Episcopal Foundation of Jefferson County v. Williams

• Decision Date: 14 September 1967
• Docket Number: 6 Div. 321
• Citation: 202 So.2d 726,281 Ala. 363
• Parties: EPISCOPAL FOUNDATION OF JEFFERSON COUNTY et al. v. George B. WILLIAMS et al.
• Court: Alabama Supreme Court

Page 726

202 So.2d 726

281 Ala. 363

EPISCOPAL FOUNDATION OF JEFFERSON COUNTY et al. v. George B. WILLIAMS et al.

6 Div. 321.

Supreme Court of Alabama.

Sept. 14, 1967.

Wm. A. Thompson (Asst. City Atty.), and A. Key Foster, Jr., of Martin, Balch, Bingham, Hawthorne & Williams, Birmingham, for appellants.

John W. Williams, Jr., and Carlos E. Heaps, Birmingham, for appellees.

LIVINGSTON, Chief Justice.

Appellees filed their complaint in the Circuit Court of Jefferson County, in Equity, seeking, inter alia, a declaratory decree that a certain ordinance of the City of Birmingham constitutes spot zoning, and in effect condemns and confiscates the property of complainants without due process of law and without just compensation.

The trial court, after hearing the evidence ore tenus, subject to Act No. 101, Acts of Alabama 1943, p. 105, Title 7, Section 372(1), 1958 Recompiled Code of Alabama, entered a final decree declaring that the Zoning Ordinance of the City of Birmingham, 251--G, as it applies to Lot 1, according to the survey of Montclair Road Development as recorded in Map Book 72, page 57, in the Office of the Judge of Probate of Jefferson County, constitutes 'spot zoning, or zoning that is arbitrary, capricious, inequitable and discriminatory,' and is void.

Argued assignments of error challenge the trial court's decree in declaring that said ordinance constitutes 'spot zoning,' or zoning that is arbitrary, capricious, inequitable and discriminatory.

We here set out some of the essential and pertinent facts and contentions as shown by the pleading and evidence. Ordinance 251--G, passed by the City Council of the City of Birmingham on January 5, 1965, amended Zoning District Map of the City of Birmingham, as described in Section 2, Article III of Chapter, 57, General Code of the City of Birmingham of 1944, as amended. There is no question raised that the procedure in passage was faulty.

This Ordinance, 251--G, rezones or redistricts Lot 1, Montclair Road Development Survey, from R--3, Single Family District, to B--2, General Business District; also Lots 2 and 3 of the same Development Survey from R--3, Single Family District, to O--1, Office and Institutional District.

As we understand the record before us, the City Council in the adoption of said Ordinance 251--G amended the Comprehensive Zoning Map that was in effect.

The area described in Zoning Ordinance 251--G; namely, Lots 1, 2 and 3, Montclair Road Development, form an irregular triangle at the intersection of Montclair Road and Montevallo Road. Lot 1 of the development comprises the apex of this triangle and is the only lot involved in this litigation. The entire tract, Lots 1, 2 and 3, consists of 4.4 acres fronting mostly on Montclair Road. The other two lots, 2 and 3, lie adjacent to an extension of Elder Street that transgresses the area between Montclair Road and Montevallo Road; the extension connects these two roads. Lot 1 is contiguous to the east side of this connecting road, Elder Street, while the other two lots, 2 and 3, are on the west side. All of these lots, 1, 2 and 3, are owned by appellant, Episcopal Foundation of Jefferson County, a Corporation, and were so owned when Ordinance 251--G was passed.

Appellees are the separate owners of Lots 1, 2 and 3, Block 2, according to the amended survey of Crestline Gardens, 3rd Addition, recorded in Map 44, page 15, in the Probate Office of Jefferson County. These lots, on and before Ordinance 251--G was passed on January 5, 1965, were zoned R--3, Single Family District, under the zoning laws of the City of Birmingham, as was the area embraced in Lots 1, 2 and 3 owned by the Episcopal Foundation. Appellees on or before January 5, 1965, when Ordinance 251--G was passed, occupied residences on their property. Appellees' lots are adjacent to the south side of Montevallo Road, which is on the south side of the triangle, whereas Lots 1, 2 and 3, belonging to appellant, Episcopal Foundation, are adjacent to the north side of said Montevallo Road and to the south side of Montclair Road. In other words, Montevallo Road (the south road) separates appellees' lots from Episcopal Foundation Lot 1, here involved on this appeal.

It further appears that a vast area of land lying to the north of Montclair Road (the north road of the triangle) has been zoned and developed as a business area, the Eastwood Mall Shopping Center, to serve the inhabitants in that section of the city. This business area, under expansion, has a buffer zone of 100 feet in width between it and Montclair Road. There are also some service stations in the area that serve the public. The area of land lying south of Montevallo Road (of which appellees' lots are a part) is zoned and used exclusively for residential purposes.

We wish to note here that this appeal is not concerned with the fact, as the evidence shows, that appellant Foundation has bargained to sell Lots 1, 2 and 3 of the Development to a major oil company for erection of a service station; and that said oil company has released Lots 2 and 3 from its contract of purchase, so that it can be sold for the erection of an office building and a church thereon. Considerable evidence was adduced as to the effect a service station on Lot 1 would have upon appellees' property and comfort.

Our observation in Shell Oil Company v. Edwards, 263 Ala. 4, 81 So.2d 535, 'The effect of the city ordinance is not to permit a service station to be operated on a lot in Block 5 as indicated, but to enact that the city zoning system will not prohibit that to be done on the proposed lot' has application here. The effect of Ordinance 251--G is not to permit a service station to be erected on Lot 1 of appellant Foundation, but to enact that the city zoning system will not prohibit that to be done on said lot. The oil company...