Opinion
13842.
SEPTEMBER 12, 1941.
Petition for injunction. Before Judge Pomeroy. Fulton superior court. May 15, 1941.
Spence Spence, for plaintiffs.
McElreath, Scott, Duckworth Riley, for defendants.
1. Where a petition by property owners for relief in equity shows that the Board of Zoning Appeals of the City of Atlanta, after a hearing, has granted a permit to an adjoining property owner to erect and operate a steam laundry on his property, and fails to allege that the petitioners were not served as required by the zoning ordinance and did not waive service, the remedy of the petitioners as provided by the city charter is the writ of certiorari from the superior court; and it not being alleged that a petition for certiorari has been sanctioned, no ground for equitable relief is shown.
2. A steam laundry is not a nuisance per se; and where the petition fails to describe the laundry, its appearance and operation, but makes general averments that it will cause irreparable injury to petitioners' property, such averments are conclusions of law, and constitute no allegations of damages. Therefore the petition is subject to general demurrer.
No. 13842. SEPTEMBER 12, 1941.
W. R. Hoyt Jr. and Washington Seminary Inc. brought this action against M. F. Bass and Ralph Didshuneit, alleging as follows: Hoyt owns and occupies as a residence a house and lot known as 1654 Peachtree Street in the City of Atlanta. Washington Seminary owns and occupies land adjoining that of Hoyt on the south, fronting more than 200 feet on Peachtree Street, on which it operates a high-class young ladies seminary and boarding-school, and in which property it has invested more than $100,000 in building and school equipment which can be used only in the operation of this particular school. In addition to its physical properties, Washington Seminary has by a long period of continuous operation and advertisement built a reputation and good will of a high value, but incapable of being measured in dollars. Peachtree Street has for many years been the most important residential street in the city, and petitioners' properties are located on the most desirable portion of that street and are surrounded by very costly residences. Bass owns property located immediately north of and adjoining the property of Hoyt, on which is located an expensive dwelling-house. Bass has caused the tenant to move, has placed building materials thereon, has asserted his intention to erect a steam laundry thereon, and has caused a large sign in the following language to be placed on his property: "The new home of Brookwood Laundry. Being erected by Ralph Didshuneit, general contractor, Candler Bldg., Atlanta." Didshuneit is engaged in the contracting business, and has entered into an agreement with Bass to erect the building constituting the steam laundry upon this property, which neither he nor Bass has any legal right to do. At a hearing before the Board of Zoning Appeals of Atlanta Bass stated that he intended to erect a commercial building in which would be housed and operated a steam laundry, and after said hearing the Board of Zoning Appeals authorized the building of such a laundry, notwithstanding the objection of adjacent-property owners then and there present. "The determination of the Board of Zoning Appeals to permit a steam laundry to be put on the said lot was illegal and void, because, (1) there was no public notice of any kind filed; no sign was put upon the lot, nor otherwise was the public notified; (2) there was no public hearing to which interested parties were invited or informed was to be held; (3) the judgment of the board zoning the said property was arbitrary and unreasonable, because a laundry at this place would not substantially serve the public convenience or welfare; and because the same would permanently injure the appropriate use of neighboring property; and because the owners of property located within 100 feet of the property about to be rezoned must be personally served with written notice, and Mr. Chas. H. Black owned the adjoining property, and was not served until after the property had been rezoned, and because Montgomery-Ward, a corporation, was the owner of property located within less than 100 feet, and was not served. For these reasons, and many others, the attempt to rezone this property so that it may be used for industrial purposes and especially to put a steam laundry thereon, is illegal and void." The proceeding by the Board of Zoning Appeals was void for the additional reason that the zoning law of the City of Atlanta, under which the board pretended to act and under which it pretended to grant authority to erect the laundry, is illegal and void, because it is violative of the constitution of the United States and the constitution of Georgia; for that it permits taking of private property for public use without just compensation, and is a denial of the equal protection of the laws.
