Graham v. City of Huntsville

• Decision Date: 04 February 1981
• Citation: 398 So.2d 698
• Parties: Lucy Drake GRAHAM v. CITY OF HUNTSVILLE. Civ. 2534.
• Court: Alabama Court of Civil Appeals

Page 698

398 So.2d 698

Lucy Drake GRAHAM v. CITY OF HUNTSVILLE.

Civ. 2534.

Court of Civil Appeals of Alabama.

Feb. 4, 1981.

Rehearing Denied March 18, 1981.

Robert M. Shipman, Huntsville, for appellant.

Walter A. Record, III, Huntsville, for appellee.

BRADLEY, Judge.

This is an appeal from a summary judgment rendered against an applicant for a use variance to a zoning ordinance.

Lucy Drake Graham is the owner of several acres of land abutting Drake Avenue in Huntsville, Alabama. This property lies in a district which has been zoned as "Residence A-1." Only single family dwellings, churches, public facilities, and farms are allowed in such a district.

Mrs. Graham applied to the City of Huntsville for a permit to allow her to locate a house trailer on this property. The purpose was to house a watchman who would protect her and her property. She stated that threats had been made on her life. The request for the permit was denied and Mrs. Graham appealed to the Board of Zoning Adjustment of the City of Huntsville.

Mrs. Graham's request for a variance to permit her to locate a house trailer on her property, which was located in a district zoned "A-1 Residential," was not approved by the Board. She appealed to the Circuit Court of Madison County for a trial de novo as authorized by § 11-52-81, Code of Alabama 1975.

Prior to a trial on the merits, the City filed a motion for summary judgment. Accompanying the motion was a certified copy of the proceedings before the Board, appellant's deposition, and the affidavit of an official of the City Planning Commission. Mrs. Graham filed an answer to the motion and an affidavit in support thereof. After due consideration the trial court granted a summary judgment to the City. Mrs. Graham requested a rehearing but it was denied. She appeals to this court.

Mrs. Graham says here that the summary judgment was erroneous because there was at least a scintilla of evidence supporting her claim for a use variance to the City's zoning ordinance.

Rule 56, ARCP, provides that a summary judgment may be awarded

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The supreme court said in McGuire v. Wilson, Ala., 372 So.2d 1297 (1979) that:

The summary judgment standard embodied in Rule 56, ARCP, is conjunctive. There must not only be an absence of genuine issue as to material fact, but there must also be circumstances entitling the moving party to judgment as a matter of law.

If, under any conceivable set of circumstances, there is a scintilla of evidence by which the non-moving party may recover against the moving party according to a cognizable theory of law, a motion for summary judgment should not be granted in favor of the moving party. Harbour v. Colonial Fast Freight Lines, Inc., Ala., 336 So.2d 1100 (1976); see Whitehead v. Davison Oil Co., Ala., 352 So.2d 1339 (1977); Educators' Investment Corp. of Alabama v. White, Ala.Civ.App., 374 So.2d 905 (1979); ARCP 56, Committee Comments. Even if the facts alleged by the movant in support of his motion for summary judgment are uncontroverted, the motion must be denied unless the movant is entitled to such a judgment as a matter of law. Hudson Thompson, Inc. v. Leslie C. King Co., Ala., 361 So.2d 541 (1978).

After a careful examination of the record evidence and considering the inferences to be gleaned therefrom in a light most favorable to the City, we do not believe that the City was entitled to a judgment as a matter of law.

Section 11-52-80(d), Code of Alabama 1975 empowers a board of adjustment to grant a variance from the literal application of a zoning...