Arant v. Board of Adjustment of City of Montgomery

• Decision Date: 03 November 1960
• Docket Number: 3 Div. 797
• Parties: , 89 A.L.R.2d 652 W. M. ARANT et ux. v. BOARD OF ADJUSTMENT of the CITY OF MONTGOMERY.
• Court: Alabama Supreme Court

Page 100

126 So.2d 100

271 Ala. 600, 89 A.L.R.2d 652

W. M. ARANT et ux. v. BOARD OF ADJUSTMENT of the CITY OF MONTGOMERY.

3 Div. 797.

Supreme Court of Alabama.

Nov. 3, 1960.

Rehearing Denied Jan. 26, 1961.

Hill, Robison & Belser, Montgomery, for appellants.

Knabe & Nachman and Ball & Ball, Montgomery, for appellee.

COLEMAN, Justice.

This is an appeal from a judgment of the circuit court which affirmed an order of the Board of Adjustment granting a variance for the use of a portion of a lot in the city of Montgomery.

William J. Gordy, Jr. applied to the Board of Adjustment for authority to use the west part of the lot in connection with a filling station which applicant proposed to construct on the east portion of the lot. The lot lies at the southeast corner of the intersection of Upper Wetumpka Road and Capitol Parkway. The boundary lines of the lot form a trapezoid. The west side of the trapezoid fronts on Capitol Parkway, is 46 feet long, and is the short parallel side of the figure. The south side is perpendicular, or nearly so, to Capitol Parkway and runs easterly 120 feet. The east side of the lot runs north to Upper Wetumpka Road, is 100 feet long, and is the long parallel side of the trapezoid. The north side of the lot fronts on Upper Wetumpka Road and is 130 feet long. The dimensions here used are not exact but are sufficiently accurate for the understanding of this case. The following sketch may be helpful:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Gordy has contracted to purchase lot ABCDEF which is now owned by the Kysers. As originally platted, lots 8 and 9 were intended to front on Upper Wetumpka Road. Lot 8 is the figure BCDHIJE and Lot 9 is ABEJKGF. As sold off and actually used, lots 8 and 9 front on Capitol Parkway and now constitute three lots, to wit: ABCDEF owned by the Kysers, DEFGH owned by the appellants, and GHIJK owned by Mrs. Park.

When the zoning ordinance was enacted by the city in 1948, lot 8 of the subdivision was included in the area zoned local business and lot 9 was zoned residential. The result is that the Kyser lot lies in two zones, although there is only one building, a single family residence, on the lot. The area BCDE is zoned local business but the area ABEF is zoned residential. It is this latter area, ABEF, for which the variance is desired.

Gordy proposes to build a gasoline service station on area BCDE. That appears to be permissible because BCDE is already zoned local business. He desires, however, to place concrete on the area ABEF so that vehicles can use ABEF in connection with the service station. The appellants oppose granting the variance.

The area across Upper Wetumpka Road is zoned light industrial and there is a shopping center located there. The area BCXYIJE is zoned local business and there appears to be local business in the area CXYIHD.

On appeal to the circuit court, the appellants demanded a jury trial. The court granted appellee's motion to strike the jury demand and heard testimony ore tenus without a jury. The judgment states that the court has viewed the premises and sets out the following findings:

'* * * From the evidence the court finds that the eastern part of the lot involved was zoned as a local business district which permits the construction and operation of a gasoline service station. The west sixty-five feet of the said lot in question was zoned as 'A-1 residential district' which requires for the construction of a residence seventy-five hundred square feet and a front yard of approximately forty feet and a rear yard of approximately forty-five feet; that the portion of the lot zoned as 'A-1 residential' could not be used for residential purposes without the granting of a variance by the Planning Commission of the City of Montgomery or the Board of Adjustment and that due to the unusual circumstances in connection with the zoning of this property W. J. Gordy, Jr. would suffer an unnecessary hardship if a literal compliance with the zoning ordinance was followed and said W. J. Gordy, Jr. be denied the variance granted by the Board of Adjustment; that the lot is located in a portion of Montgomery largely devoted to industrial and business development and that the granting of the variance would not be contrary to the public interest or the interest of the people in the district in which said lot is situated.

'The court further finds from the evidence that under the conditions and circumstances existing in connection with the property involved in this litigation that the granting of the variance will result in substantial justice in this case and will not be contrary to the public interest.'

