Hudson-Thompson, Inc. v. Leslie C. King Co., Inc., HUDSON-THOMPSO
| Decision Date | 18 August 1978 |
| Docket Number | HUDSON-THOMPSO,INC |
| Citation | 361 So.2d 541 |
| Parties | , a corporation v. The LESLIE C. KING COMPANY, INC. SC 2786. |
| Court | Alabama Supreme Court |
Philip Dale Segrest, Montgomery, for appellant.
George White, Gadsden, and Fred D. Gray, Tuskegee, for appellee.
Hudson-Thompson, Inc., appellant, brought an action to permanently enjoin The Leslie C. King Company, Inc., appellee, its lessee, C & P Vic's, Inc., and its sub-lessee, John A. Walker, from conducting a retail business without complying with the zoning laws of the City of Tuskegee.
Appellant alleges that the defendants intended to establish a retail business without providing off-street parking as required by a Tuskegee zoning ordinance. It further alleges that this is likely to cause prospective customers of the defendants to use parking spaces provided by appellant for its customers. The trial court granted summary judgment for the appellee and directed the entry of a final judgment upon an express determination that there was no just reason for delay. Rule 54(b) ARCP. We reverse.
The general rule is that a court of equity has jurisdiction to enjoin the violation of a zoning ordinance at the insistence of a private citizen who shows special damage by way of impairment of value or otherwise. Moore v. Pettus, 260 Ala. 616, 71 So.2d 814 (1954).
Summary judgment was granted on the basis of the pleadings, affidavits and brief and argument of counsel. For purposes of ruling on a motion for summary judgment, uncontradicted facts alleged in the pleadings and affidavits are taken as true. Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975). Even if the facts are undisputed, the motion should not be granted unless the moving party is entitled to judgment as a matter of law. Rule 56(c) ARCP.
Appellant owns and operates a retail grocery and supermarket in Tuskegee. When the supermarket opened for business, a vacant warehouse owned by the appellee was located directly across the street. The appellee leased the building and land to C & P Vic's, Inc. Appellant instituted the present action claiming that C & P Vic's intended to operate a retail business establishment on the premises in violation of the zoning laws.
The retail establishment never opened. C & P Vic's sublet the premises to John A. Walker. Appellant then added Walker as a party defendant to the suit.
In support of its motion for summary judgment, appellee offered the affidavit of the building and codes inspector of Tuskegee. In essence, it states that remodeling or repairs made on the building were not "alterations" for purposes of the zoning laws which deal with off-street parking requirements. The affidavit is not contradicted by anything the appellant offered in opposition to the motion for summary judgment.
However, the affidavit of Glenn Holmes, manager of appellant's supermarket, is also uncontradicted. It states that the vacant warehouse underwent alterations which Holmes discovered were done for the purpose of opening a retail store. The retail store never opened but the building has been used as a skating rink and a private club, where bingo is played and alcoholic beverages are served. Also, the parking area which is provided is unpaved.
Appellee argues that the issue is whether the building in question had been altered. Appellant argues that the issue is whether the trial court correctly interpreted the city ordinance in that it failed to consider changes in the "Use" of the building. We agree with the appellants' statement of the issue.
The concept of "use" is fundamental to most, if not all, zoning laws and their operation. See Rathkopf, The Law of...
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Ryan's Family Steak Houses, Inc. v. Regelin
...for summary judgment, uncontradicted facts alleged in the pleadings and affidavits are taken as true." Hudson-Thompson, Inc. v. Leslie C. King Co., 361 So.2d 541, 542 (Ala.1978) (emphasis added); Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975). Ryan's' motion to dismiss and p......
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L.K.D.H. v. Planned Parenthood of Alabama
...law under the pleadings and undisputed evidence presented and under the rationale espoused in Elliott. See Hudson-Thompson, Inc. v. Leslie C. King Co., 361 So.2d 541, 542 (Ala.1978) ("Even if the facts are undisputed, the motion should not be granted unless the moving party is entitled to j......
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Duncan, In re
...V.S.A. § 4408(b)(1) (municipality may control changes of nonconforming uses to another nonconforming use); Hudson- Thompson, Inc. v. Leslie C. King Co., 361 So.2d 541, 543 (Ala.1978) (ordinance requires that off-street parking requirements be met whenever change of use occurs). On the other......
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Havelin v. Poole Truck Lines, Inc.
...No. 141. Therefore, our inquiry turns to whether the defendant was entitled to judgment as a matter of law. Hudson-Thompson, Inc. v. Leslie C. King Co., 361 So.2d 541 (Ala.1978). An employee's right to recover benefits under our Workmen's Compensation Law depends primarily upon the employee......