131 Ga. App. 198 | Ga. Ct. App. | 1974
The plaintiffs on their own behalf and as the
The complaint also set out that certain defendants are endeavoring to develop and take action on their respective tracts in accordance with the purported rezoning; that if permitted to do so the plaintiffs will suffer immediate and irrevocable harm from which they have no adequate remedy at law, and requested that the court enjoin the defendants from further proceedings. The complaint asked that the purported rezoning be canceled and set aside and that the property owners be enjoined from attempting to use the property for multifamily use, and that the building inspector be enjoined from issuing any building permit for such purposes.
After answers and defensive pleadings were duly filed by the various defendants, the case then came on for an interlocutory hearing in which affidavits by the defendants and the plaintiffs were introduced. The trial judge made various findings of fact at the close of the hearing and temporarily restrained and enjoined the
Under Georgia Laws 1949, pp. 223, 230, and 1971, p. 3054, there is a means provided for an appeal from Clayton County zoning decisions and for subsequent appeal to the superior court and, if necessary, from the court’s decision. The plaintiffs in this case did not choose to use the method specified in such law. (This law is substantially similar to Code Ann. Ch. 69-8 (Ga. L. 1946, p. 191, as amended)). Where a party has exhausted or, because of the invalidity urged, need not exhaust his administrative or legal remedies, a court of equity may grant relief. Toomey v. Norwood Realty Co., Inc., 211 Ga. 814, 818 (89 SE2d 265); Taylor v. Shetzen, 212 Ga. 101 (1 & 2) (90 SE2d 572).
It is clear that the relief which the plaintiff sought was granted by the court acting under its equitable jurisdiction to set aside or declare as void the ruling made by the County Commissioners of Clayton County, and to restrain enforcement of or action under such ruling. See McLennan v. Clarke, 230 Ga. 891 (199 SE2d 784). For this reason, we hold that the Supreme Court and not this court has jurisdiction of the appeal.
Appeal transferred to the Supreme Court.