1. Under the provisions of section 9 of the act of 1939 (Ga. L. 1939, p. 58 4), the Board of Commissioners of Roads and Revenues of Fulton County had the authority, in passing upon the application of property owners to rezone their property from one use classification to another, to reject the recommendation of the Planning Commission, grant the application, and rezone the applicants' property.
2. The action of the Board of County Commissioners was neither arbitrary nor unreasonable under the facts alleged.
Petition for injunction. Before Judge Pharr. Fulton Superior Court. November 9, 1950.
The exception here is to an order dismissing on general demurrer the equitable petition, which made the following case:
Under a zoning resolution adopted by the Commissioners of Roads and Revenues of Fulton County on June 6, 1946, under the authority of an act of the General Assembly of 1939 (Ga. L. 1939, p. 584), certain real property owned by the plaintiffs and the defendants was placed in zoning classification "R-5, agricultural residential district," wherein the property in said district was limited to single family residences. All the plaintiffs and defendants acquired their respective properties subsequent to the date of the passage of said zoning resolution. Under the provisions of section 9 of said act, the defendants, on April 13, 1950, filed with the Planning Commission of Fulton County a proposal to rezone their property from R-5 classification to "A-1, apartment use." After notice and a hearing before the Planning Commission, such commission transmitted to the Commissioners of Road and Revenues of Fulton County their recommendation that the request to rezone be denied. This recommendation was considered at a meeting of the commissioners on August 2, 1950, and after hearing from the representatives of the plaintiffs and defendants, the petition of the defendants to rezone their properties was approved and the recommendation of the Planning Commission was disapproved, and the property was rezoned to A-1, apartment use. Thereupon the plaintiffs filed their petition to enjoin the defendants from erecting apartment buildings on their properties, it being alleged that the action of the Commissioners of Roads and Revenues in rezoning the property was illegal and void for the following reasons: (a) Under the act of 1939, where the Planning Commission recommends that proposals to rezone be denied, the commissioners can only accept or reject such recommendation, and only have the authority, after rejection, to (1) rezone on motion of its own, and after notice and hearing, or (2) refer the proposal back to the Planning Commission for further action. (b) The action of the commissioners denies the defendants the equal protection of law, in violation of the Fourteenth Amendment to the Federal Constitution, in that a privilege has been conferred upon the defendants and denied to the plaintiffs. (c) Said action violates art. 1, sec. 3, par. 2 of the State Constitution, in that said action amounted to the passage of an ex post facto law, for the reason that, after a grant to the plaintiffs and defendants of the protection of an R-5 classification, the withdrawal of the defendants' property from this classification lessens the value of the plaintiffs' property. (d) Said action violates art. 1, sec, 9, par. 3 of the United States Constitution, for the same reason set out as to the State Constitution. And (e) such action was unreasonable and arbitrary, "in that the effect of the said action
is to allow defendants to place upon said described property of defendants an apartment or apartments under circumstances where the said property of the defendants will be appreciated and increased in value, while the property of the petitioners and of others similarly situated, will be decreased in value." The petition was demurred to on the ground that it did not set forth a cause of equity, and was without equity.
Sam F. Lowe Jr., and John W. Nesbitt, for plaintiff.
Herbert Johnson, Henry M. Hatcher Jr., and William L. Moore, for defendants.
