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STONE MOUNTAIN INDUSTRIES, INC. et al. v. WILHITE et al.
23032.
Injunction, etc. DeKalb Superior Court. Before Judge Hubert.
DUCKWORTH, Chief Justice.
A property owner has no vested right in a provision of a zoning ordinance that allows a new application to rezone after the expiration of 12 months from a denial of his application, but he can avail himself of the privilege thereof while it remains in the ordinance. When the ordinance is amended to fix the waiting time at 18 months instead of 12, all owners must conform to the amendment, and it was unlawful to approve a new application after 12 months but in less than 18 months subsequent to the amendment to the ordinance.
Certain citizens, taxpayers and property owners in DeKalb County brought this action for equitable relief and for declaratory judgment against another property owner and the governing authorities of DeKalb County alleging that the defendant property owner and had his property illegally rezoned without full compliance with the zoning ordinance by applying for rezoning in less than 18 months since a previous application by his predecessor in title, the zoning ordinance or regulation having been changed before the application to require a waiting period of 18 months between applications instead of 12 months. The prayers were that the defendants be restrained and enjoined from accepting or issuing building permits or using the property or constructing buildings in conformity with the alleged rezoning, and for such other and further relief as the court might deem proper.
By agreement of counsel the lower court heard the case without the intervention of a jury and upon an agreed stipulation of facts which states that the predecessor in title to the defendant property owner had applied for rezoning prior to the zoning amendment changing the waiting period from 12 to 18 months, and that the present owner made application in more than 12 months after the previous application but in less than 18 months as now required by the ordinance. The ordinance reads that no rezoning application will be allowed filed by an owner, his authorized agent or subsequent title holder more often than every 18 months. The court ruled in favor of the plaintiffs enjoining the defendants as prayed and that the amendment changing the mailing period was not a retroactive application of the zoning ordinance. The exception is to this judgment.
The object of zoning is to restrict the owner's use of his own property. The zoning ordinance and map can legally restrict repeated applications for zoning. Ga. L. 1956, p. 3332, Sec. 10, p. 3340; Newman v. Smith, 217 Ga. 465 (123 SE2d 305). The ordinance here involved first provided that when an application to rezone was denied, another application could not be made until the expiration of 12 months. That was the provision of the ordinance when an application was denied, but in less than 12 months therefrom the ordinance was amended to fix the waiting time at 18 months instead of 12 months. After 12 months from the denial expired but in less than 18 months, a successor in title applied again for rezoning. This application was approved, but the judge of the superior court held that it should have been denied since it was within less than 18 months required by the amended ordinance, and we are asked to review and reverse that judgment.
There is no factual basis for considering the constitutional inhibition against retroactive laws since this ordinance does not purport to be ex post facto. It plainly says, as amended, that from its effective date no application can be made until 18 months have expired since a former application was denied. There is no reason why its terms should not apply to this case whether the denial was before or after its adoption. The original provision for a renewed application after 12 months gave no property owner a vested and irrevocable right to apply after 12 months, but it merely gave the right so long and only so long as it remained in the ordinance with the ever present power of the county governing authority to repeal or amend it, unhampered by any property owner. Murphey v. Murphey, 215 Ga. 19 (108 SE2d 872); Balkcom v. Cross, 216 Ga. 530 (118 SE2d 188); Newman v. Smith, 217 Ga. 465, supra.
Judgment affirmed. All the Justices concur.
W. Harvey Armistead, contra.
Young & Thomason, Hardaway Young, III, for plaintiff in error.
SUBMITTED JULY 13, 1965 -- DECIDED SEPTEMBER 9, 1965.
Friday May 22 21:18 EDT


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