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ORR et al. v. HAPEVILLE REALTY CO., et al.
Injunction. Before Judge Moore. Fulton Superior Court. March 6, 1956.
DUCKWORTH, Chief Justice.
1. The act of 1952 (Ga. L. 1952, p. 2731) is not discriminatory, does not deprive persons of property without due process of law, and is not unconstitutional for any reason here assigned.
2. The erection of the commercial building renders the exception to the refusal of the court to cancel the building permit harmless and moot, and no ruling will be made thereon. Parker & Co. v. Village of North Atlanta, 212 Ga. 177 (91 S. E. 2d 355).
3. Since Southern Motor Carriers Rate Conference, Inc., purchased the property involved, it is subject to the judgments rendered in this case, and no harm resulted to the defendants by the refusal to make it a formal party.
On January 3, 1955, two of the defendants, Hapeville Realty Investments, Inc., and Dalon Contracting Company, filed a "petition" or "motion", which was later amended, praying that the restraining orders, preventing the defendants from erecting or using a building on Hapeville Realty's property, and the building inspector of the City of Atlanta from issuing a building permit in violation of the zoning laws and ordinances, be dissolved. It was alleged that an amended zoning ordinance was duly passed by the governing authorities of the City of Atlanta in accordance with the laws controlling the same, and the property is now duly zoned for commercial use. Demurrers were filed to this motion, alleging that the 1952 law (Ga. L. 1952, p. 2731), under which the zoning was authorized, is unconstitutional for certain named reasons, and, after a hearing, the demurrers were overruled. On March 15, 1955, after hearing evidence, the court found that a certain portion of the property had been rezoned, and it dissolved, vacated, and set aside previous orders restraining and enjoining the defendants, but it further enjoined them from building or erecting or otherwise using the portion of the lot zoned for residential purposes for other than residential use.
On March 2, 1955, a motion to require a certain building permit, issued on January 13, 1955, to be canceled was filed by the plaintiffs. Thereafter, the petition was amended a number of times, including amendments to make certain new parties defendants. On September 30, 1955, Southern Motor Carriers Rate Conference, Inc.--which the plaintiffs sought to make a party defendant, and which is alleged to have purchased the property in question in accordance with a contract with Hapeville Realty Investments, Inc., to construct an office building and garage thereon, including the use of a certain alley in the rear of the lot--filed its response, in which it admitted that it was not erecting or intending to erect a structure thereon, that the property is zoned for commercial use, and the court is without jurisdiction to enjoin it from using the property, and it is in no wise involved in the litigation, and it prays that it be dismissed without costs.
On March 2, 1956, after a hearing on the motion to cancel the building permit, the court declared the portion of the permit which referred to the back portion of the property zoned for residential use as void in so far as it relates to any building thereon, and further stated that a building was already erected on the part zoned for commercial use. On March 6, 1956, after hearing evidence on the amended petition, praying that Southern Motor Carriers Rate Conference be made a party defendant, the court refused to do so since the building permit issued by the City of Atlanta has no effect as to the rear portion of the lot, the court having previously so held, and a building having already been erected on the front of the lot; and counsel for the Conference having stated that they have no claim, right, or title to the said alley, having offered and tendered a quitclaim deed to the plaintiffs, the same being done in open court. The brief of evidence in the bill of exceptions shows that counsel for the conference tendered a quitclaim deed to the alleged alley to the plaintiffs in settlement of the issues between them, but it was not accepted.
The exceptions here are: (1) to the overruling of the plaintiffs' demurrers to the motion to dissolve the injunctive orders in so far as the order of dissolution could be construed as ruling on the constitutional questions raised by the demurrers, (2) to the failure of the court to cancel the building permit, and (3) to the failure to make Southern Motor Carriers Rate Conference, Inc., a party defendant.
1. In Orr v. Hapeville Realty Investments, 211 Ga. 235 (85 S. E. 2d 20), this court held the 1952 act (Ga. L. 1952, p. 2731) not subject to various constitutional attacks. The demurrers to a petition to dissolve injunctive orders make further constitutional attacks thereon. The provision changing the 1946 act, so as to provide that, in municipalities having more than 300,000 population, hearings may be held by a committee rather than the entire governing body of such city, is not discriminatory, and hence is not offensive to the equal-protection clause of the Constitution. Nor is due process as required by the Constitution denied by the terms of the act requiring that notice of hearings be published in the county where the land affected lies and in newspapers wherein sheriff's sales are advertised instead of in the official organ of the municipality. Neither is the provision, requiring consent of the governing authority of a county in which the smallest portion of the city's population resides in any municipality that embraces parts of more than one county before property in such county can be zoned, discriminatory in violation of the Constitution. The act requires that two of the appointments to a joint planning board be made by the governing authority of that county from residents of the city and county wherein the larger portion of the population resides. This will give owners of property in that county a voice in adopting zoning ordinances. Properties ill two or more counties are so different as relates to the zoning law that the classification and different means of affording a voice are justified.
Other criticisms are too frivolous to merit discussion more than to rule that they are without merit. Therefore the constitutional grounds of the demurrers being without merit, it was not error to overrule these grounds. Since the order overruling the demurrers also dissolved the orders as prayed in the motion, and further provided that the defendants and their successors be enjoined from using the land involved for any purpose in violation of zoning ordinances, any possible error in overruling the demurrers to the petition to dissolve previous similar orders was rendered harmless. 2, 3. Headnotes 2 and 3 require no further elaboration.
Judgment affirmed. All the Justices concur.
Heyman, Abram & Young, Charles F. Whittenstein, J. C. Savage, J. M. B. Bloodworth, Henry L. Bowden, Newell Edenfield, Robert S. Wiggins, Ferrin Y. Matthews, Jos. J. Fine, D. W. Rolader, contra.
Merrell Collier, Henry L. de Give, for plaintiff in error.
Saturday May 23 02:33 EDT

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