1. In the enactment of the zoning ordinance and amendments thereto, the Board of Commissioners of Roads and Revenues of Fulton County is limited to the specific authority conferred by statute. Barton v. Hardin, 204 Ga. 108 (48 S. E. 2d, 882). Under the act of 1939 (Ga. L. 1939, p. 585), the Commissioners of Roads and Revenues of Fulton County have the sole power to enact a comprehensive zoning plan and adopt amendments thereto, rezoning or changing the zoning classifications under the comprehensive plan. In the exercise of such authority, the board is acting in a legislative capacity. Under this act (section 8), the board was authorized to appoint a Planning Commission, and one of the duties of this commission was the preparation of a comprehensive zoning plan for the county and, upon receipt of this plan, the Board of Commissioners could accept or reject the report, or they could adopt an entirely new plan. After the adoption of a comprehensive plan under the provisions of section 9, the same could be amended, changed, or modified by the Board of Commissioners in the following manner: "Said Planning Commission may submit to the county authorities of Fulton County, Georgia, any recommendation as to change. Said Commission upon receipt of such a suggestion or report shall set a time (day and hour) for the hearing of said proposed change and give notice to the public thereof by publishing notices in the newspaper in said county in which the sheriff's advertisements are published once a week for at least three weeks. On the day and hour appointed the Commissioners of Roads and Revenues of Fulton County shall proceed to hear and determine the recommendation of said Planning Commission in this regard and dispose of the same." (Italics ours.) It is the contention of the plaintiffs that this provision of the act limits the Board of Commissioners to the power either to confirm or reject the report of the Planning Commission; and that, in refusing to approve the recommendation of the Planning Commission, the Board of Commissioners had no authority to go forward and rezone the property as requested by the defendants. To this contention we cannot agree. The petition of the defendants to rezone could only receive final action at the hands of the Board of Commissioners. Under the zoning statute and the rules adopted by the board, the petition for rezoning is filed with the Planning Commission, and after notice and a hearing the Planning Commission makes a recommendation to the Board of Commissioners. In such action the Planning Commission acts only as an advisory body, and its action is not judicial or legislative in character. The action of the Planning Commission is analogous to a committee of the General Assembly, to whom proposed amendments to existing statutes are referred for investigation, report, and recommendation. The legislative body charged with the final action in the enactment of amendments to existing laws is not bound by favorable or unfavorable reports of its committees, which act only in an advisory capacity. If under the facts of this case the Board of Commissioners were prohibited from exercising their independent judgment upon a proposed amendment to a zoning resolution, because the Planning Commission had not favorably recommended its passage, then there never would be any occasion for the commissioners to act on any proposed change to a zoning resolution, where the Planning Commission makes an unfavorable recommendation. It was not the intent of the General Assembly that the Planning Commission's action should be final. Though the Board of Commissioners may act on its own motion to amend an ordinance by a formal resolution setting a certain date for a hearing, there is nothing in the statute which prevents it from disregarding an adverse recommendation of the Planning Commission as to a proposed amendment, and thereupon granting the right to the petitioners to a rezoning of their properties. The application of the defendants in this case was to rezone their properties, and when the Board of Commissioners refused to follow the recommendation of its Planning Commission, it was the duty of the
board to act on the request to rezone. A rule of procedure of the Board of Commissioners which requires it to send a proposed amendment back to the Planning Commission for report applies where the board makes a modification in a change requested by the Planning Board, and does not apply where the recommendation of the Planning Commission is overruled as a whole. The action of the board in rezoning the properties of the defendants was not violative of the zoning ordinance, See, in this connection, State ex ret. Better Built Rome & Mortgage Co. v. Davis, 302 Mo. 307 (259 S. W. 80).
2. The Fulton Board of Commissioners of Roads and Revenues, under constitutional and statutory authority, has the power to zone and restrict the use of property, and its exercise of such power will not be disturbed by the courts unless its action was clearly arbitrary and unreasonable. Howden v. Mayor &c. of Savannah, 172 Ga. 833 (159 S. E. 401); Schofield v. Bishop, 192 Ga. 732 (16 S. E. 2d, 714). Such governing bodies may deal with the situation from a practical standpoint, and "are better qualified than the courts to determine the necessity, character and degree of regulation which these new and perplexing conditions require; and their conclusions should not be disturbed by the courts unless clearly arbitrary and unreasonable." Gorieb v. Fox, 274 U. S. 603, 608 (47 Sup. Ct. 675, 71 L. ed. 1228, 53 A.L.R. 1210).
The allegations in the petition are insufficient to show that the action of the board was either arbitrary or unreasonable, but on the contrary show that the action was taken after all the parties had had two public hearings.
3. In the passage of the resolution where the properties of the plaintiffs and the defendants were classified for use as an agricultural residential district, the board did so under the police power, and neither of the parties, as property owners, obtained any vested right or interest that prohibited the board from subsequently changing the zoning classification to a different use. The zoning statute expressly authorizes the Board of Commissioners to amend, change, alter, or modify the comprehensive zoning plan. The action of the board in changing the use classification of the defendants' property from an agricultural use to that of apartment use does not deny the plaintiffs the equal protection of law, nor operate retroactively in violation of the Federal and State constitutional provisions prohibiting the passage of ex post facto laws. Nor does such action deny the plaintiffs equal protection of law in violation of the Fourteenth Amendment to the United States Constitution. See, in this connection, Bullard v. Holman, 184 Ga. 788 (193 S. E. 586, 113 A. L. R. 763); Miller v. Board of Public Works, 195 Cal. 477 (234 Pac. 381); Eggebeen v. Sonnenburg, 239 Wis. 213 (1 N. W. 2d, 84), and annotation in 138 A.L.R. 500.
The trial judge did not err in dismissing the petition on general demurrer.
Judgment affirmed. All the Justices concur.