In paragraph 4 of the petition it was alleged: "Acting through the aid of others, the said defendant Bass made an application to the City Planning Commission of the City of Atlanta to permit said property to be rezoned so that industrial enterprises might be erected upon the property. In paragraph 7 it was alleged: "The City Planning Commission has a rule known as section 2 of the city ordinance establishing said commission, and a copy of the same is hereto attached as `Exhibit A' and embodied herein as a part hereof, which requires a notification of property owners contiguous to the said property about to be zoned, and that a sign be erected upon the property notifying or stating the fact that application for the rezoning of said property was to be made, and when and where; and also giving public notice of a time and place for a hearing more than ten days in advance; and petitioners say that the notice so required was not given, and no sign was put upon the property, and no newspaper notice published. Petitioners aver that all of the abutting-property owners were not notified, and that only two persons were notified that a hearing would be had to rezone this property; and that these persons were not notified within the time provided by said rule, to wit, by giving them ten days notice." It was further alleged that a laundry on defendant's property immediately on the street in front of the plaintiffs' properties would destroy the value of their properties, constitute a continuing nuisance, and cause damage incapable of accurate estimation in money; that their properties would be destroyed as high-class residential property and be rendered incapable of their present use; that in the case of Washington Seminary, its buildings are especially constructed for school purposes, and would be practically worthless and the school would be seriously injured; that the presence of a steam laundry at this place would constitute a nuisance per se; and petitioners deny that the City of Atlanta or any of its agents, and especially the Board of Zoning Appeals, have any lawful power to grant any such permit, even under the rules of the zoning board, because they failed to comply with the rule as to notice required before the board could make a rezoning of property in the City of Atlanta; that the petitioners are without an adequate remedy at law, and only in a court of equity, where they may obtain injunctive relief and other equitable remedies, can they obtain adequate relief, because if the laundry is permitted to be erected their properties will be seriously and permanently injured, and the damage will be irreparable; that their properties would be injured and destroyed to the extent of many thousands of dollars, and they would be put to vexatious litigation to recover the same; and that the defendants might be unable to answer in damages to the extent which plaintiffs might suffer. The prayers were, for injunction restraining defendants from proceeding in any wise to erect any business structure upon the lot or erecting or operating a laundry or other industry thereon; that the zoning ordinance be decreed unconstitutional and void; and for general relief.
By amendment it was alleged that the powers sought to be exercised by the Board of Zoning Appeals violate article 1, sections 1 and 3, of the constitution of Georgia and the 5th and 14th amendments of the constitution of the United States, in that the amendment of the charter of the City of Atlanta creating the Planning Commission and providing the powers and duties of the Board of Zoning Appeals is confiscatory and void, because it permits the taking of private property for public use without due process of law, and without opportunity for notice, opportunity to be heard, the advice of counsel, the right to be confronted by and to cross-examine witnesses of the opposition, and without the right to appear and present witness in their own behalf; because the laws and ordinances of the City of Atlanta as mentioned in the petition permit the Board of Zoning Appeals to execute the power and authority mentioned therein in a despotic, autocratic, unreasonable, arbitrary, and tyrannical manner; and because in the application of these laws to the property of plaintiffs they have been exercised in a despotic and unreasonable manner, so that their property is about to be taken without trial, without notice of trial, and without an opportunity to be present, to present witnesses, and to be heard.
The defendants filed a general demurrer and an answer. At interlocutory hearing on the application for temporary injunction evidence was introduced, but it is not necessary for the purposes of this decision to set forth this evidence here. At the conclusion of the hearing two judgments were entered, the first denying the prayer for a temporary injunction, the second reciting that it was rendered after the first, sustaining the general demurrer and dismissing the petition. The plaintiffs excepted, assigning error on these rulings.
