Bratton v. City of Florence

• Decision Date: 20 December 1996
• Citation: 688 So.2d 233
• Parties: Randy O. BRATTON and Alice F. Bratton v. CITY OF FLORENCE. 1950701.
• Court: Alabama Supreme Court

Page 233

688 So.2d 233

Randy O. BRATTON and Alice F. Bratton v. CITY OF FLORENCE.

1950701.

Supreme Court of Alabama.

Dec. 20, 1996.

Robert L. Gonce and Melissa Moreau of Gonce, Young & Sibley, Florence, for appellants.

William T. Musgrove, Jr., City Atty., Florence, for appellee.

ALMON, Justice.

Randy and Alice Bratton appeal from a summary judgment for the City of Florence in their action against the City seeking damages pursuant to 42 U.S.C. § 1983. The Brattons argue that the City violated their rights to equal protection of the law when it denied them permission to build an apartment complex. They argue that the zoning ordinance is unconstitutional because, they say, it delegates unbridled discretion to the Planning Commission, and they further argue that the Commission and the City Council acted arbitrarily and capriciously in denying their building permit.

The Brattons purchased land in Florence located in an "R-2" zone, which allows construction of apartments. Apartment complexes bordered the Brattons' property on both the north and the south. At the time of the purchase, City officials told the Brattons that they would be able to proceed with their plan to build a seven-unit townhouse complex on the property. While the Brattons' application for a building permit was pending, the City of Florence adopted an ordinance creating an "R-D" (redevelopment) zone, which required approval from the Planning Commission for building any structure other than a single-family residence. The ordinance specified that the Planning Commission, before granting approval, was to consider what was

"appropriate with regard to transportation and access, water supply, waste disposal, fire and police protection, and other public facilities, as not causing undue traffic congestion or creating a traffic hazard, and as being in harmony with the orderly and appropriate development of the district in which the use is located."

The Brattons' property was within this R-D zone, and the Planning Commission denied their application by a 5-4 vote. While the R-D zone was in effect, the Planning Commission approved a 20- to 30-unit apartment complex located in the R-D zone and on the same street as the Brattons' proposed building. This approved complex also had apartments on both its north and south sides. City Councilman Dick Jordan testified in deposition that the council had feared that the Brattons' proposed development would cause traffic congestion, but he said that the larger complex did not pose such a problem, despite the fact that the two projects were located on the same street. Councilman Jordan did not attempt to distinguish between the Brattons' project and the larger projects on any of the other considerations set out in the R-D ordinance.

On March 16, 1994, the Brattons filed a complaint alleging that the ordinance unconstitutionally gave the Planning Commission unbridled discretion to approve or disapprove projects. The Brattons also claimed that the City of Florence had acted arbitrarily and capriciously in denying their building permit and thus had denied them equal protection. They amended the complaint on August 31, 1994, to add a claim based on the "Takings Clause" of the Fifth Amendment and a state law claim that they had a vested right in the continuation of the previous zoning classification. Those subsequent claims have not been raised or argued on this appeal. On January 3, 1995, the Brattons moved for a partial summary judgment on the issue of the constitutionality of the ordinance. The City opposed the motion and moved for a summary judgment. After the parties had filed briefs in support of and in opposition to the motions, the circuit court entered an order, on January 12, 1996, denying the Brattons' motion for a partial summary judgment and granting the City's motion for a summary judgment.

The threshold issue, that of the constitutionality of the ordinance vesting the Planning Commission with discretion to approve proposed building projects, is not properly before this Court because the Brattons did not notify the attorney general's office of their challenge to the constitutionality of the ordinance. See Armstrong v. Roger's Outdoor Sports, Inc., 581 So.2d 414 (Ala.1990). Section 6-6-227, Ala.Code 1975, provides that the attorney general shall be made a party when a state statute or a municipal ordinance is challenged on constitutional grounds. If the notice is not given, the courts will not have jurisdiction to resolve any claims based on the challenge to the constitutionality of the statute or ordinance. Fairhope Single Tax Corp. v. Rezner, 527 So.2d 1232 (Ala.1987).

Any challenge to the constitutionality of this ordinance notwithstanding, if the commission has exercised its discretion in an arbitrary, capricious, or discriminatory manner, then the Brattons may have been denied equal protection of the law. Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570 (11th Cir.1989). In Greenbriar, the Court of Appeals for the Eleventh Circuit specifically authorized the use of 42 U.S.C. § 1983 as a remedy for violations of any constitutional rights, including the right to equal protection of the law, in the context of challenging a municipality's decision as to zoning. Id. at 1572. See also Church of Jesus Christ of...