Opinion
36108.
DECIDED APRIL 12, 1956.
Construction of zoning ordinance. Before Judge Hicks. Floyd Superior Court. December 20, 1955.
Horace T. Clary, Parker, Clary, Kent Grubbs, for plaintiff in error.
Wright, Rogers, Magruder Hoyt, contra.
The trial court did not err in reversing the decision of the Board of Adjustments of the City of Rome.
DECIDED APRIL 12, 1956.
Shadyside Memorial Gardens, Inc. (defendant in error here), as owner of a tract of land consisting of approximately two acres within the city limits of Rome, proceeded to lay out a cemetery, and, after having obtained a license from the city authorities to do so, took steps to sell burial lots on said tract. The Chief of the Rome Fire Department, W. T. McKinney, who is in charge of the zoning-law enforcement within the city, had the license revoked and ruled that the use of the two-acre tract as a cemetery was in violation of the zoning ordinance of the City of Rome. To this ruling of the Chief of the Rome Fire Department the defendant in error appealed to the Board of Adjustments of the City of Rome, which board under the charter of the City of Rome was the proper group to hear the appeal. Upon the hearing of the appeal before said Board of Adjustments the defendant in error through Dudley Magruder, Jr., Forrest H. Shropshire, and Penn Nixon, officers of the corporation, Shadyside Memorial Gardens, Inc., testified that the defendant in error had acquired the property in question for the purpose of establishing and developing a cemetery; that the property is located in an R-1 zone according to the zoning ordinance of the City of Rome; but that it had been their opinion that the zoning ordinance and the provisions of R-1 zones did not preclude the operation of a cemetery therein. They called attention to the fact that, upon the adoption of the zoning ordinance of the City of Rome in 1948 three cemeteries existed within the city limits, and two of these cemeteries were classified as R-1A, which is a higher and more restricted classification than R-1; and that the third cemetery was classified as R-1. In 1955 the city accepted and included within the city limits a new fourth cemetery which is located and designated as an R-1A zone, this cemetery being privately owned and operated for a profit; that the zoning ordinance of the City of Rome nowhere in any of its provisions mentions a cemetery or cemeteries, and does not provide either for their inclusion in or exclusion from any zone whatever; that, by necessary implication from the classification of existing cemeteries and from the classification of the fourth cemetery recently established within the city limits, they assumed that cemeteries were allowed in zones R-1A and R-1.
The defendant in error through its officers further testified that, in addition to single family dwellings, a number of uses are permitted by the zoning ordinance in zone R-1A, which are not inconsistent with the general spirit of the ordinance with respect to cemeteries, in that the use permitted includes schools, churches, Sunday schools, and educational buildings, playgrounds and recreational facilities under the supervision of the city, parks and parkways, libraries, community or neighborhood centers, public buildings, and buildings used by the people as meeting places. The defendant in error further called attention to the fact that zone R-1 is a restricted classification and that, in addition to all of the uses permitted in R-1A, the uses permitted in R-1 include home occupations and trades, professional offices such as doctors, lawyers, dentists and teachers, and vegetable gardens provided no signs, displays, or stands are used in conjunction therewith. The defendant in error contended that these uses, particularly with the flower and vegetable garden provisions, since these would be commercial ventures, were not inconsistent with the operation of a cemetery and evidenced an intention to allow the establishment of a cemetery therein. The appellant, defendant in error, further testified that, in reliance upon its belief that a cemetery did not violate the provisions of the zoning ordinance of the City of Rome, it had proceeded to expend substantial amounts of money in developing the property, securing plats and surveys, and had actually sold approximately fifty burial spaces; that it would have to refund the money for the burial spaces in the event it is not permitted to proceed and the appeal is not granted; and that this would cause the defendant in error to suffer substantial hardship and considerable financial loss. The appellant also testified that the cemetery would be developed in an attractive manner, and would be an asset to the City of Rome; and that arrangements were being made to establish a perpetual trust to provide perpetual care and maintenance. The defendant in error further testified that it did not consider the property suitable for a development as a residential section, since it lies between a predominantly white section and a negro section, and is poorly located for residential development. The defendant in error then submitted evidence from three real estate brokers, to the effect that they considered the land unsuitable for development as a white residential section, one of the brokers stating that he considered it unsuitable for development as any type of residential section, while two stated that they thought it might be developed as a residential area for colored homes.
