Board of Zoning Adjustment of City of Mobile v. Williams

• Decision Date: 02 July 1993
• Citation: Board of Zoning Adjustment of City of Mobile v. Williams, 636 So.2d 413 (Ala. Civ. App. 1993)
• Parties: BOARD OF ZONING ADJUSTMENT OF the CITY OF MOBILE v. Don Wade WILLIAMS. AV92000340.
• Court: Alabama Court of Civil Appeals

Page 413

636 So.2d 413

BOARD OF ZONING ADJUSTMENT OF the CITY OF MOBILE v. Don Wade WILLIAMS.

AV92000340.

Court of Civil Appeals of Alabama.

July 2, 1993.

Rehearing Denied July 30, 1993.

John L. Lawler of Finkbohner & Lawler, Mobile, for appellant.

James E. Atchison and Winston R. Grow of Trimmier, Atchison & Hayley, Mobile, for appellee.

ROBERTSON, Presiding Judge.

In August 1992 the Board of Zoning Adjustment of the City of Mobile (Board of Adjustment) denied Don Wade Williams's application for a variance from a local zoning ordinance. Pursuant to § 11-52-81, Code 1975, Williams appealed to the circuit court for a trial de novo. On January 7, 1993, following an ore tenus proceeding, the trial court entered an order granting Williams's request for a variance, subject to certain conditions.

The Board of Adjustment appeals to this court, contending that it was error for the trial court to grant the variance.

Where, as in this case, the evidence was presented ore tenus, the findings of the trial court are presumed to be correct, and the dispositive issue on appeal is "whether the judgment so preponderates against the evidence as to be plainly and palpably erroneous." Pipes v. Adams, 381 So.2d 86, 87 (Ala.Civ.App.1980).

A board of adjustment, as well as the circuit court on appeal for trial de novo, is authorized to grant a variance from the terms of a zoning ordinance "as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done." § 11-52-80(d)(3), Code 1975 (emphasis added); see also, Board of Adjustment of Mobile v. Murphy, 591 So.2d 505 (Ala.Civ.App.1991).

Our supreme court has stated that no one factor determines the question of what is an unnecessary hardship. City of Mobile v. Sorrell, 271 Ala. 468, 124 So.2d 463 (1960). Instead, all relevant factors, when taken together, must demonstrate that the plight of the property is unique in that the property cannot be put reasonably to a conforming use due to the limitations imposed upon it by reason of its zoning classification. Id.

The property in question, located on Cedar Crescent Drive in Mobile, comprises a 70-acre mobile home park, zoned "R-3" for multi-family residential use. Pursuant to the zoning ordinance, mobile home parks are an allowable use of R-3 property. Williams, the property owner and manager of the mobile home park, sought a variance permitting mobile home sales on the property, a "B-3" community-business use.

The record shows that Williams used the property solely as a mobile home park from 1977 until sometime in 1991, when he began also to sell new mobile homes on the property. He sought a variance after being notified that such sales violated the zoning ordinance.

Williams contended at trial that he was unable to use the property solely as a mobile home park and that before he began the sale of mobile homes, the park was on the verge of bankruptcy. He testified that prior to beginning sales, he had been able to rent approximately only 120 of 450 spaces available for mobile homes on the property and that occupancy of the park had remained at that level for a period of nearly seven years.

Williams stated that, at any one time, he keeps and displays from four to eight new mobile homes for sale near the rental and management office in the park and that when people buy a new mobile home, they frequently move the mobile home into one of the vacant spaces in the park. According to Williams, approximately 240 spaces in the park are currently occupied. Williams testified that because of the layout of the sewer system and the water and electrical facilities on the property, it would not be economically feasible to put the property to another use. He indicated that the property had been completely designed for use as a mobile home park and not some other kind of residential use.

Williams also testified that all of the mobile home sales took place in the interior section of the park, close to the rental and management office, and that the general public could not see the sales...