Board of Zoning Adjustment of the City of Mobile v. Dauphin Upham Joint Venture

• Decision Date: 06 December 1996
• Citation: 688 So.2d 823
• Parties: BOARD OF ZONING ADJUSTMENT OF THE CITY OF MOBILE v. DAUPHIN UPHAM JOINT VENTURE, a partnership; Robert J. Crow; Everett Wilkinson; and Robert Cordasco. 2950507.
• Court: Alabama Court of Civil Appeals

Page 823

688 So.2d 823

BOARD OF ZONING ADJUSTMENT OF THE CITY OF MOBILE v. DAUPHIN UPHAM JOINT VENTURE, a partnership; Robert J. Crow; Everett Wilkinson; and Robert Cordasco.

2950507.

Court of Civil Appeals of Alabama.

Dec. 6, 1996.

Rehearing Denied Jan. 17, 1997.

John L. Lawler of Finkbohner & Lawler, L.L.C., Mobile, for Appellant.

J. Patrick Courtney III and S. Wesley Pipes of Lyons, Pipes & Cook, P.C., Mobile, for Appellees.

CRAWLEY, Judge.

The Board of Zoning Adjustment of the City of Mobile ("the Board") appeals from a circuit court judgment granting a use variance to Dauphin Upham Joint Venture ("the joint venture"). We reverse.

The members of the joint venture are Robert J. Crow, Everett Wilkinson, and Robert Cordasco, who are partners in the accounting firm of Crow, Wilkinson and Cordasco. In 1995, the joint venture applied to the Board for a use variance to operate a satellite office for its accounting firm in a house across the street from its main office. The house is a one-and-one-half story, white frame structure surrounded by a white picket fence, in an area zoned for residential use. The Board denied the application, and the joint venture appealed the Board's decision to the circuit court. The circuit court determined that "due to special conditions, the literal enforcement of the City of Mobile's Zoning Ordinance will result in unnecessary hardship." The court granted the variance, subject to the following conditions:

"1. There shall be no parking on site.

"2. Parking for the accountants' offices shall be provided at 2062 Dauphin Street at Plaintiffs' main offices, for which the variance sought is hereby granted.

"3. The residential character of the exterior of the house on the property shall remain and be maintained and have the appearance of a residence.

"4. There shall be no signage indicating the operation of the accountants' offices.

"5. If the structure is no longer used by Plaintiffs as an accounting office in conformity with the conditions imposed, the variance shall expire and the use of the property revert to residential.

"6. Landscaping shall be provided within ninety (90) days after final judgment with the landscaping plans presented by Plaintiffs at the trial of this cause."

Upham Street in Mobile begins at Dauphin Street, a major east-west thoroughfare, and runs north. The property in question is located on the west corner of the intersection of Upham and Dauphin Streets, facing Dauphin Street. The joint venture's accounting office is located across Upham Street on the east corner of the same intersection, also facing Dauphin Street. All the lots on Dauphin Street for five or six blocks west of Upham Street are zoned for residential use. All the lots on Dauphin Street for two blocks east of Upham Street are zoned for business use.

In 1994, the joint venture purchased a vacant lot immediately to the east of its accounting office with the expectation of using the lot for office expansion. The lot was already zoned for business use, so no application for a variance was necessary. The joint venture abandoned the idea of expansion on the lot, however, when it decided that the cost was prohibitive.

On June 21, 1995, the joint venture purchased the property in question, knowing that it was zoned for residential use and planning to apply for a variance. At the time of its purchase by the joint venture, the property had been on the market for about six months. Before that, the house on the premises had been continually occupied as a residence for 20 years or more. The joint venture renovated the house by painting and rewiring it and by installing an alarm system.

Standard of Review

This court has previously stated that, in a proceeding seeking a use variance, whether an "unnecessary hardship" exists is a question of fact. See Board of Adjustment of the City of Mobile v. Murphy, 591 So.2d 505, 507 (Ala.Civ.App.1991); Board of Adjustment of the City of Mobile v. Pierce, 512 So.2d 107, 108 (Ala.Civ.App.1987). However, in Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So.2d 415 (Ala.1994), the Alabama Supreme Court held that a trial court's determination as to the issue of "unnecessary hardship" is entitled to no deference on appeal, because that issue "requires an application of law to the facts." 636 So.2d at 417. We therefore review the trial court's conclusions in this case without a presumption of correctness.