Mr. and Mrs. Boswell, who own property adjoining the proposed cemetery on the south side and occupy the premises as a dwelling, stated that they had lived in their home for many years and had improved it; and that they objected to the establishment of a cemetery and believed that it would be undesirable and would decrease the value of their property. A Mr. Crimes, who lives next door to the Boswell house, but whose property does not adjoin the proposed cemetery, stated that he would not object to the property being developed as a white cemetery, but would object to it being used as a cemetery for negroes. He also testified that he believed it would diminish the value of his property. John Strange testified that he objected to the establishment of the cemetery, and that his mother owned the property adjoining the Crimes property on the south; that the property was rented to white tenants; and that he believed that the establishment of a cemetery would decrease the value of their property. It was brought out in this connection that the Strange property is bordered on the south by an M-1 zone according to the Rome zoning ordinance, which is classified as an industrial district, and that, according to the ordinance, a building or premises in such a zone may be used for any purpose whatsoever not in conflict with any ordinances of the City of Rome regulating nuisances, except certain types of hazardous plants, which require prior approval by the City Commission. It was also brought out that at the present time the property to the south of the Strange property is being used as a negro recreation area and baseball field. Herman Ingram, who owns three houses on an adjoining street, also appeared and objected to the establishment of a cemetery. He stated that his property is located approximately one and one-half blocks from the proposed cemetery property, but that he believes the cemetery would decrease the value of his property. It was brought out that one of the houses which he owns is bordered by the M-1 section described above, and that the other two houses are farther from the proposed cemetery than the house which borders on the existing M-1 zone.
Since it was considered to be in evidence, a copy of the zoning ordinance of the City of Rome was attached to the extract of the proceedings as Exhibit A. It was agreed that, at the time of the adoption of the original zoning ordinance, three cemeteries located within the city limits of the City of Rome were classified either as R-1 or R-1A; and that a fourth cemetery, which was established since the enactment of the ordinance, and is privately owned and operated for a profit, and whose method of operation and purpose is substantially identical to the proposed cemetery of the defendant in error, had been classified as R-1A. `It was also agreed that the present ordinance of the City of Rome does not make provision or reference in any manner whatever to a cemetery other than the classification of the four now existing cemeteries in zone R-1 or R-1A.
It was further agreed that the land in question is bounded on two sides by the present city limits, and lies between residential property occupied by white persons and property occupied as residences by negroes; and that it lies approximately 150 feet from a section which is already zoned as M-1.
The Board of Adjustments of the City of Rome voted unanimously to deny the appeal of the defendant in error, and to affirm the order of the Building Inspector, Fire Chief W. T. McKinney of the City of Rome Fire Department, ordering the appellant, Shadyside Memorial Gardens, Inc., to cease the operation of its cemetery. Thereupon the defendant in error, Shadyside Memorial Gardens, Inc., appealed to the Superior Court of Floyd County.
After reviewing the agreed statements of fact, as above set out, and after hearing argument of counsel, the trial judge issued an order granting the appeal of the defendant in error and overruling and declaring the decision of the Board of Adjustments of the City of Rome null and void; and it is to this ruling of the Superior Court of Floyd County that the plaintiff in error excepts and brings the case to this court for review.
The construction of a zoning ordinance, under the facts, is a question of law for the courts, and in construing same the cardinal rule is to ascertain and give effect to the intention of the lawmaking body. Zoning ordinances not only must be non-discriminatory and reasonable, but must be applied in a non-discriminatory and reasonable manner and are to be strictly construed in favor of the landowner. Moorehouse v. Hunt, 235 Wis. 358 ( 291 N.W. 745); Yokley Zoning Law and Practice, pp. 466, 467; Illinois Bell Telephone Co. v. Fox, 402 Ill. 617 ( 85 N.E.2d 43); Monument Garage Corporation v. Levy, 266 N. Y. 339 ( 194 N.E. 848).
Under the agreed statement of facts in this case, it is crystal-clear that the intention of the governing authorities of the City of Rome, since the adoption of the Rome Zoning Ordinance in 1948 and up to the time of the filing of this action, was to permit cemeteries in R-1 and R-1A zones. Such intention on the part of the Rome authorities was reaffirmed in 1954 by the action of the city authorities in classifying as R-1A a private cemetery which was at that time taken into the city. Certainly to deny defendant in error the right to operate its cemetery under the agreed facts in this case is unreasonable and discriminatory and without reasonable basis to be justified or made valid under the police power of the city.
Therefore, the trial court did not err in reversing the decision of the Board of Adjustments of the City of Rome upholding the action of the building inspector.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.