning behind these reports in support of their opposition. This is not such a substantial right
We now turn to the questions presented by the cross appeal. As we have already noted, the cross appellee Barton sought to have a portion of the property involved here rezoned in 1967 and 1968. As one of the conditions to granting the rezoning in 1968 the then Board of Commissioners required Barton to execute the "Declaration and Covenant of Restrictions for North River Development” referred to in the statement of facts. This instrument was executed by Barton on April 18, 1968, with the formality of a deed and was recorded by the Clerk of the Superior Court of Fulton County and indexed as a deed record in his office. In it Fulton County is named as a party "for the purpose of enforcing these covenants” and is authorized thereby to proceed in law or in equity to require compliance on the part of any violator of the covenants. Also, authorized to enforce it are the owners of any land or buildings or interest therein included within the area subject to the covenant. The right of such owners to enforce the covenant is restricted to the owners within the use area where the violation or threatened violation occurs. "For example, if a violation of these covenants occurs in the village center area, these covenants may not be enforced by anyone other than an owner of property in the village center area, etc., and Fulton County.” Barton, who is therein denominated as the "Covenantor” and described as the owner of the property to which the covenant relates, declared and covenanted that the property was then held and should thereafter be held and occupied subject to the restrictions set forth therein, and he declared the instruments to be a covenant running with the land and to "remain in effect until January 1, 1988, unless altered or modified as hereinafter provided.” It provides "the requirements listed herein shall not be altered,
It will thus be seen from the foregoing summary of its provisions that, regardless of what motivated its execution, and regardless who the parties had in mind to benefit thereby, the instrument as finally drawn and filed shows on its face that it was intended to "inure to the benefit of and pass with each and every parcel of said property [described therein] and shall apply to and bind the heirs, assignees and successors in interest of any owner thereof,” and had as its purpose the protection of the owner or lessee of each parcel of said property described therein. By its very terms it excluded from its protection all others. In this regard it is unambiguous and admits of no construction, and the courts are bound by and must give elffect to its terms unless to do so would violate some rule of public policy. Thus, it will be seen that adjoining or neighboring landowners who were not parties to the instrument, and who are neither owners, lessees or tenants of any parcel of property covered by the instrument have no standing to enforce the same.
In the covenant Barton expressly retained the right to modify it "after approval by the commission of Fulton County.” He undoubtedly had this right.
Thompson v. Glen-
The cross appellants contend that the failure of the county to strictly comply with the requirements of the zoning ordinance respecting service by mail on all property owners within 300 feet of the subject property of notice of the proposed rezoning voids the zoning ordinances which are here under attack. This contention is based upon the undisputed fact that one of the nearby property owners, Col. Andrew Meulenberg, was not served by mail with notice of the proposed rezoning as required by Art. XXVIII,
The final contention of the cross appellants is that the zoning ordinance of July 16, 1971, is arbitrary and capricious and, therefore, void. As we have already noted, zoning is strictly a legislative function of the body having the power to zone. Whether or not a particular application to rezone will be granted or denied rests solely within the discretion of the Board of Commissioners of Fulton County. So long as the procedural requirements of the law are complied with, the courts will not undertake to control the exercise of that discretion in the absence of a clear showing of an abuse thereof.
Addis v. Smith,
It follows that none of the grounds of enumerated error made on the cross appeal is meritorious and the judgment appealed from on cross appeal must be affirmed.
Judgment reversed on main appeal; affirmed on cross appeal.