Ex Parte Baldwin County Planning And Zoning Comm'n.(in Re Baldwin County Planning And Zoning Comm'n v. Montrose Ecor Rouge

• Decision Date: 14 January 2011
• Docket Number: 1091042.
• Parties: Ex parte BALDWIN COUNTY PLANNING AND ZONING COMMISSION.(In re Baldwin County Planning and Zoning Commissionv.Montrose Ecor Rouge, L.L.C.andMontrose Ecor Rouge, L.L.C.v.Baldwin County Planning and Zoning Commission).
• Court: Alabama Supreme Court

68 So.3d 133

Ex parte BALDWIN COUNTY PLANNING AND ZONING COMMISSION.(In re Baldwin County Planning and Zoning Commission

v.Montrose Ecor Rouge, L.L.C.andMontrose Ecor Rouge, L.L.C.

v.Baldwin County Planning and Zoning Commission).

1091042.

Supreme Court of Alabama.

Oct. 22, 2010.Rehearing Denied Jan. 14, 2011.

J. Scott Barnet and E. Erich Bergdolt, Baldwin County Legal Department, Bay Minette; and Kendrick E. Webb, Frank E. Bankston, Jr., and Fred L. Clements, Jr., of Webb & Eley, P.C., Montgomery, for petitioner.Daniel G. Blackburn and Rebecca A. Gaines of Blackburn & Conner, P.C., Bay Minette, for respondent.WOODALL, Justice.

The Baldwin County Planning and Zoning Commission (“the Commission”) sought certiorari review of an opinion of the Court of Civil Appeals, upholding the trial court's issuance of a writ of mandamus sought by Montrose Ecor Rouge, L.L.C. (“Montrose”), to compel the Commission to grant Montrose's application for a proposed residential subdivision. We reverse and remand.

I. Factual and Procedural Background

Montrose owns a 7.98–acre parcel of land fronting on Mobile Bay. Montrose proposed to subdivide the parcel into 8 numbered lots, with lots 1 through 4 fronting Mobile Bay (“the bay lots”). Just behind the bay lots are lots 5 and 6, which are mainly composed of a cliff (“the cliff lots”). Just behind and above the cliff lots are lots 7 and 8. The parcel is subject to a rating scheme devised “[f]or purposes of flood insurance” by the Federal Emergency Management Agency (“FEMA”), reflecting the susceptibility of property to damage from “flooding and exposure to velocity-driven waves in a storm.” Baldwin County Planning & Zoning Comm'n v. Montrose Ecor Rouge, L.L.C., 68 So.3d 121, 124 (Ala.Civ.App.2010) (Per Bryan, J., with one judge concurring and three judges concurring in the result). More specifically,

“FEMA has rated a portion of the ... parcel as VE, has rated a portion of it as AE, and has rated a portion of it as X. The portion of the ... parcel that is rated VE is coastal land that is subject to a high risk of flooding and is also subject to velocity-driven waves in a storm. [The bay lots] and the portion of [the cliff lots] closest to the bay ... [are] rated VE. The portion of the ... parcel that is rated AE is subject to a high risk of flooding but is not subject to velocity-driven waves in a storm.... [P]ortions of [the cliff lots] [are] ... rated AE. The portion of the ... parcel that is rated X is neither subject to a high risk of flooding nor subject to velocity-driven waves in a storm.... [P]ortions of [the cliff lots] and lots 7 and 8 [are] ... rated X.

“The FEMA ratings for the developer's parcel are typical of the FEMA ratings for the eastern shore of Mobile Bay as a whole. FEMA regulations do not prohibit residential construction in areas rated VE or AE; however, they do impose special requirements on residential construction in such areas.”

Baldwin County, 68 So.3d at 124 (emphasis added).

In addition to these FEMA ratings, the parcel is subject to the Subdivision Regulations of Baldwin County (“the regulations”), which were adopted by the Baldwin County Commission pursuant to Ala.Code 1975, §§ 11–19–1 to –24, and Ala.Code 1975, §§ 11–24–1 to –7. The regulations “govern each and every subdivision of land in all unincorporated areas of Baldwin County.” Reg. § 2.2.

In November 2007, Montrose sought the Commission's preliminary-plat approval for the subdivision and development of the parcel for residential purposes. The plat contemplated the construction of a roadway, which would serve as the sole means of ingress and egress for the bay lots. Although the road was to be elevated according to the specifications set forth Reg. § 5.3.18,¹ non-native fill material was to be imported to the site to serve as the roadway bed.

