Baggett v. City of Montgomery, 3 Div. 37

• Decision Date: 12 December 1963
• Docket Number: 3 Div. 37
• Citation: 276 Ala. 166,160 So.2d 6
• Parties: Jimmy K. BAGGETT et al. v. CITY OF MONTGOMERY.
• Court: Alabama Supreme Court

Page 6

160 So.2d 6

276 Ala. 166

Jimmy K. BAGGETT et al. v. CITY OF MONTGOMERY.

3 Div. 37.

Supreme Court of Alabama.

Dec. 12, 1963.

Rehearing Denied Feb. 6, 1964.

Robt. B. Stewart, Jones, Murray & Stewart, Montgomery, for appellant.

Walter J. Knabe, Montgomery, for appellee.

PER CURIAM.

This is an appeal by petitioners from an adverse decree on a petition, filed in the Circuit Court, Equity Division, Montgomery County, for a declaration as to the validity of a zoning ordinance passed by appellee with respect to an area of land surrounding an airport owned by appellee and available for commercial and privately owned airplanes.

The ordinance in question was passed or adopted by the City Commission of appellee pursuant to the Airport Zoning Act, General Acts 1953, page 985, approved September 17, 1953, reported in Title 4, §§ 63-76, Code of Alabama Recompiled 1958. The ordinance must conform to the terms and conditions of this enabling act. Nonconforming provisions would be invalid.

It appears from the pleadings and the evidence that the ordinance here under attack as being invalid was adopted and became effective on July 5, 1961; that it was amendatory of a prior ordinance that includes some, but not all, of the land area embraced in the subject ordinance. Both ordinances were amendatory of a comprehensive zoning ordinance pertaining to Montgomery that had no connection with the Airport Zoning Act, supra.

The ordinance of 1961 embraces additional area and adopts as a part thereof a map that contains correct ground and aerial contours. The ordinance embraces all land within a radius of two miles of the airport. It confines the use of the land, with two slight exceptions, to Agricultural 'A' and 'B' purposes. The 'A' and 'B' districts include agricultural uses, horticulture, one-family residences, and flying fields. Lots for residential purposes are restricted to certain sizes. No apartments or duplex houses are permitted. Churches, libraries, and parks are permissible. Likewise, schools and hospitals are allowable.

The ordinance of 1961 contains provisions as follows:

'(b) Within an Agricultural 'A' or 'B' District, no structure or tree shall exceed two and one-half stories or thirty five (35) feet in height, except as hereinafter modified.

'(c) Within a Heavy Industrial District, no structure or tree shall exceed three stories or forty-five (45) feet in height, except as hereinafter modified.'

Appellants succinctly contend in their brief as follows:

They (complainants) contend the ordinance is unconstitutional for the following reasons:

'1. Limiting the use of their land to agricultural, residential and related uses and prohibiting commercial and industrial uses are unreasonable restrictions and are not necessary to prevent an airport hazard as defined in the Airport Zoning Act.

'2. Prohibiting every use above 35 feet amounts to an unconstitutional taking of Complainants' property.

'3. The fifteen (15) day statutory notice required by Title 37, Section 733, was not given before the ordinance was adopted.'

It is quite possible that literal application of the ordinance to some of the area embraced in the ordinance would be inequitable, unfair, harsh and unreasonable to the extent that its application to such area would be an abortive exercise of the police power upon which it depends for enforcement. Leary v. Adams, 226 Ala. 472, 147 So. 391. Also, such provisions in their application would not be in harmony with the purpose and spirit of the Airport Zoning Act, supra, by authority of which the ordinance was passed. Nor would the fact that the comprehensive zoning ordinance, passed by appellee, has identical limitations excuse or justify the unreasonableness or harshness of the zoning ordinance of 1961 in its relation to the airport area.

It also appears from the evidence, as we view it, that the restrictions in the 1961 ordinance might not be harsh or unreasonable in their application to some of the area within the two-mile radius which the ordinance includes. We do not think it is incumbent upon this court, in this proceeding, to make a determination as to the divergent applications, nor was such duty imposed on the trial court.

The City Commission, in passing the ordinance, could not be expected nor required under the terms of the enabling act, supra, to spell out and detail the dimensions of various types of buildings that would constitute a hazard to flying, nor to say at what point of the zoned area various types of buildings could be erected. Nor could they, with practical judgment, designate in what particular area of the two miles the heights of the buildings and trees should vary.

In the light of the provisions of the Airport Zoning Act, it occurs to us that the city was empowered to adopt an ordinance containing as it did a blanket or uniform restriction as to height applicable to the entire area embraced within the ordinance, and also to limit as it did the types of structures that could be erected in such area. This they could do, provided the restrictions were in whole or in part reasonably related to all or part of the area embraced in the ordinance. Unless all of the restrictions had no reasonable or fair application to any part of the area, we would not be justified in striking down the ordinance as an arbitrary and unreasonable usurpation of the police power. We must keep in mind the protection against airport hazards that the legislature had in view as expressed in the Airport Zoning Act.

The purpose of the Airport Zoning Act may be found in Title 4, § 64, Code of Alabama Recompiled 1958, reading as follows:

' § 64. Airport hazards contrary to public interest.--It is hereby found that an airport hazard endangers the lives and property of users of the airport and of occupants of land in its vicinity, and also, if of the obstruction type, in effect reduces the size of the area available for the landing, taking-off and maneuvering of aircraft, thus tending to destroy or impair the utility of the...