City of Birmingham v. Norris

• Decision Date: 27 July 1979
• Parties: CITY OF BIRMINGHAM, a Municipal Corporation v. Arlie NORRIS. 78-125.
• Court: Alabama Supreme Court

Page 854

374 So.2d 854

CITY OF BIRMINGHAM, a Municipal Corporation v. Arlie NORRIS.

78-125.

Supreme Court of Alabama.

July 27, 1979.

Rehearing Denied Sept. 14, 1979.

Charles H. Wyatt, Jr., Birmingham, for appellant.

Douglas Corretti, Birmingham, for appellee.

MADDOX, Justice.

In this case we are called upon to decide whether to affirm the trial court's finding that the City Council of Birmingham acted in an arbitrary, capricious manner in refusing to rezone appellee's property from residential to business.

Issues presented and discussed herein include:

1. In reviewing an action of a municipal or county legislative body, what is the trial court's permissible scope of review?

2. What constitutes a "fairly debatable" question presented to the legislative body so as to remove an adverse decision from the realm of arbitrariness or capriciousness?

Appellee Norris owns several parcels of land on U. S. Highway 78 adjacent to the intersection with Interstate Highway 59-20 in Birmingham, including service stations located on both sides of the highway. It is estimated that the intersection may be the busiest in the state with over 90,000 vehicles passing through it each day. Norris developed plans which would have permitted the building of fast food restaurants on the two parcels of land here in question. The property is zoned for residential purposes only.

The landowner filed a petition to change the zoning; the City Zoning and Planning Commission denied it. The landowner then directly petitioned the Birmingham City Council, the final zoning authority. The Council held a public hearing at which the landowner presented testimony and urged rezoning. Persons opposed to the proposed rezoning also presented testimony. The City Council, by a vote of 5 to 4, denied the rezoning request.

The landowner then filed the present action and alleged:

"7. The Defendant's failure and refusal to rezone said real property so that same may be used as hereinabove set forth, was arbitrary, capricious and unlawful and has no conceivable relationship to the health, safety, morals or general welfare of the said City of Birmingham or its inhabitants, . . ."

At the hearing ore tenus on the matter in Circuit Court, the landowner and a city councilman testified, as did two expert witnesses hired by the landowner who were not present at the Council's hearing. The experts testified, inter alia, there could be no realistic use of the subject property for residential purposes and the ideal use would be for commercial purposes such as a fast food restaurant. The City did not present any testimony. The trial judge issued an interim decree requesting the City Council to reconsider the matter and hear the additional testimony concerning the usefulness of the property for residential purposes. The City Council refused.

The trial court then entered its final decree finding the City's actions constituted an unauthorized and unwarranted exercise of power, and thereby enjoined the City from enforcing zoning ordinances with respect to the property. From that decision, the City appeals.

The City first claims that the trial court was without jurisdiction to overturn the Council decision. We disagree. In a similar case, this Court opined that it is within the power of the trial court to determine whether the legislative actions of a municipal council or county commission were arbitrary or capricious, if, in essence, no debatable issue was presented. Aldridge v. Grund, 293 Ala. 333, 302 So.2d 847 (1974), cert. denied 421 U.S. 1007, 95 S.Ct. 2411, 44 L.Ed.2d 676. There, this Court stated the issue, as follows:

" . . . Was there presented to the Commission a debatable issue as to whether or not the rezoning was for the purpose of promoting health, safety, morals, or the general welfare of the county?"

Similarly, in Allen v. Axford, 285 Ala. 251, 231 So.2d 122 (1969), at p. 257, 231 So.2d at p. 127, this Court held:

" . . . (T)he right of a governing body to enact zoning ordinances is not unlimited, and the ordinance must bear some substantial relation to the public health, safety, morals, general welfare, and general convenience. . . . "

" . . . Counsel for appellants set forth the principle well established in our decisions that if the question of zoning or rezoning is fairly debatable, a court will not substitute its judgment for that of the municipal government body acting in legislative capacity. . . . "

In Marshall v. City of Mobile, 250 Ala. 646, 649, 35 So.2d 553, 555 (1948), the Court said:

" . . . Before the courts will interfere, it must be made to appear that such an ordinance passes the bounds of reason and assumes the character of a merely arbitrary fiat."

Although the trial court merely found an unauthorized and unwarranted exercise of power by the City Council, a fair reading of the final decree indicates the court applied the rule of this Court's decisions. The decree noted:

" . . . (T)he Court is impressed with the fact that there is no apparent valid...