American Petroleum Equipment & Const. Inc. v. Fancher

• Decision Date: 19 September 1997
• Citation: 708 So.2d 129
• Parties: AMERICAN PETROLEUM EQUIPMENT AND CONSTRUCTION, INC., et al. v. Della K. FANCHER, et al. Della K. FANCHER, et al. v. AMERICAN PETROLEUM EQUIPMENT AND CONSTRUCTION, INC., et al. CITY OF BIRMINGHAM v. Della K. FANCHER, et al. 1951603, 1951648 and 1951650.
• Court: Alabama Supreme Court

Page 129

708 So.2d 129

AMERICAN PETROLEUM EQUIPMENT AND CONSTRUCTION, INC., et al. v. Della K. FANCHER, et al.

Della K. FANCHER, et al. v. AMERICAN PETROLEUM EQUIPMENT AND CONSTRUCTION, INC., et al.

CITY OF BIRMINGHAM v. Della K. FANCHER, et al.

1951603, 1951648 and 1951650.

Supreme Court of Alabama.

Sept. 19, 1997.

Rehearing Denied Dec. 19, 1997.

Demetrius C. Newton, Rowena Teague, and Michael M. Fliegel, city attys. office, Birmingham; and John D. Clements, F. A. Flowers III, and Mark M. Lawson of Burr & Forman, for the City of Birmingham and American Petroleum Equipment and Construction, Inc.

Michael C. Quillen, Frank C. Galloway, Jr., and Helen C. Foster of Walston, Stabler, Wells, Anderson & Bains, Birmingham, for Della K. Fancher, et al.

PER CURIAM.

These three appeals arise from a zoning case concerning a 4 1/2-acre tract of land located in Birmingham on U.S. Highway 280, a quarter mile north of the U.S. 280/I-459 interchange. The tract was rezoned by the Birmingham City Council to allow development of a hotel and service station. The trial court held the rezoning to be arbitrary and capricious, and therefore null and void. We reverse and remand.

On January 17, 1995, the Birmingham City Council passed Ordinance No. 1538-G, which rezoned this tract from "Contingency Office-Institutional District" ("C O-I") to "General Business District" ("B-2"). Della K. Fancher, Dirk Thomas, Mark Gamble, and J. Terry Bethea, homeowners and residents of the Cahaba Heights neighborhood, filed this action, alleging that the rezoning ordinance was arbitrary and capricious and not reasonably related to the protection of the public health, safety, morals, general welfare, and general conscience of the community. They sued the City of Birmingham; its mayor, Richard Arrington, in his official capacity; Aldrich Gunn, William Bell, E.L. Blankenship, Antris Hinton, Roosevelt Bell, and Linda Coleman, in their official capacities as members of the City Council; and American Petroleum Equipment and Construction, Inc., the corporation that had applied for the rezoning. The trial court held that the rezoning was arbitrary and capricious; ruled that Ordinance 1538-G was therefore null and void; and reinstated the original classification. American Petroleum Equipment and Construction, Inc., and the Birmingham City Council appealed, primarily arguing that the trial court erred in holding that the City Council's actions in adopting the ordinance were arbitrary and capricious. The plaintiffs cross-appealed, claiming that the trial court erred in not awarding them attorney fees.

It is settled law that the Alabama Legislature has delegated to municipal legislative bodies, such as city councils, the power and authority to enact zoning ordinances. Section 11-52-76, Ala.Code 1976, provides that "[t]he legislative body of such municipality shall provide for the manner in which such [zoning] regulations and restrictions and the boundaries of such districts shall be determined, established and enforced." The power to amend, supplement, or change zoning ordinances "as may be necessary" from "time to time" is also delegated to municipal legislative bodies. Id. See BP Oil Co. v. Jefferson County, 571 So.2d 1026, 1028 (Ala.1990), citing Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926).

In Homewood Citizens Association v. City of Homewood, 548 So.2d 142 (Ala.1989), this Court discussed the law applicable to a court's review of a city's action in zoning cases, stating that "[w]hen a municipal body acts either to adopt or to amend a zoning ordinance, it acts in a legislative capacity and the scope of judicial review of such action is quite restricted." 548 So.2d at 143. The restrictions on this Court's review of the validity of a zoning ordinance have been explained as follows:

" 'Zoning is a legislative matter, and, as a general proposition, the exercise of the zoning power should not be subjected to judicial interference unless clearly necessary. In enacting or amending zoning legislation, the local authorities are vested with broad discretion, and, in cases where the validity of a zoning ordinance is fairly debatable, the court cannot substitute its judgment for that of the legislative authority. If there is a rational and justifiable basis for the enactment and it does not violate any state statute or positive constitutional guaranty, the wisdom of the zoning regulation is a matter exclusively for legislative determination.

