Ex parte Horn

• Decision Date: 30 January 1998
• Citation: 718 So.2d 694
• Parties: Ex parte William Fred HORN, et al. (In re William Fred HORN, et al. v. CITY OF BIRMINGHAM; and CITY OF BIRMINGHAM v. William Fred HORN, et al.). 1961159.
• Court: Alabama Supreme Court

Page 694

718 So.2d 694

Ex parte William Fred HORN, et al. (In re William Fred HORN, et al. v. CITY OF BIRMINGHAM and CITY OF BIRMINGHAM v. William Fred HORN, et al.).

1961159.

Supreme Court of Alabama.

Jan. 30, 1998.

Rehearing Denied March 20, 1998.

W.L. Williams, Jr., Birmingham; and David A. Sullivan, Birmingham, for petitioners William Fred Horn, et al.

Demetrius Newton, city atty., Birmingham; Donald V. Watkins, Birmingham; Joe R. Whatley, Jr., and Peter H. Burke of Cooper, Mitch, Crawford, Kuykendall & Whatley, Birmingham; and Kenneth L. Thomas of Thomas, Means & Gillis, Birmingham, for respondents City of Birmingham and Mayor Richard Arrington, Jr.

PER CURIAM.

We granted certiorari review in order to determine whether the Court of Civil Appeals erred in affirming the trial court's ruling that the plaintiffs are not due an award of attorney fees under the "common benefit" exception to the "American rule." Although summaries of the factual background and procedural history of this case have been presented in Horn v. City of Birmingham, 648 So.2d 607 (Ala.Civ.App.1994) ("Horn I "), Horn v. City of Birmingham, 718 So.2d 691 (Ala.Civ.App.1997) ("Horn II "), and Battle v. City of Birmingham, 656 So.2d 344 (Ala.1995), a detailed discussion is necessary here.

Browning Ferris Industries of Alabama, Inc. ("BFI"), operates landfills for sanitary waste (hereinafter sometimes referred to as "garbage") in Blount and Walker Counties that are permitted to accept such waste from certain other Alabama counties, including Jefferson County. In 1991, BFI sought to construct a sanitary waste transfer station and recycling center in the City of Birmingham ("the City"). The sanitary waste transfer station was to be a facility where the many BFI trucks collecting garbage from areas of the City would come and dump their loads of garbage inside a large building; the garbage would then be processed by separating recyclable waste from nonrecyclable waste. The nonrecyclable waste would later be transferred to much larger trucks for transport to distant landfills, and the recyclable waste would be stored on-site for eventual sale.

In January 1991, an attorney representing BFI wrote a letter to Tom Magee, chief planner in the City's Department of Urban Planning, inquiring whether BFI's proposed sanitary waste transfer station and recycling center would require a "special use" zoning permit. The BFI letter stated, in relevant part:

"It is BFI's intention to purchase property near the University of Alabama [at] Birmingham. The facility that they wish to locate there is called a Transfer and Recycling Facility. The purpose of the operation is this:

"BFI trucks will deliver garbage and recyclable materials to the facility. A machine will then separate the garbage from the recyclable materials. All the recyclable materials will be placed in the facility and sold to the market as BFI chooses, and all the garbage will be compressed by a machine and then placed on 70 ton trucks. After this process is completed the 70 ton trucks will deliver the compressed garbage to landfill sites in Blount and Walker Counties.

"As you know, the zoning ordinance under the special exception criteria, authorize[s] a landfill in an M2 ['heavy industrial'] district with a special use permit. My question to you is whether a facility, such as the one described above, is deemed to be a landfill by the City of Birmingham."

The City's use regulations for a district zoned M-2, heavy industrial, state:

"A building or premises shall be used only for the following purposes:

"1. Any use permitted in the M-1 Light Industrial District; except, that no dwelling other than that for a resident watchman, custodian or caretaker employed on the premises shall be permitted.

"2. Any other use not in conflict with the ordinances of the City of Birmingham regulating nuisances; provided further that no building or occupancy permit shall be issued for any of the following uses until and unless the location of such use shall have been approved by the City Council after report by the Planning Commission in accordance with the procedure set forth in Article V, Section 3:

"a. Abattoir.

"b. Acid manufacture.

"c. Atomic power plant or reactor.

"d. Explosives manufacture or storage.

"e. Fat, grease, lard or tallow rendering or refining.

"f. Glue or size manufacture.

