City of Tuscaloosa v. Bryan

Decision Date27 March 1987
Citation505 So.2d 330
PartiesCITY OF TUSCALOOSA, et al. v. C.H. BRYAN, Sr., et al. 84-1348.
CourtAlabama Supreme Court

Dena Byrd and Robert W. Ennis IV of the City of Tuscaloosa Legal Dept., for appellants.

Ralph I. Knowles, Jr., of Drake, Knowles & Pierce, Tuscaloosa, for appellees.

HOUSTON, Justice.

This case involves the proposed development of an apartment complex on a 10.1-acre tract of land adjoining the Cherokee Hills, Woodland Hills, and Beech Hills subdivisions of the City of Tuscaloosa. The appellees are owners of residential property located in those subdivisions. The appellants are the City of Tuscaloosa; the city's mayor, Al Dupont; and city commissioners Hilliard Fletcher and Banks Quarles. The appellees filed their complaint in the Circuit Court of Tuscaloosa County, seeking a declaratory judgment and an injunction against the development of the apartment complex as proposed. The trial judge, Honorable John M. Karrh, after hearing ore tenus evidence, found in favor of the appellees and granted the injunction. We affirm.

Judge Karrh's judgment reads as follows:

"This case arises out of a decision by the City of Tuscaloosa to allow an extension of a currently existing ninety-unit apartment complex onto approximately 10.1 acres of currently vacant land which is zoned R-1 and adjoins or is close to the homes of the plaintiffs. The plaintiffs filed this action and have asked declaratory and injunctive relief which will declare the action of the City to be illegal and permanently enjoin the building of the said apartment complex. Essentially, they maintain that the City violated its own Zoning Ordinance and related Subdivision Regulations by: (A) approving the said extension by calling it a Planned Unit Development (PUD) when it does not meet the requirements of a PUD; and, (B) not following mandatory procedural requirements. Although the owners and putative developers of the 10.1 acres were not originally named as defendants, they have been allowed to intervene as defendants and have participated fully in the defense of the case.

"A full ore tenus hearing before the Court was held on all issues on June 25 and 26, 1985. Numerous witnesses were heard and voluminous maps, charts, plats, photographs and documents were admitted into evidence. In addition, at the specific request of all parties, the Court conducted an on-site inspection of the current existing apartment complex, the area proposed for the expansion, and the surrounding area.

"Based upon the pleadings, all evidence legally presented (including the Court's tour), and the applicable law, the Court makes the following findings of fact and conclusions of law:

"1. In the mid to late 1960's the developer/intervenor (hereinafter 'developers') successfully petitioned the City to rezone approximately 9.2 acres of land they owned on Loop Road from R-1 to a designation that would allow an apartment complex to be built. The acreage adjoined Loop Road--a major traffic artery--and was buffered from most of the residential areas behind it, including Cherokee Hills and Woodland Hills, by the 10.1 acres which is the subject of this litigation and which remained zoned R-1.

"2. Within a couple of years of the rezoning, an apartment complex of ninety units was constructed on the 9.2 acre plot. This was done in two stages. The complex is generally known as Williamsburg East but in some exhibits is called Williamsburg I and II. Although the apartments of Williamsburg East would generally be deemed to be nice and desirable apartments, the land was cleared of trees and there is almost no usable open space within the complex. A relatively small swimming pool and incidental clubhouse was included at the back of the 9.2 acres for the use of the residents.

"3. Subsequently, the owners of Williamsburg East purchased the 10.1 acres between the apartment complex and the surrounding residential property. The developers knew at the time of purchase that the property was zoned R-1.

"4. The residential lots surrounding the 10.1 acres vary somewhat in terms of the size of the lots and the houses as well as their condition. However, in general, the lots are large with a great deal of vegetation and resultant privacy. All are single family residences. The Court accepts the testimony of the homeowner plaintiffs who believe their property will be devalued economically or aesthetically if an apartment complex is built on the 10.1 acres. During the entire period relevant to this litigation, the 10.1 acres has been zoned R-1 or its equivalent.

"5. The City of Tuscaloosa has duly adopted a Zoning Ordinance and Subdivision Regulations pursuant to the enabling statutes provided by the Alabama legislature. See §§ 11-52-70 and 11-52-30, Code of Alabama.

