Beachcroft Properties v. City of Alabaster

Decision Date21 July 2006
Docket Number1041359.
Citation949 So.2d 899
PartiesBEACHCROFT PROPERTIES, LLP, and Sherman Holland, Jr. v. CITY OF ALABASTER, a municipal corporation, and BW & MMC, LLC.
CourtAlabama Supreme Court
949 So.2d 899
BEACHCROFT PROPERTIES, LLP, and Sherman Holland, Jr.
v.
CITY OF ALABASTER, a municipal corporation, and BW & MMC, LLC.
1041359.
Supreme Court of Alabama.
July 21, 2006.

[949 So.2d 900]

David B. Anderson and Deanna L. Weidner of Waller, Lansden, Dortch & Davis, LLP, Birmingham, for appellants.

J. Frank Head and William R. Justice of Wallace, Ellis, Fowler & Head, Columbiana, for City of Alabaster.

Steven F. Casey and M. Todd Lowther of Balch & Bingham, LLP, Birmingham, for BW & MMC, LLC.

WOODALL, Justice.


Beachcroft Properties, LLP, and Sherman Holland, Jr. (hereinafter referred to collectively as "Beachcroft"), appeal from a summary judgment for BW & MMC, LLC ("BW"), and the City of Alabaster ("the City") in an action filed by Beachcroft seeking access to a sanitary sewer system. We reverse and remand with directions.

This is the second time this dispute has come before us. The underlying facts are fully set forth in Beachcroft Properties, LLP v. City of Alabaster, 901 So.2d 703 (Ala.2004), and will not be repeated. In Beachcroft, we reversed a summary judgment for BW and the City and remanded the case for the trial court to consider whether the City had the authority to reject BW's purported reservation of ownership and control of the sanitary sewerage substation on lot 599, as noted on the Lake Forest Fifth Sector subdivision plat ("Lake Forest"), and the sewer lines beneath the streets of Lake Forest, while, at the same time, accepting BW's dedication of Lake Forest.1

On remand, Beachcroft and BW again filed cross-motions for a summary judgment.2 Submitted with BW's motion was the affidavit of its "agent," Joseph McKay, which chronicled the development of Lake Forest. The affidavit stated, in pertinent part:

"6. I am familiar with the location of the proposed subdivision known as Forest

949 So.2d 901

Highlands,[3] and I am aware that [Beachcroft] in this matter could gain access for Forest Highlands' sewer to the City of Alabaster's (the `City') sewer system by extending a sewer line along Burnt Pine Drive, a public road which accesses Forest Highlands, and then extending the line along Shelby County Highway 17 south to the intersection of Shelby County Highway 26 (Kent Dairy Road). The line would then be extended along Highway 26 to the City's existing sanitary sewer pump station. This access would utilize public right-of-way from [Beachcroft's] property all of the way to the City's pump station. Also, this routing of sanitary sewer lines would cover a similar distance and reach the same City pump station as the sewer lines serving [Lake Forest].

"7. In the course of developing the various stages of the Lake Forest Development, [BW] . . . has built two sanitary sewer pump stations in the Lake Forest Development. The first station was built in conjunction with the Lake Forest Second Sector (the `Second Sector') and was located on Lot 233 of the Second Sector.

"8. [BW] was required by the City to maintain the subdivision pump station and the associated sanitary sewer lines for the Second Sector for approximately one year from the date of recordation of the final plat and pay any costs associated with the Second Sector's sewer system. In fact, after approximately one year from recording had passed, the City transferred the power bill into its name. Subsequent to that, [BW] deeded Lot 233, which contained the sanitary sewer pump station to the City.

"9. Based upon my dealings with the City, it is my understanding that it is the City's general practice to require subdivision developers, for a period typically around a year, to retain their subdivisions' sanitary sewer systems maintaining full responsibility for the upkeep and paying all costs associated with the systems, in a similar manner as occurred in the Second Sector. This generally continues until a developer puts a final one-inch wearing surface of asphalt on the roads and conveys or otherwise turns over the pump station to the City.

"10. [BW's] second pump station for the Lake Forest Development was built in Lake Forest Fifth Sector (the `Fifth Sector') and located on Lot 599. This station was designed to collect the sewer [sic] from a majority of the Fifth Sector and pump it into the pump station located on Lot 233. The pump station and sewer lines for the Fifth Sector were designed and built with a capacity to adequately service the Fifth Sector. For this pump station and the sanitary sewer lines connected to it, [BW] noted of the Fifth Sector's Final Plat that it was withholding those facilities from dedication . . . . [BW] continues to own and maintain Lot 599, and it also continues to pay the power bill for this pump station."

(Emphasis added.) This account was essentially reproduced in the "summary of undisputed facts" portion of BW's motion for a summary judgment and in BW's brief on appeal.

