City of Russellville v. Vulcan Materials Co., 78-235
| Citation | 382 So.2d 525 |
| Decision Date | 28 March 1980 |
| Docket Number | No. 78-235,78-235 |
| Parties | CITY OF RUSSELLVILLE, a Municipal Corporation in the State of Alabama v. VULCAN MATERIALS COMPANY, a corporation. |
| Court | Supreme Court of Alabama |
Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Benjamin Cohen, Asst. Attys. Gen., Montgomery, for appellant.
Macbeth Wagnon, Jr. and Gary E. Meringer, of Bradley, Arant, Rose & White, Birmingham, for appellee.
At issue in this case is the validity of a municipal ordinance challenged on both constitutional and statutory grounds. The ordinance purports to regulate the detonation of explosives within the police jurisdiction and corporate limits of the City of Russellville. It is challenged by Vulcan Materials Company, which operates a limestone quarry located at the city limits. Because we agree with the trial court that the ordinance is beyond the constitutional power of the City to enact, we affirm on that ground, and pretermit discussion of the numerous other issues raised on this appeal.
The history of this litigation, insofar as pertinent, is as follows:
Vulcan, or its predecessor in interest, has operated the limestone quarry in question since 1959. The process of removing limestone rock from the quarry requires the periodic use of explosives. The evidence introduced at trial tended to show that the quarry has detonated explosives without increase in the frequency or intensity of the blasting since 1959. It is located near two residential subdivisions which, it is alleged, were created prior to the beginning of the blasting, but which have been built up considerably since that time. Residents of the subdivisions testified at trial that the blasting caused them annoyance and property damage of various sorts and that petitions had been circulated around the neighborhood for years in an attempt to halt the blasting.
In 1976, the then Attorney General filed an action in the Circuit Court for Franklin County seeking to enjoin the blasting on the theory that it constituted a nuisance within the meaning of Code 1975, § 6-5-120. Following a trial on the merits, the trial court issued an interlocutory decree instructing Vulcan to conduct its blasting so as to limit the resulting particle velocities to 0.5 inch/second at a point 1600 feet from the blast, and 0.75 inch/second 1100 feet from the blast.
On November 21, 1977, the City Council of Russellville, after consulting with an expert in the field of vibration damage to materials, adopted Ordinance 77-113, which reads in pertinent part:
All blasting within the police jurisdiction of Russellville shall be conducted so as to cause a particle velocity of no greater than 0.4 inch/second for any occupied dwelling located within the city limits of Russellville. (Emphasis added.)
At the time this ordinance was adopted, both Vulcan and the City mistakenly assumed that the nearest dwelling to the quarry within the city limits was located at a distance of 1100 feet from the quarry. Vulcan filed this action seeking to have enforcement of the ordinance enjoined and for a declaratory judgment that the ordinance is unconstitutional and beyond the authority of the City to enact. At trial, it introduced expert testimony to the effect that a restriction lower than 1.0 inch/second does not produce any greater safety margin than that provided by a restriction of 1.0 inch/second, that being the threshold particle velocity for materials used in building construction below which no damage will occur. The relief requested was denied by decree dated August 7, 1978.
It was subsequently discovered that the city limits extend further than the parties had assumed, and that the quarry is located partially within the city limits rather than entirely within the police jurisdiction, as had been believed. Also included within the city limits as properly drawn is a house owned by Vulcan and located merely 250 feet from the blasting. The dwelling is rented and occupied by one Lonnie Grissom. This discovery required application of the 0.4 inch/second particle velocity standard to a point 250 feet from the quarry rather than 1100 feet.
On October 16, 1978, Vulcan and the City filed a Joint Stipulation of Facts in which the correct location of the city limits was agreed to, and in which it was stipulated that enforcement of the ordinance would make operation of the quarry economically unfeasible. Vulcan filed a motion for relief from judgment based on this new evidence, contending that the...
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