"6. If the City of Tuscaloosa chooses to regulate land use then it must follow its own rules and regulations as are established in the Zoning Ordinance and Subdivision Regulations. Lynwood Property Owners [Ass'n] v. Lands Described, 359 So.2d 357, 359 (Ala.1978); Smith v. City of Mobile, 374 So.2d 305, 307 (Ala.1979); City of Guntersville v. Shull, 355 So.2d 361 (Ala.1978).

"7. In early 1985, the developers decided to expand the currently existing Williamsburg East apartment complex into the 10.1 acres and to build ninety additional apartment units thereon. The apartments were to be similar in design to the existing units and the two developments were to be operated as an integral unit. No recreational or other amenities of any kind were ever planned to be provided on the 10.1 acre plat [sic].

"8. An 'R-1 Resident District' is defined by the Tuscaloosa Zoning Ordinance as follows:

" 'This district is created to provide minimum standards for the development and use of single-family detached housing built on separate lots and fully meeting modern standards with respect to light, air, open spaces, and off-street parking.'

" § 35-31(a), Zoning Ordinance of City of Tuscaloosa.

"9. The developers applied to the Tuscaloosa Zoning Commission to have the 10.1 acres rezoned to RMF-1 so that the apartment units could be built.

"10. An 'RMF-1 Multi-Family Residence District' is defined by the Tuscaloosa Zoning Ordinance as follows:

" 'This district is created to provide minimum standards for the development and use of apartments meeting modern standards with respect to light, air, parking, and usable open space.'

" § 35-31(e), Zoning Ordinance of the City of Tuscaloosa.

"11. The developers were turned down in their attempt to get a rezoning of the property to RMF-1 (the primary zoning designation for apartment complexes). Nonetheless, shortly thereafter they decided to attempt to get the apartment complex extension approved as a Planned Unit Development since PUD's are 'permitted uses' under the R-1 designation, if the requirements of the Zoning Ordinance related to PUD's are met.

"12. A 'Planned Unit Development' under the Tuscaloosa Zoning Ordinance is defined as:

" 'A coordinated development laid out upon a tract of land, in single ownership or control. Subject to the provisions of this chapter, a Planned Unit Development may differ with respect to lot size, bulk or type of building, permitted land uses, lot coverage, and required open space from the standards otherwise prescribed for the district concerned. (See Article XII.)'

" § 35-5(41), Zoning Ordinance of the City of Tuscaloosa. Article XII of the Zoning Ordinance includes §§ 35-121 through -126 and specifies the standards that must be followed if a developer is to be permitted to use land in an R-1 area as a PUD for other than single-family residences.

"13. Statutes and ordinances providing for land use restrictions are to be strictly construed. Smith v. City of Mobile, 374 So.2d 305, 307 (1979).

"14. § 35-4 of the Zoning Ordinance of the City of Tuscaloosa explicitly states that the standards established therein are the 'minimum requirements' and that the regulations which require the greatest restrictions are always to be controlling. Further, the General Development Plan for the City of Tuscaloosa, at page 105, states that 'Subdivision, building, housing and zoning ordinances should be strictly enforced.'

"15. § 35-5 of the Zoning Ordinance of the City of Tuscaloosa states that as used in the Zoning Ordinance: 'The word "may" is permissive; the word "shall" is mandatory.'

"16. § 35-122 of the Zoning Ordinance provides the specific 'criteria' that must be met by any proposed PUD in Tuscaloosa.

"17. § 35-122(b) requires that 'a tract proposed for PUD should consist of a single contiguous tract ...' of at least 15 acres unless the design of the PUD 'possesses extraordinary merit.'

"The proposed PUD is to contain sixty units instead of the original ninety planned. Other than the small increase in the space for yards behind and around the apartment units which the decrease provided, no other changes of substance were made in the proposed development before it was submitted as a PUD. The large area of space on the proposed plat set aside as 'permanent open area' to be dedicated for the use of the community is in fact primarily composed of a steep and deep ravine which is not usable for any purpose--recreation or otherwise. Although there are designations within this 'open area' of two 'lakes' on the plat submitted to the Planning Commission and the City, there are, in fact, no lakes on the plat. Those areas were referred to in other plats as 'silt collecting ponds.' In any event, the area is of no usable benefit to the residents. Consequently, the trade-off usually made between the City and the developers to allow a higher density of living units for creative development of usable common space does not exist.

"Almost all of the usable acreage within the 10.1 acres will be denuded and excavated and will be consumed with the apartments, streets, and parking places. As has been found above, the apartments will be similar in design to those in the...

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