CITY OF RUSSELLVILLE ZONING BD. v. Vernon

• Decision Date: 24 May 2002
• Citation: 842 So.2d 627
• Parties: CITY OF RUSSELLVILLE ZONING BOARD OF ADJUSTMENT v. Raymond VERNON.
• Court: Alabama Supreme Court

842 So.2d 627

CITY OF RUSSELLVILLE ZONING BOARD OF ADJUSTMENT v. Raymond VERNON.

1010331.

Supreme Court of Alabama.

May 24, 2002.

Rehearing Denied August 16, 2002.

Eddie Beason, Russellville, for appellant.

James P. Atkinson, Florence, for appellee.

WOODALL, Justice.

The Zoning Board of Adjustment ("the Board") of the City of Russellville ("the City") appeals a judgment granting Raymond Vernon's request for a variance from zoning restrictions set forth in the City's zoning ordinance. We reverse and remand.

Raymond Vernon owns property in the City, comprising one city block. In 1997, his daughter purchased a mobile home and installed it on his property to serve as her residence. At that time, his property was subject to the "Zoning Ordinance of Russellville, Alabama" ("the Ordinance"), and was in an area zoned as an "R-3 Residential District." The Ordinance prohibited, among other things, the use of "mobile homes [and] mobile home parks." Bois Porter, the City Building Inspector, advised Vernon and his daughter that if they removed the "tongue" and "underpinned" the mobile home, the Board would grant a variance from the prohibited uses. After they made the suggested modifications, the variance was granted.

In March 2000, Vernon purchased a mobile home and moved it onto his property. Intending to lease this home for residential purposes, he removed the tongue and underpinned the unit on the site. However, before utilities were provided to this mobile home, Porter visited the site and told Vernon that he could not proceed with the installation unless he obtained a second variance from the Board.

Vernon appealed to the Board for a variance. When the Board denied Vernon's second variance request, Vernon appealed to the Franklin Circuit Court. Following a bench trial, the court entered a judgment in favor of Vernon. It found that the Board's action was "an `arbitrary and capricious interference with the basic right' of [Vernon] to utilize his property in an appropriate manner." From the denial of its motion to alter, amend, or vacate the judgment, the Board appealed.

This case is controlled by the following well-established principles:

"The board of adjustment derives its power to grant variances from Code 1975, § 11-52-80(d)(3), which vests the Board with the following power:

"`To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done.'

"Variances were allowed by the legislature `to permit amelioration of the strict letter of the law in individual cases.' McQuillin, Municipal Corporations § 25.160 (3d ed.1983). However, variances should be sparingly granted, and only under `peculiar and exceptional circumstances' of unnecessary hardship. Priest v. Griffin, 284 Ala. 97, 101, 222 So.2d 353, 357 (1969); Martin v. Board of Adjustment, 464 So.2d 123, 125 (Ala. Civ.App.1985). The pivotal question is whether, due to special conditions, a literal enforcement of a zoning ordinance will result in `unnecessary hardship.' Priest v. Griffin, supra; Alabama Farm Bureau Mutual Cas. Ins. Co. v. Board of Adjustment, 470 So.2d 1234, 1237 (Ala.Civ.App.1985); Pipes v. Adams, 381 So.2d 86, 87 (Ala.Civ.App.1980).

"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, supra, at § 25.167. This Court has approved the following definition of `unnecessary hardship':

"`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.'

"City of Mobile v. Sorrell, 271 Ala. 468, 471, 124 So.2d 463, 465 (1960), quoting Brackett v. Board of Appeal, 311 Mass. 52, 39 N.E.2d 956 (1942). A mere hardship or inconvenience is not enough to justify a variance. McQuillin, supra, at § 25.168; Martin, 464 So.2d at 125. Moreover, the reasons for granting a variance must be `substantial, serious, and compelling.' McQuillin, supra, at § 25.167.

"Also, a `self-inflicted or self-created hardship may not be the basis for a variance or for a claim thereof.' Thompson, Weinman & Co. v. Board of Adjustments, 275 Ala. 278, 281, 154 So.2d 36, 39 (1963); Martin, supra. `When the owner himself by his own conduct creates the exact hardship which he alleges to exist, he certainly should not be permitted to take advantage of it.' Josephson v. Autrey, 96 So.2d 784, 789 (Fla.1957), cited with approval in Thompson, Weinman & Co., supra."

Ex parte Chapman, 485 So.2d 1161, 1162-63 (Ala.1986) (emphasis added) (footnote omitted). "Hardship alone is not sufficient. The statute says `unnecessary hardship,' and mere financial loss of a kind which might be common to all of the property owners in a use district is not an `unnecessary hardship.'" Nelson v. Donaldson, 255 Ala. 76, 84, 50 So.2d 244, 251 (1951) (emphasis added). The proliferation of variances "tend[s] to destroy or greatly impair the whole system of zoning." Priest v. Griffin, 284 Ala. 97, 102, 222 So.2d 353, 357 (1969).

The trial court made findings of fact based on evidence presented ore tenus. Nevertheless, we review its judgment de novo, because the dispositive issue is a legal one. The ore tenus presumption of correctness applies to findings of fact, not to conclusions of law. See Ex parte Cater, 772 So.2d 1117, 1119 (Ala.2000); Eubanks v. Hale, 752 So.2d 1113, 1144-45 (Ala. 1999); McCluney v. Zap Prof'l Photography, Inc., 663 So.2d 922, 924 (Ala.1995) ("The ore tenus rule applies only to the trial judge's factual findings on disputed evidence."). We assume the trial court's factual findings are correct, but we conclude that it misapplied the well-established legal principles set out above. More specifically, a property owner is not entitled to a variance where the hardship suffered because of the zoning restriction is "self-inflicted or self-created." It is undisputed that Vernon knew of the zoning restriction against mobile homes before he purchased his mobile home. Nevertheless, he purchased the mobile home without first seeking and securing a variance. Clearly, Vernon's hardship is self-created.

Vernon, however, cites two cases, which, he argues, recognize an exception to the self-created-hardship rule, namely, Board of Zoning Adjustment of Huntsville v. Mill Bakery & Eatery, Inc., 587 So.2d 390 (Ala.Civ.App.1991); and Board of Zoning Adjustment of Muscle Shoals v. LaGrange Church of the Nazarene, Inc., 507 So.2d 538 (Ala.Civ.App.1987). Those cases, however, are distinguishable.

LaGrange involved the following facts: The LaGrange Church of the Nazarene, Inc. ("the Church"), purchased property in an area not zoned for churches and subsequently obtained a variance to construct a church building on a five-acre tract of that property. LaGrange, 507 So.2d at 539. In an attempt to raise money for the proposed construction, the Church sold two of the five acres. After it sold the property, it was informed that a second variance would be necessary in order to construct the building on the remaining three acres. Id. The second variance, however, was denied. Id.

The Church appealed the denial, and a jury returned a verdict for the Church. The Court of Civil Appeals affirmed the judgment entered on that verdict. It noted that a variance should "not be granted where the property owner merely suffers a financial loss of a kind that is common to all of the property owners of the use district." 507 So.2d at 539. It concluded, however, that, because the Church had relied on the first variance, it had suffered a unique hardship. Specifically, it explained: "The Church's unique...