Herfurth v. Gulf Shores Bd. of Zoning Adjustment

• Decision Date: 04 February 2022
• Docket Number: 2200636
• Parties: Caryn Herfurth and Priscilla G. Anderson v. Gulf Shores Board of Zoning Adjustment
• Court: Alabama Court of Civil Appeals

Caryn Herfurth and Priscilla G. Anderson
v.
Gulf Shores Board of Zoning Adjustment

No. 2200636

Alabama Court of Civil Appeals

February 4, 2022

Appeal from Baldwin Circuit Court (CV-20-900844)

EDWARDS, JUDGE

Caryn Herfurth and Priscilla G. Anderson appeal from a judgment entered by the Baldwin Circuit Court ("the trial court") granting an area

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variance to Mark Bradley.^[1] Herfurth and Anderson had appealed to the trial court from a decision of the Gulf Shores Board of Zoning Adjustment ("the board"), which likewise had granted Bradley an area variance.

Bradley purchased a vacant 50-foot by 60-foot parcel of property in Gulf Shores ("the Bradley property") some time after March 12, 2019, but before January 7, 2020. The Bradley property was zoned as "BT-3 (Medium-High Density Tourist Business District)," which allows a building to be used for single-family residential use as a matter of right, among other uses. The Bradley property was surrounded by properties that were also zoned BT-3, which included properties with buildings being used for residential purposes and for commercial purposes.

The size of the Bradley property was the result of a 1964 subdivision of a larger parcel of property into three parcels: the Bradley property; a parcel equal in size to the Bradley property that, at the time of the appeal

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to the trial court, was owned by David Swiger, who was using a building on that property as a walk-up deli; and a parcel twice the size of the Bradley property that was owned by Paul Lartigue and that contained a 1, 400-square-foot commercial duplex, one unit of which was rented as a wine bar and the other as a residence. Swiger's property was located south of the Bradley property, and Lartigue's property was located west of those properties. The Bradley property had no frontage but had street access via a 10-foot ingress-and-egress easement across Swiger's property, which had frontage on West Beach Boulevard; the easement was created as part of the 1964 subdivision of a larger parcel.

Anderson's property was a 50-foot by 120-foot parcel that abutted the Bradley property at its northwest corner and contained a 1, 400-square- foot residential duplex. Herfurth's property also was a 50-foot by 120-foot parcel, which was located north of the Bradley property and which contained a two-story house. The lot to the east of the Bradley property was a 100-foot by 240-foot parcel that was undeveloped but that could have been developed for either commercial or residential use.

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As to the BT-3 zoning requirements, the relevant Gulf Shores zoning ordinance includes a minimum lot-size requirement, setback requirements, and other requirements. Per that ordinance, the pertinent setback requirements for a residential building are a 30-foot rear setback, a 20-foot front setback, and 8-foot side setbacks. Based on the size and nature of the Bradley property, he could construct a residential building on the property without violating the setback requirements, provided that the building footprint was no larger than 10 feet by 34 feet. Bradley also could use the property for commercial purposes; commercial-building setback requirements were less restrictive than those for residential buildings.

When the 1964 subdivision occurred, the Bradley property included a 20-foot by 20-foot single-family residence located near the rear (north) property line. That residence was subsequently demolished after it was damaged during Hurricane Frederic in 1979. In 1984, an application for a setback variance was granted for a proposed single-family residence on the Bradley property, but no construction occurred and that approval for the variance lapsed. On March 12, 2019, a person interested in

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purchasing the Bradley property applied for multiple variances (front and rear setbacks, maximum-building coverage, and impervious coverage) relating to a proposed single-family residence on the Bradley property, but that person withdrew his application after the surrounding property owners objected and the board hesitated to grant the application. Bradley subsequently purchased the Bradley property, and he filed an application requesting a setback variance for a proposed two-story, five-bedroom residence with a 24-foot by 34-foot building footprint (816-square feet per story). Bradley requested a reduction in the rear-setback requirement from 30 feet to approximately 15 feet. On January 7, 2020, the board denied Bradley's first variance application. Bradley modified his plan for the property, and he filed a second variance application, which requested that the board approve a setback variance for a proposed two-story, four-bedroom residence with a 22-foot by 34-foot building footprint (748-square feet per story). Bradley's second variance application requested a reduction in the rear-setback requirement from 30 feet to 28 feet and in the front-setback requirement from 20 feet to 10 feet.

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On July 7, 2020, the board considered Bradley's second variance application at a public hearing, after which the board approved the variance. See Ala. Code 1975, § 11-52-80(d)(3). According to the minutes of that board meeting, "[o]ne person spoke in favor of the variance" and five neighbors "objected to the variance based on the house size vs the size of the lot, the magnitude of the variance request, and concerns about the house being rented and parking issues." The minutes also stated that Bradley noted he had "reduced the size of the home to appease neighbors' concerns."

Herfurth and Anderson filed a notice of appeal with the board. See Ala. Code 1975, § 11-52-81.^[2] On July 20, 2020, the notice of appeal was docketed as a complaint in the trial court, see Carter v. Prattville Bd. of Zoning Adjustment, 976 So.2d 459, 462 (Ala. Civ. App. 2007), and thereafter Herfurth and Anderson were listed as the plaintiffs and the board was listed as the defendant. Bradley was not made a party, and he

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did not seek to intervene in the appeal to the trial court. Compare Greater Washington Park Neighborhood Ass'n v. Board of Adjustment of City of Montgomery, 24 So.3d 443, 444-45 (Ala. Civ. App. 2009) ("The [applicant] Church subsequently intervened in the appeal" from the decision of the board of adjustment.). On December 31, 2020, the board filed with the trial court a certified transcript of the July 2020 board meeting, along with the exhibits that were submitted at that meeting. See § 11-52-81.

We note that § 11-52-81 authorizes an appeal to the circuit court from the decision of a board of adjustment and that "the action in such court shall be tried de novo." On appeal...