Alabama Farm Bureau Mut. Cas. Ins. Co., Inc. v. Board of Adjustment of Town of Hanceville

Citation470 So.2d 1234
PartiesALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, INC. v. BOARD OF ADJUSTMENT OF the TOWN OF HANCEVILLE, Alabama, A Municipal Corporation. Civ. 4506.
Decision Date16 January 1985
CourtAlabama Court of Civil Appeals

Finis E. St. John IV of St. John & St. John, Cullman, for appellant.

S. Wayne Fuller and Martha E. Williams, Cullman, for appellee.

ROBERT M. PARKER, Retired Circuit Judge.

This is a zoning case. The appellant attempted to secure a variance that would enable it to maintain a mobile trailer, as an office, in an area zoned B-2 (general business). The circuit court, on stipulated facts, exhibits, and depositions, upheld the Board of Adjustment's refusal to grant a variance.

It was stipulated to the court that appellant was given a variance by the Municipal Planning Commission to place the trailer on the Lambert property. This was apparently several years prior to 1980. Appellant lost its lease and sought to move the trailer to the DeLorme property, which was also zoned B-2. It was further stipulated that the ordinance creating the Municipal Planning Commission was repealed on February 25, 1980, by the City Council; that on December 17, 1979, the Circuit Court of Cullman County in an action, Warren v. Hanceville Water and Sewer Board, CV-79-5062 (Dec. 17, 1979), entered an order as follows: "The usual functions by the Council, the officers and the boards of the City of Hanceville will go forward, including long-range planning both in construction and funding indebtedness." Other stipulations were: On March 5, 1980, the Municipal Planning Commission granted to appellant a twelve-month variance to move the trailer to the DeLorme property; on March 24, 1980, the City Council granted the appellant a variance with no limitations; on March 25, 1980, the city clerk wrote appellant a letter notifying it of the Council's action of March 24, 1980; on April 9, 1980, the appellant purchased the DeLorme property and moved its trailer to that property; in the latter part of 1980, the Municipal Planning Agency was recreated by city ordinance; on October 6, 1981, the Municipal Planning Agency voted the appellant was in violation of the zoning ordinance, and on October 15, 1981, said commission notified appellant of the zoning violation; the appellant appealed to the Board of Adjustment; on February 18, 1982, the appellant notified the City of Hanceville it was in the process of moving its trailer and requested a four-month extension in which to move.

The appellant contends on appeal that the City Council had legal authority to grant appellant a permanent zoning ordinance variance and that the Board of Adjustment of the City of Hanceville and the City of Hanceville are estopped from denying appellant's unlimited variance from the zoning ordinance.

Whether a city council has the power to usurp from the Board of Adjustment its traditionally recognized power to grant a use variance in "unnecessary hardship" cases has been before the courts on numerous occasions. Section 11-52-80(d), Ala. Code (1975), sets out the powers of the Board of Adjustment which includes authorization of variance from the terms of the zoning ordinance. The power and authority of the Board of Zoning Adjustment (to determine that the facts are such as was intended by the legislature to entitle a property owner to a variance from the terms of a zoning ordinance) are not a delegation of legislative authority; the Board of Zoning Adjustment sits as an administrative body performing a quasi-judicial function. Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244 (1951). And, since the Board of Adjustment derives its power directly from the state legislature, such power cannot be circumscribed, altered, or extended by the municipal governing body. Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244 (1951). Accord, Water Works Board v. Stephens, 262 Ala. 203, 78 So.2d 267 (1955). Therefore, the Municipal Planning Commission, not the City Council, had the authority to authorize a variance from the zoning ordinance. The record does not show that the Board of Adjustment was ever abolished as was the Municipal Planning Commission.

Although the doctrine of equitable estoppel is as a general rule...

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    • Supreme Court of Alabama
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