1. In the foregoing statement of facts are set forth the allegations of paragraphs 4 and 7, relating to the Planning Commission. An examination of both the charter amendment authorizing the City of Atlanta to adopt zoning ordinances (Ga. L. 1929, p. 818), and the zoning ordinance attached to the petition as an exhibit, discloses that both define the duties and powers of the Planning Commission, and that this commission is given power only to make recommendations, and is not empowered to zone or rezone any portion of the city; and that the power to zone is confined exclusively to the mayor and general council, and under the charter amendment no part of this power is delegated to any other agency, board, or commission. Therefore at the outset we put aside as irrelevant all averments of the petition relating to the Planning Commission, and consider only the relevant allegations which pertain to the Board of Zoning Appeals. Section 21 of the zoning ordinance provides that the ordinance shall be enforced by the inspector of buildings under the rules and regulations of the Board of Zoning Appeals; and this section defined the powers of this board as follows: "The Board of Zoning Appeals shall adopt from time to time such rules and regulations as they may deem necessary to carry into effect the provisions of this ordinance. Any decision of the inspector of buildings made in the enforcement of this ordinance may be appealed to the Board of Zoning Appeals by any person claiming to be adversely affected by such decision. Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this ordinance, the Board of Zoning Appeals shall have the power in a specific case to vary any such provision in harmony with its general purpose and intent, so that the public health, service, safety, and general welfare may be secured and substantial justice done." From the quoted provision of the zoning ordinance it is apparent that the powers of the Board of Zoning Appeals do not include the power to zone or rezone, but rather to make specific alterations in accord with the terms and spirit of the zoning ordinance. It also is apparent that the inspector of buildings first must insist on full compliance with the zoning ordinance, and that in specific cases property owners affected may appeal from the inspector of buildings to the Board of Zoning Appeals; and that board, after consideration, is empowered to overrule the inspector of buildings. The petition as amended makes no attempt to show how the matter was brought before the Board of Zoning Appeals, but it is assumed that it was properly and legally presented to that board as an appeal from the decision of the inspector of buildings. section 10(a) provides that "The Board of Zoning Appeals may in a specific case, after public notice and hearing and subject to appropriate conditions and safeguards, determine and vary the application of the use district regulations herein established in harmony with their general purposes and intent." It is observed that a prerequisite to the exercise of the power above mentioned is "public notice and hearing." Section 2 defines various terms used in the ordinance, and in subsection (o) thereof the "public notice" required, first, on a petition to amend the zoning ordinance (which has no relevancy in the present case), and second, of an appeal, is defined. The latter applies in the present case, and it is provided that such "public notice" of an appeal shall be a written notice by the secretary of the Board of Zoning Appeals to the owners of adjoining property within a distance of at least 100 feet in each direction along street frontages or otherwise as may be directed by the Board of Zoning Appeals.
It follows that the notice required in the present case was a written notice to be mailed to property owners within 100 feet by the secretary of the Board of Zoning Appeals, or otherwise if directed by that board. An examination of the allegations of the petition relating to service discloses that notwithstanding it is alleged that the decision of the Board of Zoning Appeals is void because "there was no public hearing to which interested parties were invited or informed was to be held," it is further alleged: "and because the owners of property located within 100 feet of the property about to be rezoned must be personally served with written notice, and Mr. Chas. H. Black owned the adjoining property and was not served until after the property had been rezoned, and because Montgomery-Ward, a corporation, was the owner of property located within less than 100 feet, and was not served." These allegations of want of notice and service are construed together, and so construed they amount to an averment that the two parties named were not served; and by thus naming parties not served the petition is construed to concede that all other parties including petitioners were duly served. As ruled above, it was not necessary in the present case that any notice be filed or sign posted on the lot or notice published, as provided in section 2(o) of the zoning ordinance in cases of a petition to amend the ordinance. Thus construed, the petition asserts that a decision has been rendered by the Board of Zoning Appeals granting a right to the defendants, of which the petitioners now complain, but fails to show that all of the complaints now sought to be made were not duly and fully presented before the Board of Zoning Appeals, or to state any reason