In re

• Court: Alabama Court of Civil Appeals
• Writing for the Court: PITTMAN
• Citation: In re , 109 So.3d 187 (Ala. Civ. App. 2012)
• Decision Date: 12 October 2012
• Docket Number: 2110169 and 2110170.
• Parties: CITY OF MOBILE and Mobile City Planning Commission v. Jeffrey GRIZZARD and Phil Gabriel. Roland Francis Properties, LLC v. Jeffrey Grizzard and Phil Gabriel.

109 So.3d 187

CITY OF MOBILE and Mobile City Planning Commission

v.Jeffrey GRIZZARD and Phil Gabriel.

Roland Francis Properties, LLC

v.Jeffrey Grizzard and Phil Gabriel.

2110169 and 2110170.

Court of Civil Appeals of Alabama.

Oct. 12, 2012.

John L. Lawler, Mobile, for appellants City of Mobile and Mobile City Planning Commission.

Douglas L. Anderson and Michael D. Strasavich of Burr & Forman LLP, Mobile, for appellant Roland Francis Properties, LLC.

Donald G. Beebe of The Atchison Firm, P.C., Mobile, for appellees.

PITTMAN, Judge.

In September 2010, Roland Francis Properties, LLC (“RFP”), applied to the Mobile City Planning Commission (“the Commission”) for approval of a Planned Unit Development (“PUD”) in order to build an apartment complex in Mobile. The Commission approved RFP's application in October 2010. Neighboring property owners, Jeffrey Grizzard and Phil Gabriel (“the PUD opponents”), appealed from the Commission's decision to the Mobile City Council, which upheld the Commission's action on November 3, 2010. On November 16, 2010, the PUD opponents filed in the Mobile Circuit Court a complaint seeking a judgment declaring that the Commission's approval of RFP's application was in violation of § 64–5, Mobile City Code, and requesting injunctive relief to halt the PUD.

The case came before the circuit court for a bench trial 10 months later, in September 2011. In the meantime, construction on the PUD project had begun in December 2010 and was more than two-thirds complete at the time of trial. On October 4, 2011, the circuit court entered a judgment voiding the Commission's approval of the PUD application on the ground that such approval violated § 64–5 and thereby denied the PUD opponents due process of law. In addition, the circuit court invalidated the construction permits that had been issued to RFP and issued a stop-work order.

On October 10, 2011, RFP moved the circuit court to issue an immediate stay of enforcement of its October 4, 2011, judgment. The City of Mobile and the Commission (“the municipal parties”) joined that motion. On November 3, 2011, RFP and the municipal parties filed separate appeals to the supreme court from the circuit court's judgment. When the circuit court denied their requests for a stay, RFP and the municipal parties sought a stay in the supreme court on November 9, 2011. The supreme court consolidated the appeals and transferred them, along with the motions for a stay, to this court pursuant to § 12–2–7(6), Ala.Code 1975, on November 10, 2011. On November 29, 2011, this court granted the motions for a stay pending further order of this court.

Standard of Review

“[T]he construction of a [municipal] ordinance is a question of law.” Burnham v. City of Mobile, 277 Ala. 659, 661, 174 So.2d 301, 302 (1965) (citing 8 McQuillin, The Law of Municipal Corporations § 25.71). “The trial court's interpretation of the provisions of ... an ordinance is a determination of law, which is not entitled to a presumption of correctness on appeal.” Studio 205, Inc. v. City of Brewton, 967 So.2d 86, 87 (Ala.2007) (citing Clark v. Houston Cnty. Comm'n, 507 So.2d 902, 903 (Ala.1987)).

Discussion

Section 64–5 of the Mobile Municipal Code deals with PUDs. Paragraph A sets out the purposes and objectives of a PUD:

“1. Purposes. Under the regulations prescribed by this chapter for the various districts, a separate building site is required for each building other than an accessory building. For the purpose of allowing and encouraging variety of design and flexibility of location for buildings comprising a planned unit development (PUD) under this section, the requirement for a separate building site for each building is waived and the land occupied by the planned unit development is considered to be the building site for the group of buildings as a whole.

