City of Orange Beach v. Boles
| Docket Number | 1210055,1210056 |
| Decision Date | 16 June 2023 |
| Parties | City of Orange Beach v. Ian Boles City of Orange Beach v. Ian Boles |
| Court | Alabama Supreme Court |
Appeal from Baldwin Circuit Court (CV-16-900955, CV-17-900361)
In these consolidated appeals, the City of Orange Beach ("the City") appeals from a judgment entered on a jury verdict in two consolidated actions below in favor of Ian Boles in regard to a dispute over the City's inspection of Boles's property. We reverse and remand.
Between 2013 and 2015 Boles constructed, without any apparent issues two eight-bedroom duplexes on property he owned that is located within the City limits ("the beachfront property"). In September 2015, Boles filed with the City a building-permit application seeking a permit to construct two additional multiple-level duplexes on the beachfront property. Additionally, in October 2015, Boles filed with the City a separate building-permit application for the construction of a single- family dwelling on another parcel of property that Boles owned within the City limits ("the Burkhart Drive property"). At the time of each permit request, Boles completed a "Home Builders Affidavit" attesting that he was the owner of the property; that he would be acting as his own contractor on the proposed project, which would not be offered for sale; and that he was, thus, exempt from the requirement that he be licensed under Alabama's Home Builders Licensure Law. See, generally, § 34-14A-1 et seq., Ala. Code 1975.
As to each of Boles's requests, both the building-permit application itself and an accompanying stormwater-permit application specifically provided that the applicant agreed among other things, that the proposed construction would comply with the provisions of the 2012 International Residential Code, which the City had adopted, as well as with the City's ordinances. See, generally, § 11-45-8, Ala. Code 1975. The City approved both building-permit applications. In accordance with the City's standard operating procedure at the time, the building-permit packages issued to Boles provided that a "subcontractor list must be submitted to [the] City ... finance department prior to [an electrical and/or gas] meter[-]release inspection." (Capitalization and emphasis omitted.)[1] Elsewhere, the building-permit packages provided to Boles explained that a certificate of occupancy for the proposed structure would not be issued until, among other things, "a subcontractor list has been submitted to the [City's] Finance Department." Boles also received with each package a blank subcontractor list ("the subcontractor form") for identifying all subcontractors for the proposed project, which specified that it was due within 10 days of the issuance of the building permits.
As explained by the City, the subcontractor form was used by its Finance Department to verify that contractors or subcontractors were properly licensed. The subcontractor form included, as to each subcontractor performing work on a project, a space for recording the subcontractor's license number, the type of work performed, the subcontractor's contact information, and the amount the subcontractor received for performance of the specified work. The record suggests that the verification process included not only verifying that a particular contractor had "applied for a City license, but also [to] check if there was any other State licenses that might be applicable" or concurrently required. See, e.g., § 34-14A-2(12), Ala. Code 1975 (); § 34-14A-5, Ala. Code 1975 ().
Landon Smith, the City's "chief building official" at all pertinent times, described the required subcontractor form as serving the following purposes:
Evidence in the record also indicated that the City was aware that all potential subcontractors might not be known in the early stages of a project and that, as construction on permitted projects proceeded, the City would, even in the absence of a completed subcontractor form, conduct any and all inspections up to the meter-release inspection, but that a completed subcontractor form was a prerequisite for a meterrelease inspection because, by that point in construction, the information necessary to complete the subcontractor form should be readily available.
Following issuance of both permits, Boles apparently proceeded as planned with construction at the beachfront property and at the Burkhart Drive property, including subcontracting out certain work and undergoing various periodic inspections by the City as construction progressed. It is undisputed that, after obtaining those permits and undertaking construction, Boles did not complete and timely return to the City a completed subcontractor form for either project.
In June 2016, as construction at the beachfront property was nearing completion, Boles's electrical subcontractor apparently contacted the City to request an electrical meter-release inspection upon completion of the electrical portion of that project, i.e., the subcontractor sought the required City approval before permanent electrical power service could be supplied to the beachfront property. Citing Boles's failure to complete and return the required subcontractor form, the City, through Smith, refused to conduct the meter-release inspection.
In response, Boles offered to provide "the names and information of the major subcontractors, but not the amount in which those subcontractors were paid" -- as he had allegedly done with prior projects within the City limits. Also according to Boles, based upon the City's issuance, at various stages of construction, of other construction-related permits to his subcontractors, the City "already [was] in possession of the information it [was] withholding the inspection for." Referencing "the governing rules stating that a building inspector shall inspect _ property for safety," Boles further contended that the City and Smith either lacked the authority to and/or were exceeding their authority in refusing to inspect the beachfront property until the City received information to which, according to Boles, it was not entitled.
After an unsuccessful appeal of the City's refusal to conduct the meter-release inspection at the beachfront property to the City's Construction Board of Adjustment and Appeals, Boles sued the City and Smith (case no. CV-16-900955) in the Baldwin Circuit Court, asserting claims seeking declaratory and injunctive relief as well as claims seeking monetary damages. In particular, as stated in Boles's fourth amended complaint, he sought a judgment declaring "that [t]he City and Smith have no authority to require Boles to provide financial information in regards to his subcontractors," a preliminary injunction directing that the City immediately conduct a meter-release inspection at the beachfront property as requested, a permanent injunction, compensatory damages, and "such other, further or different relief as may be just and proper." In their ensuing answers, the City and Smith pleaded, among other things, both "substantive immunity" and "the benefit of all statutes and common law conferring immunity on municipalities."
Following a hearing, the trial court awarded Boles, as to the beachfront property, a preliminary injunction "to the extent that the [City] is to conduct the electrical inspection and meter[-]release ... inspection which would allow [Boles] to continue construction on the building subject to the litigation." Pursuant to the trial court's order, the City performed the requested meter-release inspection at the beachfront property. All issues identified during that inspection were subsequently corrected, and the meter was released for service.
Subsequently, when construction at the Burkhart Drive property neared completion, the City emailed Boles, noting that, although his electrical subcontractor had requested a meter-release inspection, the City had yet to receive a completed subcontractor form from Boles for that project. The City's email correspondence further provided instructions for Boles's submission of the completed subcontractor form and indicated that, "[u]pon receipt and review, [the City would] schedule the electrical meter[-]release inspection." Boles, however, through legal counsel, declined to furnish the completed subcontractor form but, nonetheless, demanded that the City perform the requested meterrelease inspection.
Thereafter the City commenced in the Baldwin Circuit Court its own declaratory-judgment action against Boles (case no. CV-17-900361) with regard to the project at the Burkhart Drive property. Specifically, among other relief, the City sought a judgment declaring that Smith was authorized to require a building-permit holder to provide a completed subcontractor form for a permitted project; that applicants like Boles, who have applied for and accepted a building permit, are required...
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