Summary
In Whipkey v. Turner, 206 Ga. 410 (57 S.E.2d 481), the plaintiffs, as property owners in an area zoned by the City of Savannah for residential use only, sought to enjoin the city and one Whipkey, to whom a permit for the erection of a drugstore had been issued, on the ground that the resolution amending the zoning ordinance under which the permit was granted was void for stated reasons and would tend to damage the plaintiffs by lowering the value of their property and other property in the area.
Summary of this case from Mayor of Athens v. Mu Beta of Chi Omega House Corp.Opinion
16886.
JANUARY 9, 1950. REHEARING DENIED FEBRUARY 17, 1950.
Injunction. Before Judge David S. Atkinson. Chatham Superior Court. August 30, 1949.
Douglas, McWhorter Adams, George G. McCoy, Edward M. Hester, and A. Leopold Alexander, for plaintiff in error.
Fred A. Tuten, Julius S. Fine, and John J. Hennessy, contra.
1. Allegations that a city ordinance purporting to amend an existing zoning ordinance, and a building permit issued pursuant thereto, are "null and void" and should be so "adjudged," are insufficient to state a cause of action for injunctive relief, or any equitable relief, against the city.
( a) The holder of a building permit (alleged to be null and void) can not be enjoined from constructing the building authorized by the permit until he has performed some act evidencing an intent to exercise the rights and privileges of the permit. The petition in this case does not allege any act by the defendant pursuant to the building permit.
2. Parties with knowledge that a building may be constructed pursuant to an ordinance and permit of a city (which ordinance and permit may be invalid), must be diligent and act promptly to protect their rights.
( a) Where, as in this case, the parties delayed bringing their action until such time as the defendant had expended large sums for materials and labor, and the building had progressed substantially according to the plan thereof, the plaintiffs are estopped by their acquiescence, or failure to proceed promptly.
No. 16886. JANUARY 9, 1950. REHEARING DENIED FEBRUARY 17, 1950.
Robert Lee Turner and Charles J. Alliffi filed a petition for equitable relief against Winifred H. Whipkey and the Mayor and Aldermen of the City of Savannah. Subsequently, by intervention duly allowed, nine additional parties became plaintiffs to the action. In substance the petition alleged: The plaintiffs are residents and property owners in zoning area "J," established by a zoning ordinance of the City of Savannah pursuant to the powers conferred upon the City by an act of the General Assembly of 1927 (Ga. L. 1927, p. 128), which act does not authorize the city to alter, revoke, or rescind a zoning ordinance or any part thereof. Only residences, apartments, and churches may be erected in zoning area "J." The city has not adopted the provisions of the act of the General Assembly of 1946 (Ga. L. 1946, p. 191), providing for the amendment, revocation, alteration, and rescission of zoning ordinances, and such act is not in effect in the city. On July 29, 1949, an amendment to zoning area "J" was adopted by resolution of the mayor and aldermen of the city, approving the erection of a drugstore on lot 23. On August 13, 1949, pursuant to the resolution, a building permit was duly issued to the defendant Whipkey by authorities of the city. The action of the city in creating a separate zone of a single lot in an isolated area is unreasonable, discriminatory, arbitrary, and in violation of the zoning ordinance, and will tend to damage the plaintiffs by lowering the value of their property and other property in the area. The resolution and the building permit issued pursuant thereto should be adjudged null and void. The conduct of the defendant Whipkey and the city amounts to a threatened or existing tort, is illegal and contrary to equity, and no adequate remedy is provided by law. The injury complained of is irreparable in damages. It can not be measured by pecuniary standards. "The operation of the general rules of law would be deficient in protecting from the anticipated wrongs of this violation of the said zoning ordinance."
The plaintiffs prayed: (1) that a rule nisi issue requiring the defendants to show cause why they should not be enjoined and restrained from the erection and operation of a drugstore; (2) that a temporary injunction be issued against the defendant Whipkey, enjoining and restraining her from the erection of the building; (3) that the defendants be permanently enjoined from erecting or permitting to be erected a store building in area "J"; (4) that process issue; and that the plaintiff be granted other and further relief as may be proper in the premises.