"g. Garbage, offal or dead animal reduction or dumping.

"h. Petroleum refining.

"i. Stockyard or slaughter of animals.

"j. Junkyards, salvage yards.

"k. Hazardous waste or toxic disposal.

"l. Medical and infectious materials disposed."

(Emphasis added.) The City's M-1 use regulation allows, among other things, "Manufacturing, fabricating, processing, or assembling uses which do not create an objectionable noise, vibration, smoke, dust, odor, heat or glare." (Emphasis added.)

Later that same month, Magee wrote a response to BFI, stating that it was his opinion that BFI did not need to obtain a special use permit to construct a sanitary waste transfer and recycling facility in an M-2 district:

"This letter is in response to your recent correspondence regarding Browning Ferris Industries' (BFI) intent to purchase property on the Southside of Birmingham for the purpose of constructing a Transfer and Recycling Facility. As per your letter, BFI trucks will deliver garbage and recyclable materials to this proposed facility, where the garbage and recyclable materials will be separated. All garbage will then be compressed and placed in 22 ton trucks which will haul the garbage to landfills in Blount and Walker Counties. [ ¹] It is my understanding that the garbage will be processed daily and will not remain on the premises overnight. Your letter also indicated that the recyclable materials will be stored in a separate area and will be sold to the market as needed. It is also my understanding that this entire process of transferring, processing, and recycling of garbage will be completely enclosed within a building, and no hazardous wastes or toxic materials will be processed or stored on the premises. Based on this understanding, this use would not be interpreted to be a sanitary landfill. In addition, the property you have indicated as being utilized for this proposed facility is located north of 6th Avenue, South near the Golden Flake Company and is zoned M-2 (Heavy Industrial District). This Zoning district would allow this facility as a permitted use. Please be advised, however, that no noxious odors, fumes, or noise can be associated with this facility."

(Emphasis added.) At the time Magee wrote this letter, the only knowledge or information he had regarding sanitary waste transfer stations was that presented in BFI's letter to him and in a videotape he had also received from BFI. Magee failed to conduct any further inquiry before providing BFI with his response approving construction of the facility in that M-2 district.

Thereafter, BFI obtained an option from the Golden Flake Company to purchase 10 acres of a 30-acre tract owned by Golden Flake, and BFI submitted for Golden Flake an application with the City to subdivide the property. In March 1992, BFI gave property owners immediately adjacent to the Golden Flake property notice of the intended subdivision of the property for development by BFI as a sanitary waste transfer and recycling station and the City approved subdivision of the property. BFI purchased the subdivided property from Golden Flake in March 1993 and in April BFI announced in a press release that it had obtained all the permits and approvals required by the City for it to construct a garbage transfer station in the Titusville area of Birmingham.

The residents of the primarily African-American Titusville neighborhood first learned of the BFI sanitary waste transfer station through the press release. They objected to the facility's being built adjacent to their neighborhood, and several residents obtained the assistance of attorneys W.L. Williams, Jr., and David A. Sullivan. These Titusville residents and their legal counsel attended the May 11, 1993, meeting of the Birmingham City Council and voiced to the council members their objections to the proposed BFI facility. Council members responded by saying that they had not previously been aware of the pending BFI facility and that they did not believe they could do anything to prevent the completion of its construction. A larger group of Titusville residents, along with residents of Walker County, attended the May 25, 1993, meeting of the city council. During that meeting, the Titusville residents and their counsel voiced continued opposition to the BFI sanitary waste transfer station. Attorney Williams stated that he believed that under the City's M-2 zoning classification a facility such as the one BFI planned to construct required approval by the city council, and he requested that the Department of Urban Planning review the zoning ordinance again. Michael Dobbins, who was director of the Department of Urban Planning and was Magee's supervisor, stated that he believed council approval was not necessary, because he believed the BFI sanitary waste transfer station conformed with the M-2 heavy industrial zoning classification. Dobbins admitted that he had not visited a BFI sanitary waste transfer facility, but stated that if the proposed BFI facility involved the creation of noxious odors, fumes, and/or noise then it would violate the City's nuisance ordinances. Mayor Richard Arrington made a report to the council and informed it that he believed he had no legal basis to deny any further permits to BFI. However, the city council passed a resolution asking the mayor to have the City do whatever was legally possible to prevent BFI from operating a sanitary waste transfer station at the site in question. The following day the City's attorney issued a memorandum to the city council stating that he believed the City could face a multi-million...