" 'In accordance with these principles, it has been stated that the courts should not interfere with the exercise of the zoning power and hold a zoning enactment invalid, unless the enactment, in whole or in relation to any particular property, is shown to be clearly arbitrary, capricious, or unreasonable, having no substantial relation to the public health, safety, or welfare, or ... plainly contrary to the zoning laws.' "

Homewood Citizens Association, 548 So.2d at 143 (quoting 82 Am.Jur.2d Zoning and Planning § 338 (1976)). The Court further stated in Homewood Citizens Association that "[t]he burden is upon the party seeking relief from an ordinance to show that the ordinance was not a fairly debatable issue before the municipal governing body." 548 So.2d at 144.

The "fairly debatable" rule concerns the application of a zoning classification to a specific parcel of property. Byrd Companies v. Jefferson County, 445 So.2d 239, 247 (Ala.1983). " '[I]f the application of a zoning classification to a specific parcel of property is reasonably subject to disagreement, that is, if its application is fairly debatable, then the application of the ordinance by the zoning authority should not be disturbed by the courts.' " Id., quoting Davis v. Sails, 318 So.2d 214 (Fla.Dist.Ct.App.1975). Thus, if the zoning ordinance is "subject to controversy or contention" or "open to question or dispute," it is "fairly debatable" and should not be disturbed by the courts. Aldridge v. Grund, 293 Ala. 333, 342, 302 So.2d 847, 854 (1974); Cudd v. City of Homewood, 284 Ala. 268, 271, 224 So.2d 625, 628 (1969).

The City Council contends that its action in rezoning the property was within its sound legislative discretion as the governing body of the city and that the adoption of the zoning ordinance was a "fairly debatable" question upon which reasonable differences might exist in view of all of the circumstances. The City Council argues that a court should not substitute its judgment for that of a legislative body acting in its capacity as authorized by state law. City of Birmingham v. Norris, 374 So.2d 854 (Ala.1979).

The plaintiffs argue that in reviewing the holding of the trial court this court should apply the ore tenus rule. Where evidence is presented to the trial court ore tenus, a presumption of correctness exists as to the court's conclusions on issues of fact; its determination will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Gaston v. Ames, 514 So.2d 877, 878 (Ala.1987); Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So.2d 1177 (Ala.1981). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment. Gaston, supra; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978). In addition, the ore tenus presumption of correctness has no application to a trial court's conclusions on questions of law. Beavers v. County of Walker, 645 So.2d 1365 (Ala.1994); Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So.2d 415 (Ala.1994).

Because the adoption of an ordinance is a legislative function, the courts must apply a highly deferential standard in zoning cases. City of Mobile v. Karagan, 476 So.2d 60, 63 (Ala.1985). This Court has said:

" '[I]f the adoption of the ordinance raises questions upon which reasonable differences may exist in view of all the circumstances, and the wisdom of the ordinance is fairly debatable, then the action of a municipal governing body in adopting the ordinance will not be deemed arbitrary, a court being unwilling under such circumstances to substitute its judgment for that of the municipal governing body acting in a legislative capacity. Leary v. Adams, 226 Ala. 472, So. 391 [ (1933) ]; Episcopal Foundation of Jefferson County v. Williams, [281 Ala. 363, 202 So.2d 726 (1967) ].' "

City of Birmingham v. Norris, supra, 374 So.2d at 856 (quoting Waters v. City of Birmingham, 282 Ala. 104, 209 So.2d 388 (1968)).

The tract in question is bounded on the west by Cahaba River Road, and on the south by an Alabama Power Company right-of-way and then by BellSouth's Operations Center. It is bounded on the north by a residential area, and on the east by the Summit development, a 153-acre mixed-use development that will include a full-service hotel and a shopping center. Approximately 300 feet of the tract fronts U.S. 280. When this site was annexed into the City of Birmingham in 1985, it was zoned "R-1" ("Residential/Single-family"). In 1987, the City Council rezoned the property from "R-1" to "O-I" ("Office-Institutional"); however, an office development on such a small tract did not prove to be commercially feasible. Still undeveloped, the site was rezoned in 1991, in conjunction with an interim land use plan for the Cahaba-Lake Purdy area to "C O-I" or "Contingency Office-Institutional." The City Council voted to rezone the property from "C O-I" to "B-2" ("General Business District") by the adoption of City of Birmingham Ordinance No. 1538-G.

The evidence presented during six days of testimony concerned the extensive commercial development on U.S. 280, as well as the plans for this particular tract. There was evidence that U.S. 280 has a daily traffic flow of approximately 78,000 vehicles and that at times more than...