Cudd v. City of Homewood, 6 Div. 627

• Decision Date: 29 May 1969
• Docket Number: 6 Div. 627
• Citation: 284 Ala. 268,224 So.2d 625
• Parties: Eleanor F. CUDD et al. v. CITY OF HOMEWOOD, a Municipal Corporation, et al.
• Court: Alabama Supreme Court

Page 625

224 So.2d 625

284 Ala. 268

Eleanor F. CUDD et al. v. CITY OF HOMEWOOD, a Municipal Corporation, et al.

6 Div. 627.

Supreme Court of Alabama.

May 29, 1969.

Jenkins, Cole, Callaway & Vance, Birmingham, for appellants.

Jack H. Harrison, of Beavers, Shannon, Harrison and Charles E. Sharp, of Sadler, Sadler, Sullivan & Sharp, Birmingham, for appelles.

BLOODWORTH, Justice.

Appellants appeal from a final decree of the circuit court of Jefferson County, in equity, denying relief in a declaratory judgment suit which challenged Zoning Ordinance 945, enacted by the City of Homewood, Alabama.

Complainants (appellants) are residents of Homewood who own real estate within the immediate area of the subject property which was zoned by the ordinance from a residential to a commercial classification. Respondents (appellees) are the City of Homewood and Eugene Wylie Corporation, a promoter seeking to build a shopping center on the property in question, which is located within the City of Homewood, or its police jurisdiction. It includes, viz:

'That tract of land lying in Jefferson County, Alabama, lying in Section 17, Township 18 South, Range 2 West * * *. * * *'

A classification of 'B--1 Business District' was assigned to the property by the enactment of Ordinance 945.

Complainants brought the declaratory judgment action seeking to have ordinance 945 declared invalid on grounds that it is illegal, arbitrary and capricious. The trial court denied the relief sought. From that adverse ruling the property owners appealed.

There are ten assignments of error. Assignments of error 1, 7, 8, 9 and 10 are argued together. In these assignments complainants contend that the trial court's final decree is contrary to the evidence and that the ordinance in question is illegal, arbitrary and capricious. In assignments of error 3, 4 and 5 they maintain that the City of Homewood did not have zoning authority over the subject property in that part of the property is situated wholly outside the City of Homewood.

Thus, appellants claim this appeal raises two questions: First, whether the ordinance was a proper exercise of police power under the great weight of the evidence? And, second, whether the City of Homewood has the authority to zone that part of the affected property which lies outside the city limits?

Initially, we note that passage of a zoning ordinance is a legislative act, and it is well established that municipal ordinances are presumed to be valid and reasonable, to be within the scope of the powers granted municipalities to adopt such ordinances, and are not to be struck down unless they are clearly arbitrary and unreasonable. City of Mobile v. La Clede Hotel Co., 221 Ala. 531, 129 So. 477.

Appellants argue the challenged ordinance was not a proper exercise of police power because it was adopted by the City of Homewood for the purpose of financial gain to it. Appellants assert the evidence shows the promoter of the shopping center proposed to the city that, if it would rezone the property which includes a park and armory, the promotor would swap a new park and a new armory site for the old sites and build thereon a shopping center which would bring in over $350,000 a year in increased taxes to the city. Appellants thus contend that the purpose of the rezoning was solely on account of a promise of direct financial gain to the city, although appellants do not impugn the 'integrity of the city officials,' who they say were 'simply trying to make a profitable deal for the city.' Appellants aver that in the exercise of rezoning there must be some substantial relationship between the ordinance of rezoning and the promotion of public health, safety, morals and general welfare (i.e. the 'police power').

We are cited to numerous cases in support of the general proposition that financial benefit to the city is not a permissible justification for the exercise of police powers.

One of the cases cited is Willott v. Village of Beachwood (1963), 119 Ohio App. 403, 188 N.E.2d 625. In that case the Court of Appeals of Ohio reversed a lower court's decision and held that a village zoning ordinance changing single family residence property to one under which shopping centers were permitted was an abuse of discretion, void and of no legal effect. However, the decision of the Court of Appeals was reversed by the Supreme Court of Ohio at 175 Ohio St. 557, 197 N.E.2d 201, the Supreme Court of Ohio holding that such rezoning was a proper exercise of the legislative function and that judicial judgment would not be substituted for that legislative judgment in a case in which the matter in question was fairly debatable. As the court expressed itself:

'Even though the court, on the facts presented, might decide otherwise than did counsel, so long as the matter is reasonably debatable, the court has no authority to interfere. * * *'

And the court there found that the question as to whether the zoning regulations had a real or substantial relationship to public health, safety, morals or general welfare, is committed in the first instance to the judgment and discretion of the legislative body, the council.

Willott, supra, is in harmony with our decisions on the determination of whether zoning ordinances have a real or substantial relation to the public health, safety, morals or general welfare. See, Marshall v. City of Mobile, 250 Ala. 646, 35 So.2d 553; Leary v. Adams, 226 Ala. 472, 147 So. 391.

In a recent decision, Waters v. City of Birmingham, 282 Ala. 104, 209 So.2d 388, we stated:

'* * * if the adoption of the ordinance raises questions upon which reasonable differences may exist in view of all the circumstances, and the wisdom of the ordinance is fairly debatable, then the action of a municipal governing body in adopting the ordinance will not be deemed arbitrary, a court being unwilling under such circumstances to substitute its judgment for that of the municipal governing body acting in a legislative capacity. * * *'

Guided by these principles the question for decision here resolves itself into this, viz: Was the passage of Ordinance 945 by the City of Homewood an 'issue or matter' which was 'fairly debatable'?

The word 'debatable' means, 'Liable to be debated; disputable; subject to controversy or contention; open to question or dispute.' Webster's New International Dictionary, 2d Ed. (Unabridged). Judging from the record before us, the conclusion is inescapable that the 'issue or matter' (Ordinance 945) before the City of Homewood was a 'farily debatable' one.

The court below determined that the ordinance was not an illegal, arbitrary or capricious act of the City of Homewood nor was it invalid as an improper exercise of police power nor did it find the City to be without authority to zone subject property. Indulging the usual presumptions in favor of the findings of the court below, we are of...