why it was not done. Under the charter amendment, it is provided that "every decision of the Board of Zoning Appeals shall be subject to writ of certiorari issued from the superior court upon the same terms as such writs are issued in any case." Thus it is obvious that petitioners were afforded a remedy at law to review and attack the decision of the Board of Zoning Appeals complained of, which remedy was the writ of certiorari from the superior court. It does not appear that the petition for certiorari has been sanctioned, or even presented. In such circumstances the decision complained of is not shown to be invalid, and it has now become final and constitutes an adjudication of the questions now sought to be presented by the petition. In Jones v. Johnson Ledbetter Construction Co., 185 Ga. 323 ( 194 S.E. 902), a suit in equity was instituted, seeking to enjoin a levy and sale under a judgment of the justice's court. This court said that the judgment complained of was final until revoked or set aside; and it not appearing that a petition for certiorari had been sanctioned, the petition showed no ground for injunction. A case very similar on its facts is Calhoun v. Gulf Oil Cor., 189 Ga. 414 ( 5 S.E.2d 902). There the complaining parties first sought relief in equity, and then postponed a hearing in that court until complaint could be made to the governing body of the municipality. After a hearing by the municipal authorities a decision was rendered against the complainant, and when the case was again considered in the court of equity the decision of the municipal authorities was introduced, and a motion to dismiss the equity suit was sustained. On review in this court it was said: "Having invoked a decision by the city authorities under the statutory procedure, his remedy after an adverse decision would have been by certiorari, . . and not by a resumption of the equitable proceeding, founded upon the original disqualification of the municipal authorities." It follows that in the present case that portion of the amended petition assailing the decision of the Board of Zoning Appeals states no valid ground for relief, because the remedy available to petitioners on that question is certiorari from the superior court.
2. The petition, however, alleges that the operation of a steam laundry on Bass's property would constitute a nuisance per se, causing irreparable injury to petitioners' property. It has been held that a steam laundry is not an obnoxious or unwholesome business, and is not a nuisance per se. Walcher v. First Presbyterian Church, 76 Okla. 9 ( 184 P. 106, 6 A.L.R. 1593); Spann v. Gaither, 152 Md. 1 ( 136 A. 41, 50 A.L.R. 620) In numerous decisions of this court a "nuisance per se" has been defined as an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Simpson v. DuPont Powder Co., 143 Ga. 465 ( 85 S.E. 344, L.R.A. 1915E, 430); Standard Oil Co. v. Kahn, 165 Ga. 575 ( 141 S.E. 643); Thomoson v. Sammon, 174 Ga. 751 ( 164 S.E. 45). In Asphalt Products Co. v. Beard, 189 Ga. 610 ( 7 S.E.2d 172), it was said that "equity will not enjoin, as a nuisance per se, `an act, occupation, or structure which is [not] a nuisance at all times or under all circumstances, regardless of location or surroundings,' . . or enjoin, as a nuisance per accidens, an act, business, occupation, or structure, which, not being a nuisance per se, does not become a nuisance by reason of the particular circumstances of its operation or the location and surroundings, as by some improper manner of operation or improper connected acts." The petition makes no attempt to describe the steam laundry, to give its appearance, structural material, manner of operation, or any results flowing from its presence and operation, but rests the case upon general averments that petitioners' properties will be irreparably injured by the mere presence of the steam laundry. These allegations of irreparable injury, supported by no single allegation of fact, are legal conclusions, and do not constitute valid averments. In Burrus v. Columbus, 105 Ga. 42 ( 31 S.E. 124), it was said: "It is well established that the mere allegation of irreparable injury is not sufficient to authorize the granting of an injunction, but facts must be alleged upon which the charge of irreparable injury is predicated, in order that the court may be satisfied as to the nature of the injury. . . Whether the damage is or is not irreparable, is a conclusion of law which the court draws from the facts and circumstances as set forth in the petition. Justices v. Griffin, 11 Ga. 246. Hence, `facts must be set forth, specifications of the injury made, so that an intelligent mind may understand how and to what extent there will be injury.'" Under the rulings made the steam laundry is not a nuisance per se, and the mere conclusions that it will cause injury to petitioners' property are insufficient to show that it is a nuisance per accidens. It follows that the petition as amended failed to allege injury entitling petitioners to the relief sought. A decision on the constitutional questions, if properly raised, is unnecessary; for the result would be the same, regardless of how those questions might be decided. The petition alleged no cause of action, and the general demurrer was properly sustained. This decision controls adversely to the plaintiffs the assignment of error on the judgment denying an injunction.
Judgment affirmed. All the Justices concur.