Both defendants filed general demurrers to the petition, and demurred specially to the allegations of paragraph 6, that the conduct of the defendants "amounts to a threatened or existing tort, is illegal and contrary to equity and good conscience, and that no adequate remedy is provided at law for petitioners."
The defendant Whipkey filed an answer, in which she asserted that the ordinance amending zoning area "J", passed by the city, was a valid ordinance. She admitted that a building permit had been issued to her, and denied other material allegations of the petition. For further answer she alleged: About the first of the year, 1949, citizens of the subdivision contacted her husband, requesting that he erect a drugstore for the convenience of the neighborhood, and subsequently, in April, 1949, a house-to-house canvass was made, and approximately 110 property owners and residents joined in a petition to the city to permit the erection of a drugstore in the particular subdivision. The defendant thereupon negotiated for the purchase of a lot at a stipulated consideration, to be consummated if it was determined that the lot could be used for the erection of a drugstore. The only instrumentality whereby the defendant could obtain permission to erect a drugstore was the building and zoning committee of the Mayor and Aldermen of the City of Savannah. The committee had been exercising such authority and discretion, and no question as to their authority to "dezone" had ever been raised. The defendant had a right to assume that the municipality was acting within its charter powers. After due advertisement, the building and zoning committee held three public hearings on the necessity for a drugstore in the neighborhood, and after due hearing, and in the exercise of its discretion, the committee recommended that the petition be granted. The plaintiffs attended these hearings in person or by counsel. On second reading, an ordinance was duly passed on July 29, 1949, permitting a drugstore to be erected and operated on the lot described. Acting solely by reason of the ordinance permitting the construction of a drugstore, the defendant consummated the purchase of the property, secured a building permit, and commenced the building of a drugstore. Certain work has been done in the construction of the building, over 15,000 bricks have been laid, and the cost of labor and materials to date is approximately $8,000. The defendant has acted in good faith, and it would be inequitable and unjust for the defendant to lose her investment, which could result in no benefit to the plaintiffs. Certain of the plaintiffs do not reside in zoning area "J," and the value of the property of others would not be affected by the presence of a drugstore. The plaintiffs have not acted in good faith for the reason that, when the defendant secured a building permit, wide publicity to the granting of the permit was given in a local newspaper; the defendant spent large sums of money in improvement of the grounds and building; the work was done openly in the full view of the public and in the particular view of the plaintiffs, and she had no notice of any objection on the part of the plaintiffs until just before the present suit was filed. The plaintiffs are not entitled to an injunction. With full knowledge of their rights they have been guilty of laches in asserting them, and they have allowed large expenditures to be made by the defendant, who was acting in good faith. She prayed that the relief sought by the plaintiffs be denied, and that she be discharged.
On the hearing for interlocutory injunction, Mrs. Libby Cohen, Robert Lee Turner, Mrs. Emma S. Holt, and Carl S. Ashcraft testified for the plaintiffs. In substance their testimony was to the effect: They were residents of the zoned area or resided in the immediate neighborhood. They had signed petitions protesting the application to rezone lot 23, on which the drugstore was proposed to be erected, and a majority of them had attended the hearings. The erection of a drugstore would injure the value of the property of the plaintiffs and others in the neighborhood. Two or more of the witnesses testified that they had read in a local newspaper an article to the effect that the defendant had no right to build a drugstore in the locality. An attorney of record for the plaintiffs testified that he had examined the city records to see whether or not any valid enactments or ordinances had been passed by the mayor and aldermen; he had made inquiry to find whether an act or resolution was enacted pursuant to the act of 1946; and in so far as he knew or believed, the original zoning ordinance of area "J" was still in effect. On cross-examination, he testified that there had been a great many resolutions passed by the mayor and aldermen in which they undertook took to change or alter zoning areas which had been established. All of these acts were ultra vires.