Unnecessary Hardship

"In order to obtain a use variance, a landowner must demonstrate that as a result of enforcement of the zoning ordinance, his property will suffer unique or peculiar hardships not common to other property in the same zoning district." Brock v. Board of Zoning Adjustment of the City of Huntsville, 571 So.2d 1183, 1184 (Ala.Civ.App.1990). A variance may be granted "where, due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship, provided that the variance will not be contrary to public interest and the spirit of the ordinance will be observed and substantial justice done." Lawless v. Smith, 481 So.2d 1144, 1146 (Ala.Civ.App.1985); Ala.Code 1975, § 11-52-80(d)(3).

"An 'unnecessary hardship' sufficient to support a variance exists where a zoning ordinance, when applied to the property in the setting of its environment, is 'so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private property.' McQuillin, [Municipal Corporations ], at § 25.167 [3d ed.1983]....

" 'No one factor determines the question of what is practical difficulty or unnecessary hardship, but all relevant factors, when taken together, must indicate that the plight of the premises in question is unique in that they cannot be put reasonably to a conforming use because of the limitations imposed upon them by reason of their classification in a specified zone.' "

Ex parte Chapman, 485 So.2d 1161, 1162 (Ala.1986)(quoting City of Mobile v. Sorrell, 271 Ala. 468, 471, 124 So.2d 463, 465 (1960)). Use variances are to be sparingly granted. Ex parte Chapman, 485 So.2d at 1162. "A mere hardship or inconvenience is not enough to justify a variance." Id. at 1162-63. "Moreover, the reasons for granting a variance must be 'substantial, serious, and compelling.' " Id.

The joint venture claims that the zoning ordinance in question causes an unnecessary hardship in regard to this property, for several reasons, and that the joint venture is, therefore, entitled to a variance. First, the joint venture argues, the property is a corner lot with very little yard space and is subject to stacked-up traffic and noise, making it undesirable as residential property. Second, the joint venture observes, the lot is smaller than neighboring residential lots and, unlike those other lots, has no access to a rear alleyway for ingress and egress. Vehicles leaving the property must back out onto Dauphin Street, a busy thoroughfare, and that fact, the joint venture maintains, makes the lot less marketable as residential property. Third, the joint venture points out, the property is close to commercial establishments on Upham Street that have been the site of crimes in recent years. Finally, the joint venture insists, if the property remains residential, it will likely become rental property with a high turnover of tenants and producing insufficient rental income to justify adequate maintenance of the premises. Thus, the joint venture argues, the property will fall into a state of perpetual disrepair and will become a neighborhood eyesore. The joint venture claims, however, that if the accounting firm is allowed to use the property as a satellite office, the firm will maintain the property and it will be an asset to the neighborhood.

The joint venture's claim that it is entitled to a use variance hinges primarily upon the argument that the property will decline in utility and marketability if it remains residential, whereas if it becomes the site of a business office it will achieve its highest and "best use." That argument appears to be based on statements of this court in Mareno v. Board of Adjustment of the City of Mobile, 495 So.2d 1109 (Ala.Civ.App.1985), cert. denied, 495 So.2d 1112 (Ala.1986), and Board of Adjustment of the City of Mobile v. Sigler, 518 So.2d 725 (Ala.Civ.App.1987). In Mareno and Sigler, this court stated that "[t]he evidence established that the best use of the property was for business offices." 495 So.2d at 1111, 518 So.2d at 727 (emphasis added). While evidence of "best use" is pivotal in a condemnation case, see State v. Boone, 276 Ala. 16, 158 So.2d 658 (1963), and highly relevant in a rezoning case, see Allen v. Axford, 285 Ala. 251, 231 So.2d 122 (1969), it is entitled to little or no weight in a variance case. See, e.g., Laney v. Early, 292 Ala. 227, 292 So.2d 103 (1974); Priest v. Griffin, 284 Ala. 97, 222 So.2d 353 (1969); Brock v. Board of Zoning Adjustment of the City of Huntsville, 571 So.2d 1183 (Ala.Civ.App.1990).

In Laney v. Early, property owners sought removal of the restrictive covenant that prevented commercial development of their lots in a residential subdivision. They argued that Interstate Highway 59 had bisected their subdivision and had caused the neighborhood to lose its identity as a restricted residential area. They contended that the restrictions had made their property "practically worthless," and they insisted that their property "should be put to its highest and best use, which is commercial, so as to enable [them] to realize its greatest value." 292 Ala. at 232, 292 So.2d at 108 (emphasis added). Our supreme court stated that " 'evidence of the comparative value of [the lots] for...