BEACHCROFT PROPERTIES v. City of Alabaster

• Decision Date: 19 November 2004
• Parties: BEACHCROFT PROPERTIES, LLP, and Sherman Holland, Jr. v. CITY OF ALABASTER, a municipal corporation; BW & MMC, LLC; and Joseph E. McKay.
• Court: Alabama Supreme Court

901 So.2d 703

BEACHCROFT PROPERTIES, LLP, and Sherman Holland, Jr. v. CITY OF ALABASTER, a municipal corporation; BW & MMC, LLC; and Joseph E. McKay.

1031267.

Supreme Court of Alabama.

November 19, 2004.

David B. Anderson and Donna McGee Glover of Walston, Wells, Anderson & Bains, LLP, Birmingham; and Corretti, Newsom & Hawkins, Birmingham, listed as "of counsel," for appellants.

Steven F. Casey and J. Vaughan Branch of Balch & Bingham, LLP, Birmingham, for appellees BW & MMC, LLC, and Joseph E. McCay.

WOODALL, Justice.

Beachcroft Properties, LLP, and Sherman Holland, Jr., appeal from a summary judgment in favor of the City of Alabaster ("the City"), BW & MMC, LLC ("BW"), and Joseph E. McKay, in an action filed by Beachcroft and Holland seeking access to a sanitary sewer system. We affirm in part, reverse in part, and remand.

The operative facts are undisputed. This dispute involves two contiguous, platted subdivisions in the City, namely, (1) Lake Forest Fifth Sector and Lake Forest Fifth Sector, First Addition (collectively "Lake Forest"), and (2) Forest Highlands. Lake Forest and Forest Highlands abut one another near the eastern end of Sweet Leaf Lane, which is platted in both subdivisions. Beachcroft and Holland are joint owners, or developers, of Forest Highlands. BW is the owner and developer of Lake Forest. McKay has acted at all relevant times as an agent of BW.

On August 28, 2001, McKay presented to the Planning and Zoning Board of the City ("the Board") a preliminary plat, laying out proposed lots and streets for development in an area to be known as Lake Forest. All lots in Lake Forest were to be served by a sanitary sewer system to be constructed by BW. The Board voted to approve the preliminary plat, and BW had a sewer system installed. In particular, a sewer line capable of serving both Lake Forest and Forest Highlands was installed along Sweet Leaf Lane.

At a meeting of the Board on April 23, 2002, a preliminary plat for the development of Forest Highlands was presented. During the discussion that followed, the City engineer pointed out that a significant issue to be resolved was the absence of a connection to an existing sanitary sewer system. The ensuing discussion centered on the possibility of connecting a sewer system to serve Forest Highlands to the sewer line in place under Sweet Leaf Lane at the proposed point Forest Highlands abuts Lake Forest. One of the Board members stated:

"[I]t has been our policy and understanding that the sewer system belongs to the Developer until such a time as it is up, running, and operating; then the City assumes control of it and takes it over. The Developer pays the electrical bill, pays for the pumping station and takes care of the maintenance on the pumping station. It is our understanding at this time that the sewer system belongs to the Developer of Lake Forest and we don't feel that we have the authority to allow another development to connect onto that sewer. That is the issue that has to be resolved."

(Emphasis added.)

McKay, who was in attendance, stated that BW did not plan for the Lake Forest subdivision to connect with the Forest Highlands subdivision, and that there were no plans to make the sewer system serving Lake Forest available to the residents of Forest Highlands. One of the Board members suggested that the developers of Forest Highlands could, instead of connecting to the Lake Forest sewer system, "pump down Highway 17 ... to the pump station on Highway 26, which the City owns." A spokesperson for the Forest Highlands developers responded that pumping to the station on Highway 26 was not a "realistic option," because, he stated, it would "cost a fortune to do and it [might] take two to three pump stations." McKay criticized the spokesperson's concerns over the feasibility of using the pump station on Highway 26, stating that pumping down to the Highway 26 pump station was "exactly what [BW] had to do." He "stated that [BW] had to install two pump stations [at] great expense in order to get sewer back to this point," and said that a connection to Lake Forest was not available to Forest Highlands. After further discussion, the Board voted to postpone approval of the preliminary plat for Forest Highlands.

