Greater Wash. Park Neigh. Assoc. v. Bd., of Adj. of City of Mont.

• Decision Date: 15 May 2009
• Docket Number: 2080336.
• Citation: 24 So.3d 443
• Parties: GREATER WASHINGTON PARK NEIGHBORHOOD ASSOCIATION v. BOARD OF ADJUSTMENT OF the CITY OF MONTGOMERY and Friendship Mission Church.
• Court: Alabama Court of Civil Appeals

24 So.3d 443

GREATER WASHINGTON PARK NEIGHBORHOOD ASSOCIATION v. BOARD OF ADJUSTMENT OF the CITY OF MONTGOMERY and Friendship Mission Church.

2080336.

Court of Civil Appeals of Alabama.

May 15, 2009.

Tiffany B. McCord, Montgomery, for appellant.

Wallace D. Mills, Montgomery, for appellee Board of Adjustment of the City of Montgomery.

J. Doyle Fuller, Montgomery, for appellee Friendship Mission Church.

BRYAN, Judge.

In 2003, Friendship Mission Church ("the Church") petitioned the Board of Adjustment of the City of Montgomery ("the Board") for a special exception to the zoning ordinance of the City of Montgomery ("the City"). The Church's application requested a special exception to build a "church/homeless shelter" on property ("the property") belonging to the Church in an M-1 (industrial) zoning district. At a meeting on January 16, 2003, the Board granted the special exception. The minutes of that meeting simply indicate that the Church requested a "special exception church/shelter" and that the Board granted that request. Thereafter, the Church constructed a building for use as a church and homeless shelter on the property. The record on appeal suggests that the Church had planned to build a 15,000-square-foot building on the property. However, the Church actually constructed a 5,137-square-foot building on the property.

In 2008, the Church petitioned the Board for approval of a "Revised Master Plan for [an] additional building" on the property, and the Board approved the Church's request. The Church intended to build the additional building for use as a shelter on the property, a use for which the Church was granted a special exception in 2003. A "development plan application" indicated that the Church plans to construct an additional 7,863-square-foot building on the property.

The Greater Washington Park Neighborhood Association ("the Association"), a group of homeowners living near the property, appealed the Board's 2008 decision to the Montgomery Circuit Court, pursuant to § 11-52-81, Ala.Code 1975.¹ The Church subsequently intervened in the appeal. The Church filed a motion to dismiss the appeal, asserting various grounds. The trial court held a hearing on the Church's motion, at which counsel for the parties presented oral arguments. Following the hearing, the trial court entered a judgment in favor of the Board and the Church. The judgment stated, in pertinent part:

"The decision by the Board to allow an exception to build the shelter was passed in 2003. Only a part of the shelter originally approved was erected at that time. Now the Church seeks to finish the shelter in accordance with the original exception. The City told the Church it must return to the Board for permission to finish the shelter.

"The Court disagrees. Having already approved the project once, the Board has no need to approve it again. The Court is unaware of, and has not been provided, any law that suggests that the Board's decision in 2003 expires after the passage of time or must be renewed periodically. Accordingly, the Church need only obtain a building permit to commence construction.

". . . In this instance, the Court believes that the decision of the Board was redundant because the decision to allow the shelter in 2003 was not appealed, and[, therefore, that decision] became legal. Further, even if the recent decision were reviewable, the Court does not find it to be arbitrary."

The Association timely appealed to this court.

On appeal, the Association argues that the trial court erred in concluding that the Board's 2008 decision was superfluous and by not fully addressing the merits of that decision. The Association notes that the issue the Church presented to the Board in 2008 was distinct from the issue the Church presented to the Board in 2003. In 2003, the Board granted a "special exception for a church/homeless shelter" on the property. In 2008, the Board approved a "Revised Master Plan for [an] additional building" on the property. Therefore, the Association contends, because the issues before the Board in 2003 and 2008 were distinct, the trial court erred in concluding that "[the Board, h]aving already approved the project once [in 2003, had] no need to approve it again [in 2008]." Certainly, there are distinctions between the issues presented to the Board in 2003 and the issues presented to the Board in 2008. However, the Association does not address whether, in light of the Board's scope of authority, there is a need for the Board to approve the plans for an additional building on the property or whether the Board even had the authority to address those plans at all. The Association seems to assume that the issue presented by the Church to the Board in 2008 was properly before the Board; of course, the trial court concluded otherwise. A discussion of the powers of the Board illustrates that the Association seems to misunderstand the Board's function.

"[T]he board of zoning adjustment sits as an administrative body performing a quasi-judicial function. [Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244 (1951)]. Accord, Ball v. Jones, 272 Ala. 305, 132 So.2d 120 (1961). And, since the board of adjustment derives its powers directly from the state legislature, such powers cannot be circumscribed, altered, or extended by the municipal governing body. Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244 (1951). Accord, Water Works Board v. Stephens, 262 Ala. 203, 78 So.2d 267 (195[5])."

Swann v. Board of Zoning Adjustment of Jefferson County, 459 So.2d 896, 899 (Ala. Civ.App.1984).

The Board is limited to the authority established in § 11-52-80(d), Ala.Code 1975:

"(d) The board of adjustment shall have the following powers:

"(1) To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this article or of any ordinance adopted pursuant thereto;

"(2) To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance; and

"(3) To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done."

(Emphasis added.)

Regarding special exceptions, our supreme court has stated:

"A special exception is a conditionally permitted use, that is, it is an enumerated use specified in the zoning ordinances that requires the approval of an administrative board or agency. A special exception `allows a property owner to put his property to a use which the regulations expressly permit under conditions specified in the zoning regulations themselves.' 101A C.J.S. Zoning & Land Planning § 229, p. 656 (1979). This contrasts with a `variance,' which requires a showing of unnecessary hardship and results from a request that the zoning authorities grant relief from the literal requirements of the zoning ordinances. Ex parte Chapman, 485 So.2d 1161 (Ala.1986)."

Ex parte Fairhope Bd. of Adjustment & Appeals, 567 So.2d 1353, 1355 (Ala.1990).

The language found in § 11-52-80(d)(2) concerning special exceptions is the same as the language contained in Section 7 of the Standard State Zoning Enabling Act. Julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use Planning and Development Regulation Law 200-01 (2003). "Under the Standard Act, before the board [of adjustment] can exercise [its] power, the [municipal] legislative body must list the uses to be treated as special. The board may issue a permit for only those uses listed and only if the conditions set forth in the ordinance are met." Id. at 201 (footnote omitted).

"The special [exception] process is designed to deal with uses that by their nature are difficult to fit within any use zone where they can...