175 Ga. 667 | Ga. | 1932
Joseph A. McCord and others, owners of residences and residential property on Peachtree Street near the corner of Seventh Street in the City of Atlanta, brought a petition seeking injunction against the operation by the defendants of an undertaking establishment on premises located at or near the corner of Peachtree and Seventh Streets. Among other things the petition alleged that the defendants propose to create and maintain such an establishment under the authority of a decision of the Board of Zoning Appeals granting them a special permit for such use, the decision having been rendered at the conclusion of a hearing by such board on the application of defendants; that upon decision adverse to the complainants they filed their petition for certiorari to review the same; that the petition for certiorari had been sanctioned, and contained, it is insisted, good and sufficient grounds for reversal of the decision, but it had not been reached for a hearing in the superior court in its regular order, and had not been heard and decided. Evidence was introduced to sustain the allegation with reference to the filing and sanctioning of the certiorari and the fact that it had not been reached for a hearing. The petition also attacked the lawful authority of the Board of Zoning Appeals to grant the permit referred to, and specifically attacked as invalid the section of the zoning ordinance delegating such power to the board. The petitioners prayed that the intended use of the property be restrained until such certiorari had been heard and determined. ' A temporary restraining order was granted, and at the time fixed for hearing the application for injunction the judge of the superior court rendered the following decision: “Plaintiff conceding that the grant of a certiorari did not prevent the operation of the benefits granted under the judgment of the Zoning Commission, and the court being of the opinion that the Zoning Commission has exclusive jurisdiction to grant or refuse a permit for the
The court did not err in refusing the injunction sought. The Board of Zoning Appeals, which is also designated the Zoning Commission, had the authority, under ordinances passed by the city authorities, to grant the permit, after a hearing, which had been applied for by the .defendants in the case; that is, a permit to conduct an undertaking establishment on the premises in question. Under a constitutional amendment adopted in 1927 (Ga. L. 1927, p. 129), the legislature was authorized to grant to the governing authorities of the City of Atlanta and other named cities “authority to pass zoning and planning laws whereby such cities may be zoned or districted for various uses and other or different uses prohibited therein, and regulating the use for which said zones nr districts may be set apart, and regulating the plans for development and improvement of real estate therein.” Pursuant to the authority conferred by such constitutional amendment, the legislature passed an amendment to the charter of the City of Atlanta (Ga. L. 1929, p. 818). Section 18 of this amendatory act provides: “The mayor and general council may, in the interest of public health, . . adopt by ordinance a plan or plans for the districting or zoning of the city. . . The city may be divided into such number of zones or districts . . as the mayor and general council shall deem best suited to accomplish the purposes of the zoning ordinance. . . In the determination and establishment of districts and regulations, classifications may be based on the nature or character of the trade . . to be conducted on the premises. . . No ordinance adopting zoning regulations as above authorized shall be passed by the mayor and general council until after a comprehensive plan for the zoning of the city has been prepared and submitted to the mayor and general council by the City Planning Commission. . . No ordinance, measure, or regulation which violates, differs, or departs from the plan or report submitted by the City Planning Commission shall take effect unless passed by a three-fourths vote of the mayor and general council. The mayor and general council may, from time to time, amend or change the regulations or districts established by the zoning ordinance; but no such amendment or change shall become effective unless the ordinance proposing such amendment or change shall be first sub
In pursuance of the powers conferred by the legislative act referred to, the mayor and council of the City of Atlanta passed a zoning ordinance, and in the 10th section of that ordinance it is provided that "The Board of Zoning Appeals may in a specific case, after public notice and hearing and subject to appropriate conditions and safeguards, determine and vary the application of the use district regulations herein established, in harmony with their general purposes and intent, as follows: Permit the location of a Class TT-'Í' use in any use district, provided such use in such location will in the judgment of the Board of Zoning Appeals substantially serve the public convenience and welfare, and will not substantially and permanently injure the appropriate use of the neighboring property.” The plaintiffs attacked the validity of this section, contending that it was invalid, and that the granting of such authority is not within the power of the mayor and council of the City of Atlanta, under the act of 1929, referred to above, because under the act classifications of property for different uses is a legislative act and must be acted upon by the mayor and council; and' further, that there is no authority in the mayor and council to delegate to the Board of Zoning Appeals the right to locate a Class TJ-7 by specific cases; and further, that the effect of section 10 of such ordinance is to give to the Board of Zoning Appeals the power to classify, zone, or district the city as to uses known as TT-7, whereas such right is exclusively within the power of the mayor and council, to be exercised by ordinance only.
We can not agree to these contentions. It was competent for the general council, under the powers given to it by the act of the Gen
Under the rulings that we have made, this ordinance is not invalid and can not be held to be unreasonable and void. Questions similar to this have been discussed in decisions by many courts, but we will not undertake to cite them here, though a very large number of them
Judgment affirmed.