FORT MORGAN ASS'N v. BALDWIN CTY. COM'N

• Decision Date: 16 May 2003
• Citation: 890 So.2d 139
• Parties: FORT MORGAN CIVIC ASSOCIATION, INC., et al. v. BALDWIN COUNTY COMMISSION.
• Court: Alabama Court of Civil Appeals

890 So.2d 139

FORT MORGAN CIVIC ASSOCIATION, INC., et al. v. BALDWIN COUNTY COMMISSION.

2010659.

Court of Civil Appeals of Alabama.

May 16, 2003.

Certiorari Dismissed April 2, 2004.

Henry H. Caddell of Thiry & Caddell, Mobile; and John L. Lawler, Mobile, for appellants.

Robert A. Wills of Wills & Simon, Bay Minette, for appellee.

Bradley B. Rounsaville of Bradley Arant Rose & White, LLP, Birmingham, for amicus curiae Fort Morgan Paradise Joint Venture.

Mary Pons, Association of County Commissions of Alabama, Montgomery; and Ken Smith, Alabama League of Municipalities, Montgomery, for amici curiae Association of County Commissions of Alabama and Alabama League of Municipalities.

Alabama Supreme Court 1021469.

On Application for Rehearing

PITTMAN, Judge.

The opinion of January 10, 2003, is withdrawn, and the following is substituted therefor.

The Fort Morgan Civic Association, Inc., Tom Hodges, Bonnie P. Lowry, and Karen Riddle (collectively referred to as "the association") appeal from the trial court's judgment affirming the approval by the Baldwin County Commission ("the county commission") of a planned residential development ("PRD") to be developed by Fort Morgan Paradise Joint Venture ("Paradise").

Paradise owns two parcels of property on either side of a separate parcel of property owned by Gulf Highlands Development, LLC ("Gulf Highlands"). The western parcel owned by Paradise ("the western parcel") is 53.3 acres and has a very narrow beach front. Paradise also owns 25.66 acres containing a larger beach front and a private beach easement, making it more suitable for development ("the eastern parcel"). The northern boundary of all three parcels is Alabama Highway 180, also known as Dixie Graves Parkway or Fort Morgan Road.

At a meeting held on May 3, 2000, the Baldwin County Planning and Zoning Commission ("the planning commission") considered Paradise's application to rezone the eastern parcel and to establish a PRD. Under Article 23 of the Baldwin County zoning regulations, Paradise needed "3 contiguous acres or more" of land in order to establish its proposed PRD. Paradise sought to have the eastern parcel of land rezoned from a single-family district to a multifamily district. The proposed PRD encompassed the total acreage of both the eastern and the western parcels, 78.96 acres. The PRD was described in the minutes of the planning commission's meeting, in pertinent part, as follows:

"The proposed development includes two high rise towers, 12 single family lots and a commercial area. A total of 473 dwelling units are proposed. The applicant is proposing to develop two 20 story towers on the site with a total of 442 dwelling units. Twelve single family lots are proposed and 19 units are proposed within the commercial area. The commercial area is proposed as a `village center' and will be connected to the commercial development in the Beach Club. The applicant is proposing to set aside approximately 65 acres as common area and other open space. 11.67 acres are designated as common area and 53.3 acres as `areas not to be developed.'"

(C. 30.) The Beach Club is an existing resort development that is located to the east of the eastern parcel. All of the dwelling units in the PRD were to be constructed on the eastern parcel, with the western parcel to remain in its natural state. The 473 dwelling units were based upon the entire acreage in the proposed PRD; the western parcel was already zoned as a multifamily district and, if the eastern parcel were also rezoned as a multifamily district, Paradise could build 6 dwelling units per acre — or 473 units — in the PRD.

After considering Paradise's application and hearing statements in support of and in opposition to the PRD, including statements by members of the association, the planning commission approved Paradise's application subject to the grant of a conservation easement¹ on the western parcel to an organization acceptable to the county commission.

The PRD approved by the planning commission would allow Paradise to build 473 condominium units on the eastern parcel because of the planning commission's determination that the eastern and western parcels were contiguous. If not zoned in conjunction with the western parcel, the eastern parcel could be approved for only 154 dwelling units. The western parcel, if not zoned in conjunction with the eastern parcel, could be approved for over 300, but it is a less desirable development because of its narrow beach frontage. Therefore, Paradise proposed placing 473 units on the eastern parcel, and placing the western parcel in a "conservation easement." The majority of the 473 units would be in two 20-story high-rise condominiums located on the eastern parcel's beach front.

