Alabama Power Co. v. Brewton Bd. of Zoning Adjustment
| Citation | 339 So.2d 1025 |
| Parties | ALABAMA POWER COMPANY, a corp. v. BREWTON BOARD OF ZONING ADJUSTMENT et al. SC 1793. |
| Decision Date | 03 December 1976 |
| Court | Alabama Supreme Court |
Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellant.
Tonsmeire, McFadden & Riley, Mobile, James E. Hart, Jr., Brewton, for appellee, Annie C. Jernigan.
Alabama Power Company made application to the Brewton Board of Zoning Adjustment for a variance from the Brewton zoning ordinance which governed the proposed site of an electrical substation. A hearing was held and the variance was denied. The Power Company appealed to the circuit court, where the cause was tried de novo without a jury. Appellee Jernigan, one of the affected landowners, was permitted to intervene in the circuit court. After a hearing, the trial court entered its order denying the Power Company a variance. This appeal is from that judgment.
The evidence showed that the Power Company had bought a vacant lot which was zoned for a single family residence use. A variance could be granted by the Board of Zoning Adjustment, subject to such conditions as the Board required to preserve and protect the character of the area and otherwise promote the purpose of the zoning ordinance.
The Power Company had previously applied for and was granted a variance on the subject lot prior to the current application, but the action of the Board was set aside by the circuit court after Mrs. Jernigan filed an action for declaratory judgment challenging the action of the Board on the ground that it was illegally constituted at the time it granted the variance. The judgment of the trial court in that action was not appealed and is not challenged here.
The Power Company argues that the trial court erroneously denied its application for a variance in this case because the evidence shows that it has suffered unnecessary hardship in the denial of the application, that the injury to it is unique, that the public interest would better be served by allowing the variance, and that that factor should be weighed along with the effect that the variance would have on the surrounding property.
Evidence adduced on behalf of the Power Company tended to show that the Brewton area required an additional substation, that engineering studies indicated that the area in which the lot was situated was the most desirable area for such a substation and that the Power Company had purchased the lot for that purpose, having paid approximately $4,000 for it, and that it was the only site available in the area. It denied that the substation would have any adverse effect on the surrounding property. The lot had been purchased after the first variance was granted, and before the court declared that action of the Zoning Board void.
On the other hand, Mrs. Jernigan, as intervenor in opposition to the variance, put on evidence which indicated that the presence of an electrical substation in the neighborhood would have an adverse effect on surrounding property values, that it would be unsightly, and would emit a noise which would disturb the peaceful enjoyment of surrounding property. There was some evidence that the presence of the installation would likely interfere with television reception in the area. Mrs. Jernigan denied the Power Company's assertion that the lot involved was the only suitable lot available for the construction of a substation.
Under the statutes creating it, a board of adjustment has the authority to grant variances from zoning ordinances. Under Title 37, § 781, Code, the boards of adjustment are given the power to hear and decide appeals from decisions of administrative officials, to decide special exceptions, and:
'. . . To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done. . . .'
In the instant case, the Board of Adjustment refused to grant the variance and the Power Company appealed, as it had a right to do, to the circuit court. Under our statute the appeal is de...
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...prevent "unnecessary hardship," i.e., to grant variances from the zoning ordinance's requirements. See Alabama Power Co. v. Brewton Board of Zoning Adjustment, 339 So.2d 1025 (Ala.1976); Priest v. Griffin, 284 Ala. 97, 222 So.2d 353 The term "variance" can encompass anything from a slight m......
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