City of Selma v. Dallas County

CourtSupreme Court of Alabama
Citation964 So.2d 12
Docket Number1051711.
PartiesCITY OF SELMA v. DALLAS COUNTY.
Decision Date09 March 2007

Alex L. Holtsford, Jr., Rick A. Howard, and April W. McKay of Nix Holtsford Gilliland Higgins & Hitson, P.C., Montgomery, for appellant.

John W. Kelly III and J. Wesley Kelly IV of Kelly & Kelly, Selma; J. Garrison Thompson, Selma; and Winthrop E. Johnson of Webb & Eley, P.C., Montgomery, for appellee.

WOODALL, Justice.

The City of Selma ("the City") appeals from a summary judgment in favor of Dallas County ("the County") in the City's declaratory-judgment action challenging the right of the County to erect a communications tower at the Dallas County courthouse, which is located within the geographical limits of the City. We affirm.

I. Factual Background

In May 2006, the County began construction of a communications tower on the premises of the Dallas County courthouse. The City commenced this action, seeking to enjoin the construction of the tower on the ground that the location of the tower violated two of the City's ordinances: Ord. 01-9091, "An Ordinance to Provide for Designation of Historic Properties or Historic Districts" ("the historic ordinance"), and Ord. COS 013-00/01, "A Local Ordinance Regulating the Siting of Wireless Telecommunications Facilities" ("the tower ordinance"). It also alleged that construction of the tower violated Ala. Const.1901, § 220.

The City and the County filed cross-motions for a summary judgment. The trial court granted the County's motion and denied the City's motion. It found that the tower ordinance and the historic ordinance were zoning ordinances and held that neither ordinance was enforceable against the County. It also held that construction of the tower did not offend § 220. From that judgment, the City appealed.

We provide the underlying facts, which are undisputed or unchallenged, as well as much of the relevant statutory authority, from the affidavit of Brett H. Howard, director of the Dallas County Department of Homeland Security and Emergency Management:

"1. [Brett H. Howard]. . . . serve[s] as the Director of the Dallas County Department of Homeland Security and Emergency Management. [He is] also a member of the Board of Commissioners of the Dallas County Telecommunications District, commonly known as the Dallas County E-911 Board, and [has] been designated as the `point of contact' or `POC' between Dallas County, Alabama, and the [Alabama] Department of Homeland Security [`the state department']. . . .

"2. The Dallas County Department of Homeland Security and Emergency Management [`the county department'] was created by the Dallas County Commission pursuant to § 31-9-10 of the [Alabama Emergency Management Act of 1955, Ala.Code 1975, § 31-9-1 et seq.,] as amended, which authorized and directed each political subdivision of this state to establish an organization for emergency management. [The county] department was created to perform emergency management functions within Dallas County, which was given those powers and authorities set forth in § 31-9-10(b) . . ., including the power to appropriate and expend funds, make contracts, obtain and distribute equipment, materials and supplies for emergency management purposes; to provide for the health and safety of persons and property, including emergency assistance to the victims of any disaster; and to direct and coordinate the development of emergency management plans and programs in accordance with the policies and plans set by the federal and state emergency agencies. The authority of [the county] department is further defined in § 31-9-3(1) of the 1975 Code of Alabama, as amended, and includes:

"`[the] carrying out [of] all emergency functions, other than [functions] for which [military forces or other] federal agencies are primarily responsible, to prevent, minimize, and repair injury and damage resulting from disasters caused by enemy attack, sabotage, or other hostile action, or by fire, flood, earthquake, or other natural cause. These functions include, without limitation, fire-fighting services; police services; communications; radiological, chemical and other special weapons of defense; evacuation of persons from stricken areas; emergency welfare services (civilian war aid); emergency transportation; plant protection; temporary restoration of public utility services; and other functions related to civilian protections, together with all other activities necessary or incidental to the preparation for and carrying out of the foregoing functions.'

"(Emphasis added [in Howard's affidavit].)

