ZARING v. ADAMS et al., commissioners

Supreme Court of Georgia1939-05-09No. No. 12766

188 Ga. 97

Summary · law.co

Holding. The court affirmed the lower court's decision to sustain the board's demurrer and dismiss the petition for injunction, holding that a property owner cannot obtain a preliminary injunction to prevent a zoning authority from even considering proposed regulations based merely on alleged future constitutional defects, as the proper remedy is to challenge the regulation's validity when enforcement is actually attempted.

John H. Zaring Jr. owned property in Fulton County where he operated business enterprises. When the county board of commissioners proposed zoning regulations that would restrict the property to residential uses and prevent future business expansion, Zaring filed suit seeking to block the board from even considering the regulations. He argued both that the state law authorizing the board to create zoning districts was unconstitutional and that the proposed regulations themselves would violate the constitution.

The court rejected Zaring's request for an injunction. The court explained that injunctive relief is available only when an action will cause irreparable harm that cannot be remedied through other legal means. Here, the mere passage of a zoning regulation does not itself inflict such injury. Zaring would have an adequate opportunity to challenge the regulation's legality in court if and when the board actually attempts to enforce it against him by preventing a specific use of his property. Until that enforcement action occurs, the harm is not sufficiently imminent or irreparable to justify blocking the board's proceedings.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Justiciability and ripeness of constitutional challenges to zoning legislation
Requirements for obtaining preliminary injunctive relief in equity
Timing of judicial review of zoning regulations

Procedural posture

Zaring appealed from a superior court order sustaining the board's demurrer and dismissing his petition for an injunction.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Eexd, Chief Justice.

John H. Zaring Jr. owned two tracts of land in Fulton County, on which he operated certain business enterprises. The board of commissioners of roads and revenues of said county gave notice of its intention to consider the matter of zoning this and other property and restricting the same to resi clential uses, in accordance with a petition filed by George Wilson for this purpose. Apprehending that his present business enterprises would prosper, and that some time in the future it would be advisable and necessary for him to augment his facilities by erecting additional buildings on his property to be used in his business, all of which the proposed zoning regulations, if adopted and passed, would prohibit, he filed in the superior court a petition seeking an injunction against the members of said board, to restrain them from considering and passing said proposed regulations, contending, as a basis therefor, that the act of the General Assembly approved December 22, 1938, vesting in said board of commissioners the power to establish zoning districts and restricting the uses of property therein, is unconstitutional, for various reasons (unnecessary to state here, under the view that we take of the case); further contending that said regulations themselves would be unconsitutional for various reasons; and alleging that he believed that the board will zone said property as above stated. The defendants’ demurrer was sustained, and the plaintiff excepted.

The writ of injunction, commonly referred to as the “strong arm of equity,” as a general rule may be sought only where there is a manifest necessity therefor to prevent irreparable injury to some right of the plaintiff, by reason of impending acts or conduct of another. Accordingly, it may not be resorted to where it does not appear that the acts and conduct sought to be enjoined will, if committed, work substantial and irreparable injury to the plaintiff. In the present case the plaintiff seeks to enjoin the consideration of and passage by the board of commissioners of a proposed zoning regulation which will be applicable to certain property owned by him. The passage by the board of such a proposed regulation will not of itself work such an injury to the plaintiff. It will be in sufficient time to appeal to the courts to determine the legality of this regulation when there is in some manner an attempt to enforce it so as to prevent the plaintiff from using his property in a way contrary to its terms, if the occasion should ever arise when the plaintiff may actually desire to do so. See Walton v. Reid, 148 Ga. 176 (96 S. E. 214); Brimer v. Jones, 185 Ga. 747; Standard Cigar Co. v. Doyal, 175 Ga. 857 (166 S. E. 434); 14 R. C. L. 437. Cf. Smith v. Atlanta, 161 Ga. 769 (132 S. E. 63, 54 A. L. R. 1001); Commissioners of Glynn County v. Cate, 183 Ga. 111 (187 S. E. 636). The judgment sustaining the demurrer and dismissing the petition was not erroneous.

Judgment affirmed.

All the Justices concur.