DeKalb County v. Post Properties, Inc.
DeKalb County v. Post Properties, Inc.
070rehearing
On Motion for Rehearing.
On motion for rehearing, Post Properties urges that the intervening classifications were considered by the Board of Commissioners when the rezoning application was heard. The fact that, in rejecting a rezoning application, the board may have "considered” the intervening classifications does not relieve the rezoning applicant of the requirement of making a proper constitutional challenge to the intervening classifications. Richmond Concrete Products Co. v. Ward, 212 Ga. 773 (95 SE2d 677) (1956).
Motion for rehearing denied.
Opinion of the Court
Brunette M. Spruill has owned approximately thirty-four (34) acres of land at the intersection of Ashford-Dunwoody Road and 1-285 in DeKalb County since 1931.
On May 26, 1978, Post Properties, Inc., filed a conditional zoning application and a site plan showing the proposed development with the Board of Commissioners of DeKalb County seeking the adoption of a resolution changing the zoning classification from R-100 to RM-100, conditional. The planning department reviewed the application and recommended that the property be rezoned R-A5, cluster housing, condominiums, single family attached dwellings. The planning department suggested that the RM-100 application could be approved if it were modified, as follows: "(1) Access shall be to Ashford-Dunwoody Road only; (2) There shall be only one point of access from each tract at a point to be determined by the Traffic Engineer; (3) A 50' buffer shall be maintained along the R-100 boundaries to the east, west and south; (4) Development shall be no closer than 200' to Lake Hearn Drive on the westernmost tract. Conditional R-A5 is recommended by the staff based on current
On July 5, 1978, Post Properties amended its application, reducing the requested density from 12 to 9 units per acre. On July 11, 1978, the DeKalb County Planning Commission heard the matter and recommended denial of the application by a three-two vote. On July 25, 1978, the Board of Commissioners denied the application by a five-zero vote, with two members abstaining.
On January 9,1979, Post Properties and Ms. Spruill filed this action seeking to have the R-100 classification declared unconstitutional and to enjoin the defendants from preventing them from using the property in accordance with their rezoning application. Trial was set for March 21, 1979, but was rescheduled for April 25, 1979. On April 13, 1979, John Varrieur and other members of an alleged class of property owners with an interest in the matter filed a motion to intervene and a proposed answer to the complaint. The proposed intervenors did not obtain a pretrial hearing on their motion. Plaintiffs moved that the motion to intervene and intervenors’ answer be denied and disallowed. Plaintiffs’ motion was set for hearing upon the call of the matter for trial. Following the hearing, the motion to intervene was denied. Counsel for the intervenors and for Post Properties stipulated that "the motion to intervene was denied by the Court, and counsel for the intervenors has been allowed to participate with counsel for the defendants [the county] in these proceedings.” Intervenors’ counsel did so participate, cross examining plaintiffs’ witnesses and calling witnesses of their own. The intervenors, represented by new counsel, have appealed the denial of their motion to intervene.
The county has appealed, enumerating the following errors: "1. The trial court erred in holding that no single-family classification is suitable for the subject property. 2. The trial court erred in holding any future rezoning by defendants other than what plaintiffs desired was unsuitable in that said ruling, as such, precluded defendants from considering zoning other than what plaintiffs sought. 3. The trial court’s holding in its entirety amounts to 'spot zoning’ of the subject property.” At the outset, we agree with Post Properties’ contention that the county has not appealed the trial court’s holding that the current R-100 zoning is unconstitutional. The first two enumerations do not appeal that ruling, and the third enumeration does not encompass that point.
1. The county’s first two enumerations challenge the trial court’s ruling that no single family zoning classification can be constitutionally applied to the property. It is unnecessary to review the evidence presented at the trial which is alleged to provide support for that ruling in view of the fact that the record does not disclose any challenge having been made to any classification other than R-100 before the county commissioners.
Additionally, no constitutional attack on intervening classifications was alleged even in the superi- or court. (We do not view the prayer for relief that "Defendants be temporarily and permanently restrained
2. The remaining issue is whether the trial court erred in denying the motion to intervene. The intervenors
Judgment in Case No. 35362 reversed.
Ms. Spruill and her husband acquired the property from his father in 1931; her husband died in 1971, leaving her the sole owner.
R-100 is a single family residential classification. RM-100 is a multiple family residential classification.
In addition to their brief in the appeal of this issue,
In their amicus brief, the proposed intervenors urge that the damage to the owner of the property is not the difference in the value of the property as zoned and its value if zoned as applied for, but is the diminution in the value of the property caused by the existing zoning vis-a-vis comparable property similiarly zoned. Proposed intervenors also urge that the public has a legally recognizable interest in maintaining the existing zoning classification. 1 Rathkoph, The Law of Zoning & Planning 2-17, § 2.02 (1979). The weight to be given these contentions will have to await an appropriate case.
The third enumeration raises nothing on appeal; since the trial court has no power to zone the property, its action cannot be challenged as spot zoning. See City of Atlanta v. McLennan, 237 Ga. 25, 26-28 (226 SE2d 732)
In fact, the record does not reveal what single family zoning classifications other than R-100 have been declared unconstitutional by the trial court’s order. Hence a review of the evidence vis-a-vis the unspecified zoning classifications would be pointless.
When properly raised, intervening classifications can be challenged in a suit for declaratory judgment. See Littlestone Co. v. County of Cook, 19 Ill. App. 3d 222 (311 NE2d 268, 277-78) (1974), cert. den., 420 U. S. 929 (1975).
On remand, Post Properties is to be allowed to raise constitutional challenges to the intervening classifications before the County Commission if it chooses to do so. The 60 days specified in the trial court’s order shall commence when the remittitur from this court is entered in the trial court.
The would-be intervenors argue that their interest differs from that of the county because they have a specific interest in the zoning of the property at issue while the county has only a generalized interest. Were we to adopt this rationale, intervention by the affected citizen or citizens would be authorized in numerous governmental cases.
Reference
- Full Case Name
- DeKALB COUNTY Et Al. v. POST PROPERTIES, INC. Et Al.; VARRIEUR Et Al. v. DeKALB COUNTY Et Al.
- Cited By
- 48 cases
- Status
- Published