In its renewed motion for a summary judgment, Beachcroft argued, in pertinent part:

"A developer . . . cannot . . . determine what members of the public shall have

949 So.2d 902

access to public improvements to the exclusion of a municipality.

"BW has frustrated the City's harmonious development plan and has caused damage to [Beachcroft]. BW's attempted restriction of the use of a public sewer . . . is . . . a legal nullity because it violates public policy. . . ."

(Emphasis added.) Beachcroft also argued that the City, in "acceding to BW's threats to exercise legal remedies against it should it allow [Beachcroft] access to the public sewer system," had "acted arbitrarily and capriciously." Beachcroft sought an order "allowing [it] to connect to the public sewers" under Lake Forest.

The trial court granted BW's motion and denied Beachcroft's motion. In so doing, the trial court disposed of all claims against BW and the City.

Beachcroft appealed a second time, and, for the first time in this dispute, the City filed a brief. The City agrees with Beachcroft, except as to Beachcroft's contention that it acted arbitrarily or capriciously. They both contend that the sewer system at issue is a public system. In particular, Beachcroft states: "[T]he evidence is undisputed that the streets and sewers are admittedly public and are connected to the City's system. They are being used by the public and the City is charging fees for such public use." Beachcroft's brief, at 22-23. Beachcroft and the City both take the position that the restrictions in the "`final' plats [BW] submitted on June 26, 2002, and December 30, 2002," Beachcroft Props., 901 So.2d at 710, which purport to prohibit landowners in Forest Highlands, an adjoining subdivision, from connecting to the sewer lines beneath the streets of Lake Forest, are void as an invalid interference with the City's control over its own sewer system.

BW, on the other hand, disputes the allegations that the Lake Forest sewer system is a public system. It contends that BW owns the sewer lines and the pumping station on lot 599 and will do so until it deeds the system to the City. BW states that "case law supports the placement of `reasonable' conditions in public dedications," BW's brief, at 17, and argues that its purported restrictions are "reasonable."

The parties cite no Alabama case on point. Nevertheless, a few relevant rules are widely recognized. For example, "[i]t is well established that although one dedicating land for public use may impose reasonable conditions, restrictions and limitations thereon, he may not impose reservations repugnant to the grant or which contravene public policy." Callahan v. Ganneston Park Dev. Corp., 245 A.2d 274, 278 (Me.1968) (emphasis added). See also City of Birmingham v. Graham, 202 Ala. 202, 204, 79 So. 574, 576 (1918) ("`A condition or limitation which would render the dedication ineffectual cannot be annexed . . . .'"); City of Sierra Vista v. Cochise Enters., Inc., 144 Ariz. 375, 379, 697 P.2d 1125, 1129 (Ct.App.1984) ("The general rule is that a dedicator may impose such restrictions and reservations as he may see fit when dedicating his property to the use of the public subject to the limitation that the restriction or reservation be neither repugnant to the dedication nor contrary to public policy."); Haven Homes, Inc. v. Raritan Township, 19 N.J. 239, 246-47, 116 A.2d 25, 29 (1955) ("And it goes without saying that a reservation basically repugnant to the grant itself or to public policy cannot be sustained."); and 11A Eugene McQuillin, Law of Municipal Corporations § 33.10.20 at 342 (3d ed. rev.vol. 2000) ("The dedicator cannot attach a condition or reservation that will destroy the chief characteristic of the purpose of the dedication or take the property from the

949 So.2d 903

control of, or impose burdens on, the duly authorized public officers.").

For example, there can be no "`valid dedication to a part only of the public, since this would be repugnant to the purpose of the dedication.'" Greil v. Stollenwerck, 201 Ala. 303, 306, 78 So. 79, 82 (1918) (quoting 1 Elliott, Roads & Streets § 163); see also Hill v. Towson Realty, Inc., 221 Md. 389, 396, 157 A.2d 796, 799 (1960); Atlantic Beach Prop. Owners' Ass'n v. Town of Hempstead, 3 N.Y.2d 434, 144 N.E.2d 409, 165 N.Y.S.2d 737 (1957); and McQuillin, supra, § 33.10.20, at 344.

Indeed, "[t]he donee cannot . . . assent to conditions which will deprive the municipality of its power to regulate and control the public streets." North Spokane Irrigation Dist. No. 8 v. County of Spokane, 86 Wash.2d 599, 602, 547 P.2d 859, 862 (1976) (emphasis added); see also State ex rel. Attorney General v. Louisville & N.R.R., 158 Ala. 208, 48 So. 391 (1908) (City of Montgomery could not, by contract, authorize the permanent obstruction of its streets by a railway company); and City of Camdenton v. Sho-Me Power Corp., 361 Mo. 790, 797, 237 S.W.2d 94, 98 (1951) ("The general rule is that a dedicator cannot attach conditions . . . which exclude public control of the property. . . .").

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