Baldwin County v. Bay Minette

• Citation: 854 So.2d 42
• Parties: BALDWIN COUNTY v. BAY MINETTE et al.
• Decision Date: 24 January 2003
• Court: Supreme Court of Alabama

854 So.2d 42

BALDWIN COUNTY v. BAY MINETTE et al.

1011840.

Supreme Court of Alabama.

January 24, 2003.

Robert A. Wills of Wills & Simon, Bay Minette, for appellant.

Lawrence M. Wettermark of Galloway, Smith, Wettermark & Everest, L.L.P., Mobile, for appellees City of Fairhope, City of Orange Beach, City of Robertsdale, City of Gulf Shores, City of Spanish Fort, and Town of Silverhill.

WOODALL, Justice.

Baldwin County ("the County") appeals from a declaratory judgment in favor of the City of Fairhope and certain other municipalities in the County, and from the dismissal of its complaint against Bay Minette and other municipalities. We affirm in part and dismiss the appeal in part.

The County commenced this action on October 3, 2001, by filing a complaint against municipalities in the County, namely: (1) Bay Minette, (2) Spanish Fort, (3) Loxley, (4) Daphne, (5) Fairhope, (6) Silverhill, (7) Robertsdale, (8) Summerdale, (9) Foley, (10) Elberta, (11) Gulf Shores, and (12) Orange Beach (hereinafter referred to collectively as "the Cities"). The complaint, which was filed pursuant to the Declaratory Judgment Act, Ala.Code 1975, § 6-6-220 et seq., contained the following pertinent allegations:

"4. Pursuant to various general laws of the State of Alabama and certain local acts pertaining to [the County], [the County] has been empowered with certain regulatory authority for zoning, planning, enforcement of flood regulations, subdivision regulation, protection of historic and preservation districts, and enforcement of building codes, to-wit:

"(a) Local Act Number 91-719 as amended by Act Number 93-668 and Act Number 98-665 authorizing [the County] to implement zoning and planning in districts throughout Baldwin County;

"(b) Code of Alabama, Section 11-19-1, et seq. authorizing counties in Alabama to implement zoning, subdivision regulations and planning in flood prone areas;

"(c) The Baldwin County Flood Damage Prevention Ordinance enacted to implement FEMA [Federal Emergency Management Agency] requirements in flood prone areas required for [the County] to participate in the Federal National Flood Insurance Program;

"(d) Local Act Number 73-1094 authorizing [the County] to regulate subdivisions outside the corporate limits of municipalities;

"(e) Code of Alabama, Section 11-24-1, et seq. authorizing counties in Alabama to regulate subdivisions;

"(f) Local Act Number 80-497 amended by Act Number 89-960 authorizing [the County] to protect the historic and preservation districts through the enforcement of land use controls; and

"(g) Code of Alabama, Section 41-9-166 authorizing county commissions in Alabama to adopt and enforce the Model Building Code published by the Southern Building Code Congress International and the National Electrical Code published by the National Fire Protection Association.

"5. The principal procedure or mechanism by which [the County] can implement the authority granted to it hereinabove for zoning and planning, flood damage prevention, subdivision regulation, implementation of FEMA regulations, protection of historic and preservation districts, and implementation of building codes is through the issuance of building permits and through the inspection process associated therewith.

"....

"7. A justiciable controversy exists in that Gulf Shores and Robertsdale are issuing building permits within the one and one-half (1½) miles of their police jurisdiction; Foley has, within the past six (6) months begun to issue building permits within its three-mile police jurisdiction; and on October 1, 2001, Fairhope began to issue building permits within its three-mile police jurisdiction whereas it had previously not issued any building permits in its police jurisdiction. The remaining municipalities in [Baldwin County], namely, Bay Minette, Spanish Fort, Loxley, Daphne, Silverhill, Summerdale, Elberta, and Orange Beach do not issue building permits within their police jurisdiction. [The County] issues building permits and performs inspections commensurate therewith in the police jurisdictions of the Defendants.

"8. [The County] is unable to properly enforce the rules and regulations or to exercise the authority granted to it pursuant to those laws set forth in Paragraph 4 hereinabove unless it can issue building permits and follow its inspection procedures commensurate therewith as hereinabove set forth.

"9. It is in the best interest of the citizens of Baldwin County that the rules and regulations regarding the issuance of building permits in the police jurisdictions of the Defendants be uniform and not duplicitous."

The County sought a judgment declaring that it has the exclusive right to issue building permits and to conduct its "inspection process commensurate therewith" within the police jurisdictions of the Cities; it also sought an order enjoining the Cities from issuing building permits within their police jurisdictions.

Five of the Cities—Gulf Shores, Fairhope, Foley, Robertsdale, and Bay Minette—answered the complaint. Ten of them challenged the sufficiency of the allegations of the complaint in subsequent motions. Specifically, seven municipalities— Spanish Fort, Daphne, Silverhill, Robertsdale, Summerdale, Elberta, and Orange Beach—moved to dismiss the complaint for failure to state a claim. Fairhope, Foley, and Gulf Shores moved for a judgment on the pleadings.

On May 28, 2002, the trial court granted the Cities' motions. Additionally, it dismissed ex mero motu the complaints against Bay Minette and Loxley. The court concluded that "[t]here is no statutory support for divesting municipalities of what has been a clearly recognized authority to exercise their police powers within their police jurisdictions." It further concluded that "the most recent legislative enactment on the matter ... divests counties, not municipalities, of building permitting power within the police jurisdiction of any municipality which chooses to exercise its jurisdiction." (Emphasis added.) The County challenges those conclusions on appeal.

The threshold issue we must address is whether there exists a justiciable controversy between the County and some, or any, of the Cities. This inquiry is compelled by, among other things, the allegation in the complaint that only four of the Cities are, in fact, attempting to exercise permitting authority within their police jurisdictions.

To be valid, a declaratory judgment must settle a "bona fide justiciable controversy." Gulf South Conference v. Boyd, 369 So.2d 553, 557 (Ala.1979).

"To be justiciable, the controversy must be one that is appropriate for judicial determination. It must be a controversy which is definite and concrete, touching the legal relations of the parties in adverse legal interest, and it must be a real and substantial controversy admitting of specific relief through a [judgment]. `A controversy is justiciable when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded....' Anderson, Actions for Declaratory Judgments, Volume 1, § 14."

Copeland v. Jefferson County, 284 Ala. 558, 561, 226 So.2d 385, 387 (1969) (emphasis added). "Thus, `[d]eclaratory judgment proceedings will not lie for an "anticipated controversy."'" Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002) (quoting City of Dothan v. Eighty-Four West, Inc., 738 So.2d 903, 908 (Ala.Civ.App.1999))(emphasis added). Moreover, "justiciability is jurisdictional," Ex parte State ex rel. James, 711 So.2d 952, 960 n. 2 (Ala.1998); hence, if necessary, "this Court is duty bound to notice ex mero motu the absence of subject-matter jurisdiction." Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 945 n. 2 (Ala.1994).

It is evident on the face of the complaint that no such controversy exists between the County and eight of the Cities, namely, Spanish Fort, Daphne, Silverhill, Summerdale, Elberta, Orange Beach, Bay Minette,...