Summary
reversing lower court ruling that zoning requirements were facially unconstitutional, but remanding to allow the plaintiff to show that the requirements had no real and substantial relationship to public health and safety
Summary of this case from Patel v. Tex. Dep't of LicensingOpinion
34558.
ARGUED FEBRUARY 20, 1979.
DECIDED APRIL 5, 1979.
Constitutionality of ordinance. Rockdale Superior Court. Before Judge Henley.
Hall, White Spix, Lloyd E. N. Hall, for appellants.
James H. Weeks, for appellees.
In 1978 a suit was brought by numerous Rockdale County business concerns challenging the constitutionality of a newly-enacted county ordinance requiring a fence and buffer space around all open storage and junkyard businesses. Section 4 of the ordinance provided a variance procedure. Without hearing any evidence, the trial court ruled that the ordinance was valid for future businesses but was invalid on its face as applied to preexisting businesses, and that such preexisting businesses must be either "grandfathered" into the regulation scheme or proceeded against by eminent domain. The county appeals the ruling concerning preexisting businesses, and we reverse.
The attack on the ordinance is that it is for beautification purposes only and thus is invalid under State Hwy. Dept. v. Branch, 222 Ga. 770 ( 152 S.E.2d 372) (1966). We disagree. The regulation of junkyards in promoting the community's health, morals, safety and welfare is a traditional police power function. Shurman v. City of Atlanta, 148 Ga. 1 ( 95 S.E. 698) (1917). The Constitution requires, however, that the regulations not be unreasonable, arbitrary or capricious, and that the means adopted have some real and substantial relation to the object to be attained. See generally Annots., Zoning Ordinance — Scrap Metal Plants, 50 ALR3d 837 (1973); Regulation of Junk Dealers, 45 ALR2d 1391, § 17 (1956).
Moreover, though we find no Georgia case directly in point, well reasoned decisions from other jurisdictions have upheld very similar fencing and setback requirements for junkyards and have applied them to preexisting businesses. E.g., Rotenberg v. City of Fort Pierce, 202 So.2d 782 (Fla.App. 1967); Lenci v. City of Seattle, 63 Wn.2d 664 ( 388 P.2d 926) (1964); Vermont Salvage Corp. v. Village of St. Johnsbury, 113 Vt. 341 ( 34 A.2d 188) (1943). Cf., Warholak v. Northfield Township Supervisor, 57 Mich. App. 360 ( 225 N.W.2d 767) (1975); Cox v. Township of New Sewickley, 284 A.2d 829 (Comm. Ct. of Pa. 1971). There are, of course, decisions finding particular regulatory schemes invalid. E.g., State v. Vestal, 281 N.C. 517 ( 189 S.E.2d 152) (1972). It follows that the trial court erred in ruling the ordinance unconstitutional on its face as applied to existing businesses. The case must be remanded for a hearing at which plaintiffs may introduce evidence attempting to show that the ordinance is unconstitutional as applied to them. See generally Pope v. City of Atlanta, 242 Ga. 331 ( 249 S.E.2d 16) (1978); Cross v. Hall County, 238 Ga. 709 ( 235 S.E.2d 379) (1977) (and concurring opinion); Wilder v. State, 232 Ga. 404 ( 207 S.E.2d 38) (1974).
The ordinance enjoys a presumption of validity. See Hall Paving Co. v. Hall County, 237 Ga. 14 ( 226 S.E.2d 728) (1976).
Judgment reversed and remanded. All the Justices concur, except Jordan, Bowles and Marshall, JJ., who concur in the judgment only.