At the June 26, 2002, meeting of the Board, McKay presented a proposed "final plat" for Lake Forest. Unlike the preliminary plat for Lake Forest, the final plat designated four of the eastern-most lots along Sweet Leaf Lane for "future development," effectively creating a "buffer zone" of undedicated real estate between Lake Forest and the proposed Forest Highlands subdivision. The plat presented at the June 26 meeting also added the following notation:

"LOT 599 AND THE PUMP STATION SHOWN THEREON AND ANY SANITARY SEWER LINES CONNECTED TO SUCH PUMP STATION WHICH ARE NOW OR HEREAFTER LOCATED IN, ON OR UNDER ANY OF THE EASEMENTS SHOWN ON THIS PLAT ARE SPECIFICALLY NOT DEDICATED TO THE PUBLIC OR ANY GOVERNMENT ENTITY BY THE FILING OR RECORDING OF THIS PLAT. SUCH A DEDICATION, IF ANY, SHALL BE ACCOMPLISHED BY THE RECORDING OF DEED TO BE FILED FOR RECORD IN THE PROBATE OFFICE OF SHELBY COUNTY, ALABAMA."

(Capitalization in original; emphasis added.)

A spokesperson for the developers of Forest Highlands objected to the reservation of the four lots as "possibly being a spite strip." During the ensuing discussion, a member of the Board remarked that McKay had "agreed to supply [the Board] with a Letter of Intent, stating that he [would] bring in the last 4 lots." Thereafter, the Board voted to approve the June 26 plat, "contingent upon the Final Plat not being signed until ... the last four (4) lots" were presented. In July 2002, the Board approved the June 26 plat, and it was recorded in the Shelby County Probate Office.

On August 21, 2002, counsel for BW addressed a letter to counsel for the City, stating, in pertinent part:

"With regard to any rights of adjoining landowners to connect to the sewer lines and pump station currently being installed in [Lake Forest], please be advised that such sewer lines and pump station are private facilities and specifically were not dedicated by the recording of the subdivision plat at Map Book 30, Page 25....

"....

"The sewer lines and pump stations are specifically noted on the plat or map as not donated or granted to the public. Accordingly, they remain private and are owned by the Developer [BW] until affirmatively dedicated by deed recorded in the Probate Office of Shelby County, Alabama.

"Should any party seek to connect to these privately-held sewer facilities, the Developer will aggressively enforce its private-property rights."

(Emphasis in original.)

On November 1, 2002, Beachcroft and Holland sued the City, BW, and McKay. In their complaint they sought, among other things, a judgment declaring "that Sweet Leaf Lane, as well as the other public streets within [Lake Forest], have been statutorily dedicated to the public and that the sanitary sewer within said streets are public sewers available to plaintiffs connecting thereon and proceeding with the development of their properties." Beachcroft and Holland also sought an order enjoining the defendants from preventing Beachcroft and Holland from connecting "onto the sanitary sewer within Sweet Leaf Lane and the other public streets within [Lake Forest]." Additionally, they sought damages "for the loss ... they ... sustained by virtue of [the] failure and refusal to allow and permit [them] to connect onto the sanitary sewer within Sweet Leaf Lane."

At a meeting of the Board on December 30, 2002, McKay presented a plat dedicating the four lots that had been omitted from the June 26 plat. However, the December 30 plat also included verbatim the notation from the June 26 plat, purporting to except from dedication the sanitary sewer lines constructed in Lake Forest. The minutes of the December 30 meeting contain the following relevant entries:

"[Board member] Tommy Ryals stated that they have a letter from the City Attorney stating that we can approve this plat if we so choose subject to the Shelby County Circuit Court and [its] rulings and he would like to put this in [the] form of a motion.

"After a brief discussion, a motion was made by Tommy Ryals and seconded by [Board member] Kenny Hill to approve the [platting of the] 4 lots [in Lake Forest] subject to the determination by the Shelby County Circuit Court as to the lawfulness of the reservation and restrictions regarding use of the sewer lines, as noted on the plat."

(Emphasis added.) The motion carried, and "Tommy Ryals stated that [the Board] would abide by whatever the court determine[d]." The December 30 plat was recorded in the Shelby County Probate Office. On January 28, 2003, the Board approved a preliminary plat for Forest Highlands, subject, also, to a judicial resolution of the City's authority over the sewer lines in Lake Forest.

On November 24, 2003, Beachcroft and Holland filed a motion for a partial summary judgment. On November 26, 2003, BW and McKay also moved for a summary judgment.¹ On April 2, 2004, the trial court entered a judgment in favor of all the defendants and denied the summary-judgment motion of Beachcroft and Holland. The judgment stated, in toto:

"The cause came on before the court on cross motions for summary judgment filed by Plaintiffs and Defendants. The issue concerns a sanitary sewer hook-up and whether there was a dedication thereof to the City.

"Plaintiffs filed a lawsuit against Defendants requesting from this court a preliminary and permanent injunction be issued against Defendants.

"Plaintiffs, Defendants [BW] and Joseph McKay (hereinafter referred to collectively as McKay Defendants) are all in the business of real estate development. The McKay defendants have completed certain portions of real estate for residential properties which adjoin Plaintiff properties. Plaintiffs seek this court to allow them by way of injunction and/or

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