This is a zoning case. Skelton owns a tract of land in Hall County presently zoned “Highway Business.” The Board of Commissioners of Hall County denied his request to rezone the property to *856 Agricultural-Residential III so that he could use his property as a site for three mobile homes, and he appealed to the Superior Cоurt, which found the zoning classification of Skelton’s property to be unconstitutional. The court orderеd the Board of Commissioners to rezone the property from Highway Business to Agricultural-Residential III in a cоnstitutional manner. The court gave the Board 30 days to do so, reserving jurisdiction to declare the prоperty free from all restrictions if the rezoning is not done within a reasonable time. The Board appeals.
(1) This court set out the following general lines of inquiry for determining the validity of a zoning ordinance in
Guhl v. Holcomb Bridge Road,
Using these lines of inquiry as a starting point, the individual’s right to the unfettered use of his property must be balanced against the police power under which the zoning is done. The zoning classification must bear a substantial relation to the public health, safety, morality or general welfare or it will be set aside as аrbitrary or unreasonable. The zoning classification may be set aside “. . . if [it] results in relatively little gain or benefit to the public while inflicting serious injury or loss on the owner...”
Barrett v. Hamby,
Following the guidelines of
Guhl,
supra, the trial court made these relevant findings of fact: (1) nearby рroperty — lots adjacent to appellee’s property and lots directly across the highwаy from his property — is zoned Agricultural-Business III, and much of that property is used for residential purposes аnd as sites for mobile homes; (2) many of the nearby properties which are zoned for Highway Business have residences and mobile homes on them as pre-existing uses; (3) while appellee’s property is zoned for Highway Business, it does not front on the highway, it is located between 100-500 feet from the highway, and it is separated from the highway by a service station; (4) appellee’s property has been zoned for
*857
Highway Business for over ten years, yet it still remains vacant for those purposes; (5) appellee wants to use his рroperty as a site for three mobile homes. These findings are supported by the record. Since thеse findings of fact are not clearly erroneous, they may not be set aside by this court.
City of Atlanta v. McLennan,
*857 Based upon these findings and other facts which appeared in the record, the trial court reached the following conclusions: (1) the subject property is not suitable for Highway Business purposes; (2) except for somе of the property which actually fronts on the highway, the surrounding property in the area is essentially usеd for residential purposes; (3) the public receives little if any gain from the present zoning classification while the appellee is prevented from putting his land to any suitable use; (4) because the zoning classification is insubstantially related to the public welfare and significantly detrimental to appellеe, it is arbitrary and unreasonable, and it must be struck down. We agree with these conclusions.
Appelleе provided ample proof in the record that this zoning classification significantly damages his property. Because of its location, the property is useless for its zoned purposes. No countervailing benefit to the public from this zoning classification of appellee’s property apрears in the record. Although appellants argue that rezoning this property may create a рotential safety hazard, the evidence supporting this position is too vague and insubstantial to offsеt the serious loss suffered by appellee. Since this zoning classification seriously damaged appellee’s property and is not substantially related to the public health, safety, morality or general welfare, the trial court correctly found this classification unconstitutional.
(2) Appellant contends that even if the present zoning classification is unconstitutional, the court erred in ordering it to rezone in a specific manner. We agree. The court should have remanded to the Board to let it rezone the property. Then, if the Board failed to accomplish this purpose within a reasonable time, the court could, as a last resort, declare the property to be free of zoning restrictions.
City of Atlanta v. McLennan,
Judgment affírmed in part; reversed in part.