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Injunction. Fulton Superior Court. Before Judge Tanksley. September 1, 1959.
DUCKWORTH, Chief Justice.
1. The Constitution (Code 2-1923) confers unlimited power upon the General Assembly to authorize the governing authorities of municipalities and counties to zone and district land, restricting it to some uses and forbidding others. The legislature, under this constitutional power, so empowered the governing authorities of Fulton County by both Georgia Laws 1939, p. 584 (applying to Fulton County alone), and Georgia Laws 1952, p. 2689 (embracing all counties having a population of 300,000 or more), to adopt zoning and planning laws. Under such authority, the Commissioners of Fulton County could and did validly allow the one tract here involved to have the use of mining in addition to agricultural and residential uses to which surrounding lands were confined. Courts are given no criteria or standards by which a judicial review of such zoning within the Constitution and statutes can be made.
2. Even though the use of its property by the defendant was authorized by the zoning thereof and was otherwise lawful, if such use results in damage to the health and property of the petitioner, as alleged in count I of his petition as amended, equity will grant relief that will prevent such injuries, and it was not error to overrule the demurrer to count I of the petition as amended.
3. But the special demurrers as to the alleged traffic hazards in the streets and roads and to the littering of gravel in the streets should have been sustained, since such would be a public nuisance and not a private one, requiring allegations of special damage to the petitioner, and since such was not alleged these allegations should be stricken. American Legion v. Miller, 183 Ga. 754 (189 S. E. 837); Asphalt Products Co. v. Beard, 189 Ga. 610, 613 (2) (7 S. E. 2d 172). Accordingly, the court erred in overruling these special demurrers, but did not err in overruling the other special demurrers to count I which, as stated above, alleges a cause of action for equitable relief arising out of irreparable injuries to him personally and to his property by reason of a continuing trespass and nuisance.
Count II as amended adopts certain paragraphs of count I and then alleges that article 19 of the zoning resolution, attached and made a part of count II as Exhibit "A," allows the Commissioners of Roads and Revenues of Fulton County to grant special use permits for the "extraction of sand, gravel, top soil and other natural resources and the removal of timber"; that such a special use permit has been granted "to be used for quarrying of rock for commercial uses" to the owner of the land on which the quarry is located; but the same is ultra vires and void since the commissioners are limited in the exercise of legislative power for the adoption of ordinances to the powers conferred by law, and that neither Georgia Laws 1939, pp. 584-595, nor Georgia Laws 1952, pp. 2689-2701, confers upon the commissioners the power to grant exceptions or variances in its comprehensive zoning plan by the method of issuing special use permits as attempted in article 19 of the resolution; and that the quarrying activities in violation of the zoning regulations and laws be enjoined as prayed.
Count III as amended adopts certain paragraphs of count I, and alleges in substance that the removal and extraction of gravel under the special-use permit issued does not authorize the mining of granite and the reduction from large pieces to small pieces; and prays that the defendant be enjoined from crushing and grinding granite in violation of the zoning ordinance, in that the extraction of gravel does not allow the quarrying of rock for commercial purposes.
After a hearing on renewed demurrers to the petition as amended, the demurrers to count I were overruled, certain demurrers to counts II and III were overruled and others sustained, and both counts II and III were dismissed. The exceptions in the main bill of exceptions are to the refusal to sustain the demurrers to count I and to the overruling of certain demurrers to counts II and III, even though these two counts were dismissed on demurrer. The assignments of error in the cross-bill are to the judgment sustaining certain demurrers to counts II and III and the dismissal of these counts.
