McCamy v. DeKalb County

246 Ga. 293 (1980)

271 S.E.2d 214

McCAMY et al. v. DeKALB COUNTY et al.

36287.

Supreme Court of Georgia.

Submitted May 30, 1980.

Decided September 9, 1980.

Robin K. Warren, for appellants.

James H. Weeks, for appellees.

JORDAN, Presiding Justice.

Robert J. McCamy and Robert S. Jordan sued the DeKalb County Board of Commissioners in the DeKalb Superior Court alleging that the R-100 zoning (single family residential) of their DeKalb County real estate was unreasonable, and therefore, unconstitutional, and, that, consequently, the Board's denial of their written request to rezone said real estate to C-1 (local commercial) and R-A5 (single family attached residential) was similarly unconstitutional.

The Board made a motion for summary judgment premised on the plaintiffs' failure to make their constitutional attack on the R-100 zoning of their DeKalb County real estate prior to the filing of their complaint in the DeKalb Superior Court.

The trial court granted the Board's motion and plaintiffs appeal. We affirm.

The record establishes that the plaintiffs did not make a constitutional attack on the R-100 zoning of their DeKalb County real estate in the written request to rezone which they filed with the Board. Further, the plaintiffs admit that neither they nor their attorney "appeared when the plaintiffs' rezoning case came on to be heard [before the DeKalb County Board of Commissioners] on November 27, 1979."

"A constitutional attack on a zoning classification cannot be made for the first time in the superior court." DeKalb County v. Post Properties, 245 Ga. 214, 217 (263 SE2d 905) (1980).

Judgment affirmed. All the Justices concur.