Enzor v. Askew

Gkice, Justice. 1. A petition'to enjoin erection and operation of a gasoline filling-station within an area declared to be a restricted zone, the use of the property in which was limited to residential purposes, under the authority of the act approved January 10, 1938 (Ga. B. Ex. Sess. 1937-1938, p. 414), as amended by the act approved March 24, 1939 (Ga. L. 1939, p. 406), was not subject to demurrer, on the grounds: (a) That the “petition fails to allege compliance by the Commissioner of DeKalb County, Georgia, in passing the zoning ordinance relied on, with the terms of the statute on which his authority in the premises depends;” the petition setting forth the written consent of the owners of fifty-one per cent, of the real property within the zone, (b) Because it appears that plaintiff’s property is not located within the zoned area; the petition alleging that complainant’s property, consisting of a house and lot, is located across the street from the said zoned area, (c) That no facts are set forth showing “any legal damage which plaintiff would suffer from the erection of such a structure;” the petition alleging that the erection of the proposed filling-station would depreciate the value of plaintiff’s property in such a manner that the amount of her damages could not be ascertained, and hence would be irreparable; that the filling-station would be a source of annoyance and worry, would increase the hazard of traffic accidents, especially for children, and create in that area an unfavorable influence in which to bring up children, (d) Because the acts above referred to violate the due-process clauses in the constitution of this State, art. 1, sec. 1, par. 3 (Code, § 2-103), and in the fourteenth amendment to the constitution of the United States (Code, § 1-815). 2. The court properly overruled the demurrer to the petition. Howden v. Savannah, 172 Ga. 833 (159 S. E. 401). ■Judgment affirmed. All the Justices concur. *577 Paul Donehoo, J. R. Tenable, and E. W. Fountain, for plaintiff in error. G. N. Bynum, contra.