1. Repeatedly this court has rendered judgments in cases concerning zoning matters. Some of our decisions in such cases are: McCord v. Bond & Condon Co., 175 Ga. 667 (165 S. E. 590, 86 A. L. R. 703); Schofield v. Bishop, 192 Ga. 732 (16 S. E. 2d 714); Snow v. Johnston, 197 Ga. 146 (28 S. E. 2d 270); Lewenstein v. Brown, 200 Ga. 433 (37 S. E. 2d 332); Morgan v. Thomas, 207 Ga. 660 (63 S. E. 2d 659); Birdsey v. Wesleyan College, 211 Ga. 583 (87 S. E. 2d 378); and Neal v. City of Atlanta, 212 Ga. 687 (94 S. E. 2d 867). A casual reading of the opinions in these cases reveals at once an absence of complete judicial comprehension of the problems at hand. This is easily understandable when it is recognized that lawyers and judges of this State before the dawn of constitutional consent to zoning of private property had become saturated with the fact that the Constitution respected and held inviolate private property and insured equal protection of the owner in the use of such property. But the people by their votes amended or changed this constitutional guardianship of private property, and in the process stripped their judiciary of power to protect it, as had theretofore been the case. By the constitutional change the people voluntarily subjected their property to the unlimited control and regulation of legislative departments. The Constitution (Code 2-1923) now provides: "The General Assembly of the State shall have authority to grant the governing authorities of the municipalities and counties authority to pass zoning and planning laws whereby such cities or counties may be zoned or districted for various uses and other or different uses prohibited therein, and regulating the use for which said zones or districts may be set apart, and regulating the plans for development and improvements on real estate therein." Pursuant to this constitutional authority, Georgia Laws 1939, p. 584 (applicable to Fulton County), and Georgia Laws 1952, p. 2689 (applicable to counties having a population of 300,000 or more) were enacted. These acts conferred upon county governing authorities all the powers the Constitution authorized. Section 24 of the 1939 act and section 25 of the 1952 act, in identical terms, provide that the county governing authorities are "clothed with all of the authority which the General Assembly can grant to such authorities . . . under the laws of the State of Georgia." In defining zones and districts and the uses therein, the General Assembly conferred equally unlimited power to those mentioned in the Constitution. They vested in the county authorities the power to zone property without limitation as to the number or size of such zones, and without limitation as to the uses allowed or prohibited; and without specification as to the procedure, other than a resolution, notice, and a hearing, to be followed in zoning or the time when such zoning should become effective. In section 8 of the 1939 act and section 8 of the act of 1952, the county authorities are empowered to zone property without regard to the action of the planning commissions. The 1939 act, which applies to Fulton County alone, provides in section 9 that the county authorities may on their own motion proceed to modify or amend such zoning or planning resolution as may have been established and make such modifications or amendments as they may see fit. Such limitless powers are simply beyond judicial review. There can be no judicial limitation placed upon the broad terms "as they may see fit." Section 11 of the 1939 act provides that the Board of Commissioners of Roads and Revenues of Fulton County, Georgia, may in the interest of "public health, safety, order, convenience, comfort, prosperity or the general welfare of the community, adopt by resolution a plan or plans for the districting and/or zoning of the territory and land in Fulton County, Georgia (outside of incorporated areas) . . . The county may be divided into such number of zones or districts and such districts may be of such shape and area as the county authorities may deem best suited to attain the purpose of the zoning regulations. Such county authorities may go into congested areas and prescribe zoning regulations for any part of or all of such congested areas and they are to be the judges of where such congested areas may be and the extent and limitations thereof." (Italics ours.) The foregoing quotation from section 11 shows the unlimited powers conferred upon the county commissioners. It expressly empowers them to "be the judges" as to where congested areas are and the extent to which they will regulate them.
It would seem that the foregoing quotations from the Constitution and the statutes demonstrate plainly that the county commissioners have complete freedom to create any number of zones and districts and of such size and shape as they may arbitrarily choose. This means that they have the authority to create zones or districts of any size, whether 10 feet square or any number of acres in any conceivable shape. The utter impossibility of bringing the terms and conditions of such legislative powers to judicial decisions perhaps explains why the county authorities are required to give persons to be affected by proposed zonings an opportunity to be heard. The kind of hearing is not prescribed, and irrespective of what is shown at such hearings, the authorities are given absolute power to proceed as they choose in total disregard of what such hearings reveal.
When the act plainly empowers the county authorities to amend or to modify existing zones, and prescribes no particular instrumentality by which such amendments or modifications must be effectuated, the courts are given no power to prescribe the instrumentalities or to condemn any procedures by which the authorized result is accomplished. This means that it is idle for a court to attempt to distinguish between such terms as spot zoning and special use permits. They accomplish precisely the same result, to wit, to zone the property involved to another use. Such tract alone, irrespective of its size or shape, constitutes a zone or district which both the Constitution and statutes empower the county commissioners to establish. Indeed both the Constitution and the statutes authorize what this court has called spot zoning. The courts must refuse to interfere with the legislative acts of zoning because the courts are given neither chart nor compass by which to adjudicate and condemn the actions of the zoning authorities. We therefore conclude that the people must submit to the legislative control of their property, or change the Constitution to afford the courts something to stand upon in protecting private property. We have neither the information, experience nor desire to make public policy in respect to legislative control of the uses of private property.
There a single tract was lifted from an area zoned to another and different use. While the decision held valid the creation of a Board of Zoning Appeals, and then held that, since the use of the particular tract had been fixed in conformity with the power conferred upon that board, it nevertheless and of necessity approved such zoning and the refusal of the trial court to interfere therewith. So long as the decision in the McCord case stands, this court can not disapprove zoning because it is spot zoning or done by special use permit.