Appellants argue that because Gordy did not own the property when he applied for the variance, and does not own the property now, he is not a 'person aggrieved' within the meaning of that term as it is used in § 781, Title 37, Code 1940. Gordy's petition to the Board of Adjustment alleges that he 'has entered into a purchase agreement for the' property. The agreement was admitted in evidence and appears in the transcript. While the sellers are not parties in this case and rights under the contract are not before us, we deem it proper, in deciding the question raised by appellants, to observe that the contract is not a mere option but appears to be an agreement on the part of Gordy to purchase on condition that the variance now sought be granted.

In Slater v. Toohill, 276 App.Div. 850, 93 N.Y.S.2d 153, the court held that the purchaser under an agreement conditioned upon the procurement of the variance may be deemed to be the agent of the owner or an aggrieved person in applying for a variance. In Appeal of Elkins Park Imp. Ass'n, 361 Pa. 322, 64 A.2d 783, 785, the court said, 'We regard an equitable owner * * * as possessing a status to petition for a variance * * *.' Headnote 4 in that case indicates that the equitable owner was a purchaser under a contract conditioned upon the granting of the variance. In Silverco, Inc. v. Zoning Board of Adjustment, 379 Pa. 497, 109 A.2d 147, 148, the petitioner had contracted to purchase provided the variance was granted and the court said, '* * * Petitioner was consequently a conditional purchaser whose position and rights were equivalent to those of an owner who desired a variance for the same purposes. * * *' In Hickox v. Griffin, 274 App.Div. 792, 79 N.Y.S.2d 193, the court held that a conditional purchaser was entitled to apply for a variance as the agent and with the consent of the holder of the legal title. See also Smith v. Selligman, 270 Ky. 69, 109 S.W.2d 14.

We are of opinion that the above cited cases follow the better rule. To hold that the owner at the time a zoning ordinance is adopted may apply for a variance but cannot transfer or assign that right or appoint an agent to make application to exercise it, tends to make the right depend on the identity of the owner instead of the situation of the property and the facts and circumstances of the case.

There is authority to the contrary. Blumberg v. Feriola, 8 A.D.2d 850, 190 N.Y.S.2d 543; Minney v. City of Azusa, 164 Cal.App.2d 12, 330 P.2d 255; Elwyn v. City of Miami, Fla.App., 113 So.2d 849; Gleason v. Keswick Improvement Ass'n, 197 Md. 46, 78 A.2d 164.

In Arrow Transportation Co. v. Planning & Zoning Commission, Ky., 299 S.W.2d 95, 96, cited by appellants, the court held that the variance or exception allowed by the board in that case '* * * would in effect change the property from a B-3 zone to an M-2 zone. * * *' and that such action was beyond the board's authority. Moreover, the interest of the applicant there was under a lease with an option to purchase. We think the variance there was different from the variance here in that the variance here does not in effect rezone the property, and also that the applicant here under the conditional contract to purchase stands in a position different from that of a mere holder of an option.

We are of opinion that the petitioner, Gordy, as equitable owner of the property under a contract to purchase conditioned on the grant of the variance, is entitled to apply for it. The fact that he is such a purchaser is a matter to be considered, but does not bar his right to a variance.

Niether do we think that the fact that the Kysers bought the property in 1952 after the zoning ordinance went into effect bars their right to a variance. Their situation is at least as favorable to them as that of a contract purchaser, and, as assignees of whatever right the owner at the time the zoning ordinance was adopted then possessed, the Kysers are not barred, although the fact of purchase subsequent to passage of the ordinance is a material element in determining the existence of unnecessary hardship. Lumund v. Board of Adjustment, 4 N.J. 577, 73 A.2d 545; O'Neill v. Philadelphia Zoning Board of Adjustment, 384 Pa. 379, 120 A.2d 901.

Appellants insist that the judgment is in error because Gordy failed to prove peculiar and exceptional circumstances causing unnecessary hardship or that the spirit of the zoning ordinance will be observed in granting the variance.

On these issues we note that the area on north side of Upper Wetumpka Road is zoned Light Industrial, is occupied by a shopping center and a gasoline service station opposite or nearly opposite ABCDEF; that on the west side of Capitol Parkway opposite, or nearly opposite, the lot of appellants there is a nonconforming business use; and that the variance does not authorize construction of any building on ABEF but merely authorizes paving it and placing a light on it.

The witness Sellers, who had been in the real estate business ten years, testified that he was interested in the proposed sale of the Kyser property and was familiar with it, that in his opinion there was no practical way to develop the business portion of the Kyser lot without a variance except by constructing on it '* * * a cheap or small service station...