The defendant, Mrs. Whipkey, testified in her own behalf that she had been acting through her husband, that she did not attend any meetings of the Mayor and Aldermen of the City of Savannah, and knew nothing of what was done except through her husband. Robert J. Warrick testified for the defendants: That he lived next door to the drugstore being erected, and it was his opinion, from the type of construction of the building, that it would have a tendency to elevate the value of his property. He is a real-estate agent. He did not know how far the construction of the building had progressed. The husband of the defendant testified: That he was a registered pharmacist. He had been requested to build a drugstore in the zoned area. After a petition was signed by 110 people, he entered into an agreement to purchase the lot, conditioned on the city granting permission for the construction of the building. He testified with reference to his application and the hearings before the committee, and the progress made on the construction of the building at the time of the hearing. Attached to and made a part of the brief of evidence is a copy of the original zoning ordinance of 1939, the ordinance amending the original zoning ordinance, passed July 29, 1949, the building permit issued to the defendant, and ten photographs showing the progress of the construction of the building and the general character of the neighborhood, and a drawing showing the building as it would appear completed.
At the conclusion of the evidence, the court granted a temporary injunction against the defendant, Mrs. Winifred H. Whipkey, enjoining her from erecting or continuing the erection of a building on the property described in the petition. The defendants except to the judgment overruling their demurrers, and the defendant Whipkey excepts to the grant of the interlocutory injunction.
1. The first question for determination is the ruling upon the demurrers. Under the allegations of the petition it clearly appears that no cause of action was stated against the city. It was not alleged that the city was doing, or would do, any further act with reference to the passage of an ordinance or the granting of a building permit in the zoned area. The city had already acted, after advertisement, notice, and public hearings. There were no allegations in the petition to show that the city had any interest in the construction of the drugstore building. Courts can not restrain that which has already been done; and it appearing from all of the allegations of the petition that the acts of the city complained of were fully consummated, there were no grounds for injunction against the city, and the court erred in overruling the general demurrers of the city. Code, § 55-110; Hapeville-Block Inc. v. Walker, 204 Ga. 462 ( 50 S.E.2d 9), and cases cited.
The plaintiffs allege that the ordinance purporting to amend zoning area "J" is void, and that, consequently, the building permit is void. Treating this allegation as true, the petition does not allege any act or thing done by the defendant Whipkey pursuant to the ordinance or building permit, which would result in injury or damage to the plaintiffs. It is not alleged that the defendant is constructing, or has made any move to construct, a drugstore on such premises. A general demurrer to a petition admits as true all well-pleaded allegations of fact; but on general demurrer the petition is measured by its allegations and not by facts which are known to the court, or which may subsequently be developed, either by an admission in the defendant's answer, or by evidence presented upon a trial. Measured by its allegations, the petition failed to show any present act by the defendant Whipkey which would authorize the grant of an injunction, and it was error to overrule the general demurrer to the petition. Wallace v. Atlanta, 200 Ga. 749 ( 38 S.E.2d 596).
2. The foregoing rulings would dispose of the writ of error. The plaintiffs, however, would have the right to amend their petition at any time before the judgment of this court is made the judgment of the trial court. From the allegations contained in the answer of the defendant Whipkey, and from the evidence produced on the hearing, it appears that the petition could be amended to allege a cause of action, and the case brought to this court a second time. Evidence having been introduced, and the merits of the issue being thus before the court, we deem it advisable to rule upon the second assignment of error, the grant of an interlocutory injunction. If, under the evidence, the plaintiffs are not entitled to injunctive relief, a final disposition might be made of the cause.