We believe the resolution by the county commissioners here involved is both wise and clearly within the powers conferred upon them by the General Assembly. It enumerates certain uses, including that of removing natural resources, which is the use here involved, and provides that they may later be allowed by the commissioners within the area zoned to agricultural uses upon a finding by the commissioners that such uses are necessary and should be allowed. Thus it is seen that this rezoning was done pursuant to the zoning resolution, and, in effect, the land involved was thereby zoned and is a separate zone since such zone or district is precisely what both the Constitution and statutes authorize.
We therefore hold that the action of the commissioners in thus fixing the uses for this single particular tract is valid and authorizes putting said land to such uses. Furthermore, the alleged processing of the minerals removed from the soil on the premises is within the uses allowed. It follows from what has been ruled above that neither count II nor count III alleges grounds for the relief prayed, and it was not error for the lower court to sustain the demurrers thereto.
2. But zoning to authorize a use of property which is entirely lawful does not entitle the user to escape liability for damage to persons or property resulting from such use. Count I of the petition as amended alleges that the walls of petitioner's home were cracked by the blasting carried on in the mining authorized. It further alleges that the petitioner and his family were forced to live in unsanitary conditions, injurious to their health, caused by the dust, smells, and fumes pervading his home and making it almost uninhabitable. While as a general rule one is not liable in damages for the natural results from a lawful, proper, and non-negligent use of his property (Thrasher v. City of Atlanta, 178 Ga. 514, 173 S. E. 817; Gordon County Broadcasting Co. v. Chitwood, 211 Ga. 544, 87 S. E. 2d 78; Newnan v. Sessions, 215 Ga. 54, 108 S. E. 2d 870), yet where, as here, such uses put in motion conditions that go upon the lands of another and there damage his health or property, such injured person is entitled to relief in equity to abate or terminate such injuries which are alleged to be irreparable and continuous. Poultryland, Inc. v. Anderson, 200 Ga. 549 (37 S. E. 2d 785); Delta Air Corp. v. Kersey, 193 Ga. 862 (20 S. E. 2d 245, 140 A. L. R. 1352); Roughton v. Thiele Kaolin Co., 209 Ga. 577 (74 S. E. 2d 844). It follows that count I alleges a cause of action, and it was not error to overrule the general demurrers thereto.
3. The ruling in headnote 3 as to certain special demurrers requires no further elaboration.
HEAD, Presiding Justice, dissenting. The act of 1939, entitled "Fulton Planning Commission Created" (Ga. L. 1939, p. 584), contains 26 sections. The act of 1952, entitled "Zoning in Certain Counties" (Ga. L. 1952, p. 2689), contains 28 sections. An examination of the two acts reveals that the first 22 sections of the two acts are practically identical, the exception being that in section 17 of the 1952 act the words "or the board of adjustment" are added immediately following the words, "Every decision of the board of zoning appeals, . . ." Section 23 of the 1952 act is new, and fixes the compensation of the planning commission and the board of zoning appeals. Section 24 of the 1952 act conforms with section 23 of the 1939 act, and section 24 of the 1939 act is carried forward as section 25 of the 1952 act. Section 26 of the 1952 act contains the only substantial new matter that is not incorporated in the 1939 act. Section 26 of the 1952 act provides that, should the largest municipality in the county form a municipal planning board and board of adjustment as authorized by the act of 1946 (Ga. L. 1946, p. 191), then and in that event, the municipal planning board and board of adjustment shall have all of the powers, authority, and duties of the county planning commission and county board of zoning appeals, provided by the 1952 act.
By an act (Ga. L. 1952, p. 2731), approved on the same date as the act applicable to Fulton County (Ga. L. 1952, p. 2689), the City of Atlanta was brought under the provisions of the General Zoning Law, approved January 31, 1946 (Ga. L. 1946, p. 191). Under the terms of the 1952 act applicable to Fulton County, the powers which otherwise would have been vested in a county board of zoning appeals passed to a board of adjustment as authorized and provided by the general law of 1946. It is provided in paragraph 2 of section 10 of the 1946 act that the board of adjustment has power: "To authorize upon appeal in specific cases" such variances from the zoning regulations as will not be contrary to the public interest.
Nowhere in any of the acts cited is any authority granted to the Commissioners of Roads and Revenues of Fulton County to grant a variance by "special permit" from the zoning regulations. All power to grant variances being in a board of adjustment and not in the commissioners, the commissioners cannot exercise a power that is vested by legislative enactment elsewhere. It matters not that the legislation producing the existing result may be devious in language or difficult of ascertainment so long as, as here, the legislative intent may be ascertained. I therefore dissent from the rulings in division one of the opinion.
Wm. B. Spann, Jr., Daniel B. Hodgson, Alston, Sibley, Miller & Shackelford, for plaintiff in error.
Saturday May 23 00:25 EDT

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