Crowder v. Zoning Bd. of Adjustment
| Decision Date | 14 October 1981 |
| Citation | 409 So.2d 837 |
| Parties | R. S. CROWDER v. ZONING BOARD OF ADJUSTMENT and City of Birmingham, Alabama. Civ. 2784. |
| Court | Alabama Court of Civil Appeals |
R. S. Crowder, pro se.
William M. Pate, Jr., Birmingham, for appellee.
This is a zoning case.
R. S. Crowder appeals from the denial of a motion for rehearing by the Circuit Court of Jefferson County dated March 23, 1981. The Zoning Board of Adjustment of Birmingham has filed a motion to dismiss the appeal on the grounds that it is untimely. We agree with this contention and dismiss the appeal.
We start by noting that this is one of several cases brought by Crowder against the Zoning Board of Adjustment. All of these cases were brought by Crowder because of variances granted by the Zoning Board to a person not a party to this appeal. The Board sought dismissal of all these cases. The present case was dismissed by the Circuit Court of Jefferson County on October 31, 1980. Crowder moved for rehearing on or before November 13, 1980. The motion was set for hearing but was continued several times at Crowder's request. It was not until March 23, 1981 that the trial court finally denied the motion.
The Board has filed a motion with this court to dismiss the appeal, contending that under A.R.C.P. 59.1 a motion which remains in the trial court more than ninety days is considered denied, and the time for appeal runs from the ninetieth day. In this case Crowder's motion for rehearing was made on November 13, 1980. Ninety days from November 13, 1980 would have been February 11, 1981. From this date Crowder had forty-two days to file his appeal. However, he did not file his appeal until April 24, 1981, long after the time limits provided in the rules had run.
This identical issue was addressed in Crowder v. Zoning Board of Adjustment, 406 So.2d 917 Ala.Civ.App.1981). This was a previous case brought by Crowder on the same issues in the zoning of another piece of property. In that case we clearly held that the forty-two day period for appeal began to run from the ninetieth day after the filing of the motion for rehearing.
Rule 59.1 is very specific on this issue. It states:
No post-trial motion filed pursuant to Rules 50, 52 or 59 shall remain pending in the trial court for more than 90 days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to dispose of any pending post-trial motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the...
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