Barrett v. Hamby

Ingram, Justice,

dissenting.

The majority opinion is a sharp departure from the view taken historically by this court in reviewing zoning cases. I believe this decision invades the constitutional province of the county governing (zoning) authority. What the court in effect is holding is that it will now review any local zoning decision based on conflicting evidence to determine whether "it bears a substantial *270relation to the public health, safety, morality or general welfare.” This is an awesome task, — far beyond the traditional court review in Georgia, and far beyond even the majority opinion of the 4 to 3 decision of this court in Tuggle v. Manning, 224 Ga. 29 (159 SE2d 703).

The implication of the present decision is that every local zoning authority in Georgia (potentially every county and municipality in the state) must now justify to the court every disputed zoning decision it makes. The great danger inherent in this ruling is that it will necessarily substitute this court’s judgment for the local governing authority’s judgment when the evidence is in conflict, as it is in the present case.

Since this decision moves the final exercise of zoning power out of its constitutional resting place into the hands of the judiciary, I must dissent to it. The courts will not be able to handle the floodtide of litigation which could well result from this far-reaching decision. My view of the court’s role in zoning matters is summarized in Olley Valley Estates v. Fussell, 232 Ga. 779, 786 (208 SE2d 801). I adhere to the understanding expressed there of the Georgia cases which I think are sagacious and should continue to be followed by this court.

I am authorized to state that Justice Jordan joins in this dissent.