Opinion
32125.
ARGUED MARCH 22, 1977.
DECIDED APRIL 20, 1977. REHEARING DENIED MAY 11, 1977.
Zoning; constitutional question. Richmond Superior Court. Before Judge Fleming.
C. Thomas Huggins, N. William Pettys, Jr., for appellant.
Robert C. Daniel, Jr., McGahee, Plunkett, Benning Fletcher, Paul K. Plunkett, C. Thompson Harley, for appellees.
In this case the appellant filed an application with the Richmond County Board of Zoning Appeals to obtain a variance on his property "so that [the] property might be reactivated as a meat packing and animal slaughtering operation, as it did operate for a period of more than 30 years..." The application also stated that the property was zoned heavy industry which prohibited the slaughtering of animals within 300 feet of a residential zone in the county.
After a hearing on the application the County Board of Zoning Appeals denied appellant's application for a variance. The board determined the building in which appellant proposed to slaughter animals was within 300 feet of a residential zone and would thus result in a violation of the zoning ordinance of the county as the prior use of the building for this purpose had been abandoned. Appellant was advised of his right to appeal from this adverse decision but did not do so.
Instead, appellant filed an independent suit in equity against Richmond County seeking a declaratory judgment and permanent injunctive relief. Residents of the neighborhood in which appellant's property is located intervened in the litigation by leave of court. The appellant attacked the constitutionality of the county's comprehensive zoning ordinance as applied to his property and raised other issues for trial. The trial court upheld the constitutionality of the ordinance and submitted the other issues involving factual disputes to a jury for determination. The jury's verdict was adverse to appellant and he appeals from the trial court's judgment thereon and enumerates various rulings of the trial court as error in this appeal. Held:
The board rendered its decision in June, 1975. Appellant brought this suit in October. The Comprehensive Zoning Ordinance permits an appeal within 30 days of the rendition of an adverse decision.
1. Section 32-9 of the Comprehensive Zoning Ordinance of Augusta and Richmond County, adopted March, 1963, revised and reprinted September, 1969, and which is a part of the record in this case, provides an adequate remedy for an aggrieved person to appeal adverse decisions of the Board of Zoning Appeals. Appellant does not attack the constitutional validity of the zoning ordinance as written or the underlying statute (Ga. L. 1957, pp. 420-443, as amended), upon which the ordinance is based. Therefore, appellant should have pursued his right of appeal under the ordinance from the adverse decision of the Board of Zoning Appeals. Coffey v. City of Marietta, 212 Ga. 189 (2) ( 91 S.E.2d 482) (1956). Cf. Paer v. Guhl, 236 Ga. 768 ( 225 S.E.2d 261) (1976).
We do not address the question of whether Hunt v. McCollum, 214 Ga. 809 ( 108 S.E.2d 275) (1959), has been effectively overruled or limited by Barrett v. Hamby, 235 Ga. 262 ( 219 S.E.2d 399) (1975), and, if not, whether the Hunt doctrine is applicable to this case. Cf. Hall Paving Co. v. Hall County, 237 Ga. 14, 15 ( 226 S.E.2d 728) (1976), and Addis v. Smith, 225 Ga. 157, 158 ( 166 S.E.2d 361) (1969).
2. In addition, we conclude that the comprehensive zoning ordinance of Augusta and Richmond County under review is not unconstitutional as applied to appellant's property in this case by the appellee county. See Schofield v. Bishop, 192 Ga. 732 (2, 3) ( 16 S.E.2d 714) (1941); Matthews v. Fayette County, 233 Ga. 220 ( 210 S.E.2d 758) (1974); Barrett v. Hamby, 235 Ga. 262 ( 219 S.E.2d 399) (1975); and Guhl v. Par-3 Golf Club, Inc., 238 Ga. 43 ( 231 S.E.2d 55) (1976). Cf. Tuggle v. Manning, 224 Ga. 29 ( 159 S.E.2d 703) (1968).
3. It is unnecessary to decide the remaining enumerations of error dealing with the trial judge's instructions and the verdict of the jury, in view of the above disposition of the case.
Judgment affirmed. Nichols, C. J., Undercofler, P. J., Ingram and Hill, JJ., concur. Jordan and Hall, JJ., concur in the judgment only.