Opinion
26308.
ARGUED FEBRUARY 9, 1971.
DECIDED MARCH 4, 1971.
Zoning. Gwinnett Superior Court. Before Judge Pittard.
G. Hughel Harrison, James W. Garner, for appellants.
Homer Stark, Webb, Fowler Tanner, Jones Webb, Hansell, Post, Brandon Dorsey, W. Rhett Tanner, for appellees.
The plaintiffs, as taxpayers and citizens of Gwinnett County, brought the present action in which they sought to enjoin the construction of a mobile home park on a designated tract of land in Gwinnett County. The trial court, after a hearing, refused to enter a temporary injunction and held that the defendant property owner was not, at that time, by merely grading the property, unlawfully constructing a mobile home park on the premises. The court further held that a use permit issued by the Gwinnett County Planning and Zoning Commission required conditions to be complied with before construction could begin. Thereafter the property owner filed a motion for summary judgment in which it relied upon the transcript of the interlocutory hearing as well as an affidavit and supporting certificates showing compliance with the prerequisites necessary to authorize construction of the mobile home park. The plaintiffs filed a response to such motion for summary judgment in the nature of a brief which set forth the plaintiffs' contentions as to why the motion for summary judgment should not be granted. The trial court granted the motion for summary judgment and the present appeal was filed. Held:
1. The first two enumerations of error seek to raise issues not presented in the trial court. They complain of the trial court's refusal to declare the zoning resolution and the use permit null and void when such an affirmative ruling was not then sought nor supported by any evidence before the trial court.
2. Where as in this case there was no evidence before the court to support the contention of the plaintiffs that the zoning resolution on the use permit was void as a matter of law, and the evidence showed (as conceded by the plaintiffs in their brief in this court) that at the time of the hearing on the motion for summary judgment all conditions upon which the use permit had been issued had been met by the property owner, the trial court properly held that under the record there was no genuine issue of fact and that the movant was entitled to a summary judgment.
Judgment affirmed. All the Justices concur.