On January 17, 2008, at a Commission meeting (“the meeting”), Montrose presented its plat for approval. At the meeting, Baldwin County permit engineer, Gregory Smith, reported to the commissioners that the plat satisfied the “black and white technical requirements” for submission. Nevertheless, there was subsequent discussion at the meeting regarding the elevations of the roadway and the bay lots, and the susceptibility of the bay lots to flooding, particularly during landfalling tropical cyclones. A number of residents of the neighborhood in which the parcel was located attended the meeting. One or two of them presented photographs showing that the bay lots or adjacent areas had been thoroughly inundated twice in 2005 by two tropical cyclones of widely disparate intensity. Ultimately, the Commission denied approval of the plat on the ground that the plat failed to conform to certain of the regulations, including Reg. §§ 1.2.2, 5.1, and 5.2.2, inasmuch as the bay lots lie “in an area prone to severe flooding.” Those sections provide:

§ 1.2.2: “Land to be subdivided shall be of such character that it can be used safely for building purposes without danger to health or peril from fire, flood, or other menace. Land shall not be subdivided until proper provision has been made for drainage, water, sewerage disposal and streets, and approval has been granted in accordance with the procedures prescribed in these regulations.”

__________

§ 5.1. ( Minimum Standards ): “The following planning and standards shall be complied with, and no higher standard may be required by the County Commission, except where, because of exceptional and unique conditions of topography, location, shape, size, drainage, wetlands or other physical features of the site, minimum standards specified herein would not reasonably protect or provide for public health, safety, or welfare. Any higher standard required shall be reasonable and shall be limited to the minimum additional improvements necessary to protect the public health, safety, or welfare.”

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§ 5.2.2 (Character of the Land): “Land which the ... Commission finds to be unsuitable for subdivision or development due to flooding, improper drainage, steep slopes, rock formations, adverse soil formations or topography, utility easements, or other features which will reasonably be harmful to the safety, health, and general welfare of the present or future inhabitants of the subdivision and/or its surrounding areas, shall not be subdivided or developed unless adequate methods are formulated by the applicant and approved by the ... Commission, upon recommendation of the County Engineer, or his/her designee, to solve the problems created by the unsuitable land conditions; otherwise such land shall be set aside for uses as shall not involve such a danger. It is therefore recommended that the applicant perform any necessary site investigations related to items such as soils, wetlands, flooding, drainage, and natural habitats prior to submitting a Preliminary Plat for review.

“....

“Land within any floodway shall not be platted for residential occupancy or building sites. Land outside the floodway but subject to flood may be platted for residential occupancy provided each lot contains a building site that may reasonably lend itself to construction of a minimum floor level of one (1) foot above base flood elevation, or for such other uses which will not increase the danger to health, life, and property. Fill may not be used to raise land in the floodway. In other areas subject to flood, fill may be used providing the proposed fill does not restrict the flow of water and unduly increase flood heights.”

(Emphasis added.)

Montrose subsequently petitioned the Baldwin Circuit Court for a writ of mandamus directing the Commission to vacate its denial; to declare §§ 1.2.2., 5.1, and 5.2.2 unenforceable because, Montrose argued, the provisions are unconstitutionally vague; and to approve the preliminary plat. It also sought compensatory damages for alleged “lost profits, lost opportunity for the sale of subdivided lots, a decrease in market value, increased interest charges, [and] additional engineering costs.” The trial court denied Montrose's request for damages, but, citing Smith v. City of Mobile, 374 So.2d 305 (Ala.1979), granted the petition in all other respects. The Commission appealed to the Court of Civil Appeals, and Montrose cross-appealed on the issue of damages.

In a plurality opinion authored by Judge Bryan and joined by Judge Pittman, the Court of Civil Appeals, also citing Smith v. City of Mobile, affirmed the trial court's issuance of the writ of mandamus. Judge Bryan's opinion held:

“The challenged portions of the Subdivision Regulations are not reasonably definite and fixed in their requirements; to the contrary, they accord the Commission the discretion to treat similarly situated landowners differently. Accordingly, we conclude that they are void because they are impermissibly vague. See Smith v. City of Mobile[, 374 So.2d 305 (Ala.1979) ].”

Baldwin County Planning & Zoning Comm'n, 68 So.3d at 131 (emphasis added). However, on the cross-appeal, the Court of Civil Appeals reversed the damages portion of the judgment and “remand[ed] the action for the circuit court to determine the amount of damages [Montrose] is entitled to recover.” Baldwin County Planning & Zoning Comm'n, 68 So.3d at 132. As its sole authority for Montrose's recovery of damages, the plurality cited Town of Gulf Shores v. Lamar Advertising of Mobile, Inc., 518 So.2d 1259 (Ala.1987). The Commission sought certiorari review of both aspects of the plurality opinion. We granted the petition to consider (1) whether the plurality opinion of the Court of Civil Appeals conflicts with our precedent concerning the standard of review in a case such as this, and (2) whether Lamar Advertising should be overruled.

II. Discussion

A. Standard of Review

The broad, substantive issue, as acknowledged by a plurality of the Court of Civil Appeals, is whether § 1.2.2, § 5.1, and § 5.2.2 are unconstitutionally vague.

“ ‘The legislature has given the [Baldwin...