"3. [The state department] is a state agency established by the Alabama Homeland Security Act of 2003, appearing in § 31-9A-1, et seq., Code of Alabama 1975, as amended [`the AHSA']. It was established in order to ensure that the preparations in the state of Alabama will be adequate to deal with events of the nature of the unprecedented and devastating attack of September 11, 2001, upon the people and the vital infrastructure of the United States and to protect and preserve the life, health, welfare, and property of the people of Alabama. (See § 31-9A-2, Code of Alabama, 1975, as amended.)

The duties of the [director of the state department] include:

"`Coordinat[ing] the efforts to protect the people of Alabama and the state's critical infrastructure from terrorist attack, including, but not limited to, energy production, transmission and distribution systems, telecommunications, nuclear facilities, public and privately owned information systems, special public and private events, transportation hubs and networks, livestock, water, food supplies, and research institutions. (§ 31-9A-[5(c)(5)], emphasis added [in Howard's affidavit]).' "[The state department] was further established for the purpose of assisting, coordinating, and encouraging homeland security preparedness by state departments and agencies and political subdivisions of the state by authorizing the making of grants to the political subdivisions of this state for the purpose of promoting homeland security. (See § 31-9A-2(b).) As such, the [state department] is the principal state agency which coordinates the receipt and distribution of funds available from any source with regard to Homeland Security related items, issues, and services. (See § 31-9A-4(b).)

"4. The [AHSA] further provides for the coordination of functions and activities with the federal government and with federal legislation and regulations (see § 31-9A-8). [It also] empowers the [state-department] director to prepare a comprehensive plan and program for homeland security `to be integrated and coordinated with the plans of the federal government and of other states to the fullest possible extent'; and `to cooperate with the United States Department of Homeland Security in matters pertaining to security and the defense of the state and nation.' Section 31-9A-10 ... authorizes the [state-department] director to accept offers to the state and to its political subdivisions of equipment, supplies, materials, or funds by way of gift, grant, or loan for the purposes of homeland security.

"5. In fiscal year 2004, the [state department] set aside federal grant funds for the purchase of interoperable communications equipment for Alabama's counties. This equipment is commonly known as `bridging equipment,' designed to allow all emergency responders within each county to communicate with each other over existing radio frequencies. The greatest obstacle faced by emergency responders in responding to a disaster is the inability to communicate . . . . For example, ... the city police operate on a different frequency than the county sheriff's department[s] and county volunteer fire departments. . . . Interoperable communications are part of a multiphased, multi-year plan by the National Department of Homeland Security. . . . [The County's] plan to obtain a tower and bridging equipment is a part of Homeland Security's plan to ensure county emergency responders can communicate with each other effectively across the state, and it meets the deadlines and goal of the National Homeland Security plan. . . . The Homeland Security Grant Program exists to help states to obtain resources `critical to building and sustaining capabilities to achieve the Interim National preparedness Goal and implement State and Urban Area Homeland Security Strategies.'. . . As a small cog in the larger machine, i.e., Homeland Security's national goal of greater security, the lack of interoperable communications in Dallas County this year would set not only Dallas County back, but, also, the State of Alabama in its attempt to continue to advance along with the national goal of greater security in each locality.

"6. The interoperable communications plan developed by the [state department] is to provide funding for a communications bridge in every county. The tower and bridging equipment is critical because it will allow all emergency responders, including the Dallas County sheriff's department, the municipal police and fire departments, and the various volunteer fire departments to communicate with one another regardless of the radio frequency utilized by them. In addition, this interoperability would allow for emergency responders who come to Alabama in the event of disaster to communicate, no matter on what frequency their communications systems may operate. The tower and bridging equipment will also provide means to tie communications together statewide and possibly nationwide. The [state department] reserved $112,000 for the acquisition of this bridging equipment and communications tower.

"7. [Howard] subsequently executed in [his] capacity as Dallas County POC a cooperative agreement with the [state department] for the allocation of funds in the amount of $75,000 to be used for the construction of [the] communications tower. It was a requirement of the grant that these funds be allocated for the purchase of a tower...

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    • Alabama Court of Criminal Appeals
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    ...of his argument that the City lacked authority to enact and enforce § 13-51(3), Peak cites cases such as City of Selma v. Dallas County, 964 So. 2d 12 (Ala. 2007), and Town of Mulga v. Town of Maytown, 502 So. 2d 731 (Ala. 1987), for the proposition that a municipality has no authority to e......
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