Arnett v. City of Mobile

• Decision Date: 24 February 1984
• Citation: 449 So.2d 1222
• Parties: Freeman ARNETT and Mary Arnett v. CITY OF MOBILE, A Municipal Corporation. 82-834.
• Court: Alabama Supreme Court

Page 1222

449 So.2d 1222

Freeman ARNETT and Mary Arnett v. CITY OF MOBILE, A Municipal Corporation.

82-834.

Supreme Court of Alabama.

Feb. 24, 1984.

Rehearing Denied April 20, 1984.

John W. Parker of McFadden, Riley & Parker, Mobile, for appellants.

William R. Lauten, Mobile, for appellee.

SHORES, Justice.

Plaintiffs Freeman and Mary Arnett appeal from a summary judgment in favor of the City of Mobile. We reverse and remand.

The Arnetts are real estate developers. In a period extending from 1967 to 1977, they developed an area known as Theodore Highlands outside the corporate limits of the City of Mobile but within the City's subdivision jurisdiction. This development was conducted in stages or additions, with each addition requiring a separate plat approved by the City of Mobile Planning Commission. As a prerequisite to approval of plats for the Fifth, Sixth, Seventh, and Eighth Additions, the Planning Commission required a reservation of a 100-foot right of way for a future thoroughfare. The plats of the various additions were drawn including the reservation with the notation "future thoroughfare 100' R/W (reserved for purchase)." On the plat of the Eighth Addition, however, the words "reserved for purchase" do not appear. This reservation, consisting of 6.71 acres, continues of record, although the Arnetts have received no compensation for the land and have no formal dedication as such to any public authority. The thoroughfare has not been paved nor opened for public use. Direct ingress to and egress from the future thoroughfare from Theodore Highlands will be permitted only from two streets within the subdivision.

The Arnetts filed suit in circuit court, requesting damages from the City of Mobile for the taking of their property without compensation, and further requesting a declaratory judgment to the effect that the taking of their property without compensation violated the provisions of §§ 11-52-30, et seq., Ala.Code 1975, and the provisions of § 235 of the Alabama Constitution. Subsequently, the City of Mobile filed a motion for summary judgment, which was granted. The Arnetts appeal.

The City of Mobile is granted subdivision jurisdiction over the area containing Theodore Highlands by § 11-52-30, Ala.Code 1975. The power to regulate the development of subdivisions is delegated by § 11-52-31, which provides:

"The planning commission shall adopt regulations governing the subdivision of land within its jurisdiction. Such regulations may provide for the proper arrangement of streets in relation to other existing or planned streets and to the master plan.... Such regulations may include provisions as to the extent to which streets and other ways shall be graded and improved ... as a condition precedent to the approval of the plat...."

This Court recognizes the authority of the planning commissions to exercise control over the subdivision of lands. We have, however, on repeated occasions, noted that this authority is derived from the legislature, and that planning commissions are to adopt regulations consistent with those statutes. Cottage Hill Land Corp. v. City of Mobile 443 So.2d 1201 (Ala.1983); City of Mobile v. Waldon, 429 So.2d 945 (Ala.1983); Boulder Corp. v. Vann, 345 So.2d 272 (Ala.1977).

The City contends that its subdivision regulations, specifically §§ V.B. (2) and (13) and VII.A. (2), in conjunction with the authority granted in § 11-52-31, Ala.Code 1975, allow it to require the reservation of land area that is in the path of a planned major street as a condition for approval of a subdivision plat. We do not disagree with this contention; however, the facts of this case require consideration of more than just the right of the City to reserve land. In Cottage Hill, supra, this Court held that

"anytime the planning commission requires a developer to reserve property in a proposed subdivision for future streets, the city should be aware that 'there are limitations on the powers of such commissions' when they are acting pursuant to powers granted them under § 11-52-31, especially when the need for the future street will be substantially generated by public traffic demands rather than by the proposed development. On those occasions, the guidelines and procedures set forth in §§ 11-52-50 through 11-52-54 should be followed; otherwise, the reservation could amount to an unconstitutional taking of property without due process of law. City of Mobile v. Waldon, supra; see Board of Supervisors of James County v. Rowe, 216 Va. 128, 216 S.E.2d 199 (1975)." (Emphasis in original.)

443 So.2d at 1205.

Additionally, in City of Mobile v. Waldon, supra, this Court cautioned that

"we are not to be understood as allowing a planning commission to require dedication of property anytime it is of the opinion that such dedication is needed; there are limitations on the powers of such commissions. It has those powers alluded to, provided however, that the exercise of same does not run afoul of the enabling act and the constitutional requirements of due process. Lynnwood Property Owners Ass'n v. Lands Described in Complaint [359 So.2d 357 (Ala.1978) ]."

429 So.2d at 948.

Both sides agree that the City of Mobile Planning Commission required the Arnetts to reserve the 100-foot strip along the Theodore Highlands additions in order to secure approval of their plats of those various additions, and that the reserved area lies outside, although adjacent to, the platted subdivision.

The City argues two things: First, that the thoroughfare was dedicated to the City; and, second, that the procedures set out in § 11-52-50, et seq., were not used to secure the area for the future thoroughfare. The record reveals that the thoroughfare was made a part of the subdivision plats following the demand by the City that the reservation be placed on the plats.

The 100-foot right of way was never dedicated to the City of Mobile. This Court, in Sam Raine Construction Co., Inc. v. Lakeview Estates, Inc., 407 So.2d 542 (Ala.1981), stated the law on dedication of a public right of way as follows:

" 'A public way is established in either one of three ways: (1) by a regular proceeding for that purpose, or (2) by a dedication as such by the owner of the land the way crosses, with acceptance by the proper authorities, or (3) the way is generally used by the public for twenty years.' Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1972)."

407 So.2d at 544.

There has not been any proceeding for the purpose of dedicating the area reserved for the future thoroughfare. The Arnetts have not made a dedication to the City of Mobile, and there has not been a dedication by prescription. Most importantly, the lots in the subdivision additions were not sold pursuant to the plat of the future thoroughfare. In fact, the reserved 100-foot right of way lies outside the metes and bounds description of the subdivision.

The City's second argument is without merit. It is true that no surveys were made to show the exact location of the lines of the Mobile Major Street Plan. No plats were made showing the exact lands to be reserved. No estimates were made of the length of time of the reservation. The City of Mobile...