The defendant Whipkey's answer and the evidence introduced both raise the issue as to whether or not the plaintiffs would be estopped from seeking to enjoin further acts by Whipkey. The defense of estoppel is not specifically designated in the answer of Whipkey. As a general rule estoppel, to be relied upon, must be pleaded. DeVore v. Baxter, 155 Ga. 109 ( 116 S.E. 610); National Land Coal Co. v. Zugar, 171 Ga. 228 ( 155 S.E. 7). It is not necessary, however, that the pleader should use the word "estoppel," where the allegations are sufficient to show that, in fact, estoppel is an applicable defense. Broderick v. Reid, 164 Ga. 474 ( 139 S.E. 18). The answer of the defendant and the evidence both show sufficient facts to constitute an estoppel. No fact is alleged in the answer, nor does any fact appear from the evidence which would preclude the defendant from the defense of estoppel, either by a violation of the law or by the fraud of the defendant. McDougald v. Bellamy, 18 Ga. 412 (6). On the contrary, it appears that the defendant acted in good faith. After a survey of the territory wherein the building was to be erected, and a petition presented to him containing the names of certain residents of the territory, Whipkey agreed to erect a drugstore, provided permission might be obtained from the city. The contract to purchase property for this purpose was conditioned upon a rezoning of the property by the city authorities. Notice of the application for rezoning appears to have been given by the city, and three public hearings were had upon the application. The plaintiffs, or some of them, were present at such hearings and protested before the committee. The survey, the petition, and the hearings extended over a period of several months. The plaintiffs had ample knowledge of the entire proceedings. Yet it appears from the response of Whipkey, and from the evidence, that after the property was rezoned and a building permit granted by the City of Savannah, the plaintiffs did not seek relief by injunction until after the building had substantially progressed to completion.
In Dulin v. Caldwell Co., 28 Ga. 117, it was held: "A party is not entitled to an injunction who shows that he has been negligent and careless in guarding his rights, and that if he has been subjected to loss it was because he had not attended to his interests in proper time." In Wood v. Macon Brunswick Railroad Co., 68 Ga. 541 (6), it was ruled that the writ of injunction is designed to prevent, and not to undo, and if the application for injunction is delayed until progress or construction has been made at heavy cost, the application should not be granted. In Southern Marble Co. v. Darnell, 94 Ga. 232 (4) ( 21 S.E. 531), it was held: "If the owner stood by while the ditch or canal was being constructed at a heavy expense, and made no objection and took no steps to prevent the work or its consequences, until after completion, he would be estopped from afterwards obtaining an injunction against the use of the ditch or the continuous diversion of the water by means of the same." In Holt v. Parsons, 118 Ga. 895 ( 45 S.E. 690), it was held that a party is not entitled to an injunction who has negligently suffered large expenditures to be made by the other party, upon whom great injury would be inflicted by the injunction. In City of Marietta v. Dobbins, 150 Ga. 422 ( 104 S.E. 444), it was held that the petitioners had knowledge that the paving was being done and took no steps to enjoin the prosecution of the work until it had been almost completed, and that in such circumstances they were estopped by their neglect prior to the filing of their petition for injunction.
Under the evidence in the present case, the defendant Whipkey will be substantially injured and damaged if the plaintiffs are permitted to prevail, after allowing the work to proceed to the point indicated by this record.
Counsel for the plaintiffs cite and rely upon Barton v. Hardin, 204 Ga. 108 ( 48 S.E.2d 882). It is contended that the authority of the City of Savannah to zone does not carry with it the authority to rezone, and that, under the rulings in the Barton case, the ordinance of the city purporting to rezone the property in question is void and ultra vires. The record in the Barton case reveals that the applicants for injunction in that case moved before the publication of the notice required before the amending resolution would become operative. It further appears in the Barton case that the petition for injunction was filed prior to the time any construction was begun upon the premises involved.
It is further contended by the plaintiffs that, under the ruling of Snow v. Johnston, 197 Ga. 146 ( 28 S.E.2d 270), the rezoning of one city lot is unreasonable and arbitrary. The facts of the Snow case make it inapplicable to the facts of the present case. In the Snow case there was no such notice to the applicants for injunction as appears in the present record. It does not appear that the applicants for injunction in the Snow case had any notice of what was proposed prior to the actual changes in the building to make it suitable for the purposes intended. No notice by publication was given, and public hearings by the mayor and council, such as are shown in the present case, were not had. The facts in Barton v. Hardin, supra, and in Snow v. Johnston, supra, clearly distinguish those cases from the present case.
Under all of the facts shown by the record in the present case, the plaintiffs have not given effect to the equitable rights of the defendant, in that, through their neglect and delay, it is impossible to grant the relief sought without material damage to the defendant, which might have been avoided had the plaintiffs moved at the proper time.
Judgment reversed. All the Justices concur.