At or near the time that Paradise sought its PRD, Gulf Highlands sought a PRD to build high-rise condominium units on a portion of its property, with the remainder of its property to be placed in a conservation easement. The Gulf Highlands PRD would be next to Paradise's proposed high-rise condominiums.

The county commission considered Paradise's application for rezoning and for a PRD at a June 20, 2000, meeting. At that meeting, Kevin Cowper, who was, at that time, the planning director for the county commission, presented a recommendation by the planning commission's staff that the county commission grant Paradise's application for rezoning and for a PRD. The county commission also heard statements in support of and in opposition to the PRD, including statements by members of the association. At the conclusion of the hearing, the county commission adopted a resolution approving Paradise's application to rezone the eastern parcel to a multifamily district and approving the PRD, subject to certain conditions, including the establishment of a conservation easement on the western parcel.

On December 14, 2000, the association filed a complaint in the Baldwin County circuit court, seeking a writ of mandamus and injunctive relief against the county commission and alleging, in pertinent part, that

"the county commission in its decision arbitrarily disregarded and violated the requirements of its adopted zoning regulations by approving a development which will substantially exceed applicable maximum density requirements under the ordinance by arbitrarily and erroneously deeming two parcels [owned by Paradise] to be contiguous."

(C. 5.) On February 1, 2001, the county commission filed a response asserting the affirmative defenses of (1) failure to state a claim upon which relief could be granted; (2) laches; (3) estoppel; and (4) waiver. On May 21, 2001, the association filed an amended complaint adding a count seeking a declaratory judgment. On October 19, 2001, the county commission filed an amended answer asserting as an additional affirmative defense that the association lacked standing.

On October 22-23, 2001, the circuit court conducted a bench trial on the association's claims. On December 3, 2001, the circuit court entered an order denying the relief the association requested; that order contained the following findings:

"1. [C]ontiguous is defined in Article 2 Section 2.2 of the Baldwin County Zoning Regulations and therefore this court is to apply that definition.

"2. The purpose of a[PRD] is set forth in Article 23 of the Baldwin County Zoning Regulations.

"3. The [association] failed to present sufficient enough evidence to establish that the [county commission] exceeded its discretionary function in applying zoning regulations under Articles 2 and 23 of the Baldwin County Zoning Regulations.

"4. This court makes no finding as to whether the approving of the [PRD] is the best use of the land, but only finds that the [county commission] did not act arbitrarily and capriciously by approving the [PRD]."

(C. 47-48.) Thereafter, the association filed a postjudgment motion; the county commission filed an opposition to that motion on December 28, 2001.

On March 14, 2002, the circuit court entered an amended order again denying relief to the association. The amended order contained, in pertinent part, the following findings:

"1. Prior to the action by the [county commission] that was made the basis of this lawsuit, the real property in question had been zoned R-6, which allows for 6 units per acre of residential development.

"2. The proposed [PRD] by [Paradise] that has been commonly referred to as `Beach Club West' did not request a change in the zoning but requested that the 6 unit per acre allowance on the real property in issue be `pooled' into a multi-level building and/or multi-level buildings along the beach along the area commonly known as Fort Morgan Road.

"3. [Paradise] did not request that the [county commission] approve additional units but that the 6 unit per acre total be concentrated in one area with the remaining amount of the real property being left unimproved or undeveloped.

"4. In addition to the development known as `Beach Club West' the county commission considered a development project that was to be developed immediately west of this development known as `Gulf Highlands Development.' This development had also received a [PRD].

"5. Both [Paradise and Gulf Highlands] had received tentative approval from the Alabama Department of Environmental Management (ADEM) and the Fish and Wildlife Agency. Fish and Wildlife approved upon the recording of a conservation easement which would protect and prohibit any further development of the property in an effort to preserve and protect wildlife and its natural habitat....

"6. [Paradise and Gulf Highlands] presented to [the planning commission] and [the county commission] two PRDs that would include continuous beach between the development and conservation easements, as well as the fact that the two developments were adjoining each other. (The court notes and was aware that the developments were not joint PRDs and that they were presented and approved separately.

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