DeKalb County v. Blalock Machinery & Equipment Co.

Marshall, Justice,

dissenting.

Although the majority relies upon cases holding that the applicant for rezoning must show more than merely that he could make a more profitable use of the property if rezoned, the plaintiff here presented evidence that he had tried for seven years to sell the property as presently zoned, and was unable to sell it at all, for a number of reasons. The trial judge, as the trier of the facts, has weighed all of the evidence and concludes that the plaintiff had made a genuine effort to sell the property, that he was unable to because of its zoning, and hence that the zoning was unconstitutional. These findings are all supported by some competent evidence, hence should be binding on this court.

The majority, on the other hand, after noting the conflicting evidence, now chooses to weigh the county’s evidence more heavily and reverse. I think it is very significant that the rezoning sought by the plaintiff here was supported by the county’s Planning and Zoning Department as well as its Planning Commission (both non-political bodies), and opposed only by the political Board of Commissioners (whose ruling the trial court overturned).

Unless this court is to become a super zoning board, we must let the trial courts resolve the issues of fact, and not get into the business *675of weighing the evidence there adduced. Furthermore, the issue of the size of the tract of land involved is not a factor in this case, inasmuch as the trial court’s order does not require any specific classification of zoning — for the whole tract or any portions thereof — but merely holds that the R-150 zoning of the entire tract is unconstitutional, thus giving the Board of Commissioners leeway to rezone the component parts of the whole in accordance with the evidence, even permitting modifications to fixed zoning, as was done in an adjacent subdivision and which the plaintiff here offered to accept.

I would affirm the trial court’s judgment, and respectfully dissent.