“It is the further purpose of this section to encourage the unified development of tracts of land that are suitable in size, location, and character for the uses and buildings proposed. To that end, the application of the district regulations governing development on a lot-by-lot basis is modified for planned unit developments, hereinafter called PUDs, that meet the objectives and conform to the standards of this section.

“Although PUDs are most commonly multiple-family residential projects, such other building groups as shopping centers and industrial parks, as well as one-family residential projects using innovative building types and arrangements, may be designed and developed under this section.

“2. Objectives. In pursuit of these purposes, the objectives to be met by a PUD are as follows:

“a. Creative design. To encourage innovative and diversified design in building form and site development;

“b. Flexibility. To permit greater flexibility in the location and arrangement of buildings and uses than is generally possible under district regulations;

“c. Efficient land use. To encourage the most efficient and sustainable use of land, especially tracts in the inner part of the city that remain undeveloped or that are appropriate for redevelopment;

“d. Environment. To preserve and protect as urban amenities the natural features and characteristics of the land;

“e. Open space. To encourage the provision of common open space through efficient site design;

“f. Public services. To encourage optimum use of available public utilities, streets and community facilities.”

Paragraph B of § 64–5 sets out the modifications and limitations to which a PUD is subject. “Modifications” encompass matters such as permitted uses and residential building types within various zoning classifications, as well as building-site area and yard requirements. Under “Limitations” the following appears:

“2. Limitations. Planned unit developments shall be subject to the following limitations:

“a. Size of tract. The tract of land to be occupied by the PUD shall be of sufficient size to accommodate the proposed uses and buildings in a homogeneous and harmonious entity (as distinguished from typical lot-by-lot development).

“b. Public services. No PUD shall be approved unless the planning commission determines, upon advice of the appropriate authorities, that the water, sanitary and drainage facilities, access streets and fire protection are adequate to meet the demands of the PUD.”

(Emphasis added.) All parties agreed that Knollwood Drive, the access road leading to the PUD, was inadequate to meet the demands of the PUD. Despite the emphasized language in ¶ B.2.b. of § 64–5—that “[n]o PUD shall be approved unless the planning commission determines ... that the ... access streets ... are adequate to meet the demands of the PUD”—the Commission approved the PUD application on the condition that RFP make improvements to the access road, without which no certificate of occupancy would be issued. Deputy Director of City Planning Richard Olsen testified that, during his 24 years of employment with the City, it had been the practice of the Commission to approve PUD applications “subject to” certain conditions. That practice, Olsen said, had been based upon ¶ D.2.c. of § 64–5, which provides:

“ Action on development plan. Within a reasonable time, the planning commission shall approve, approve with modifications and/or conditions, or disapprove the development plan. If approval of the development plan stipulates modifications or conditions, such modifications or conditions shall be illustrated on the development plan prior to its submittal for permitting.”

(Emphasis added.) Further, Olsen said, the municipal parties had consistently interpreted the pertinent provisions of § 64–5 to allow the satisfaction of conditional items to “proceed at the same time as construction of the project itself,” rather than to require that conditional items be completed before construction of a proposed project. In fact, Olsen acknowledged that some items listed in ¶ B.2.b. as “public services,” such as fire protection, can only be accomplished contemporaneously with the project itself. RFP and the municipal parties contend that the PUD opponents' interpretation of ¶ B.2.b. ignores the financial reality that no developer would be willing to undertake the estimated $300,000 in improvements to the access road without first having a PUD approval in hand.

The PUD opponents argued in the circuit court and continue to maintain on appeal that, pursuant to ¶ B.2.b., necessary improvements to the access road were required to be made before the PUD application was approved and that the Commission exceeded its authority by conditionally approving the application when the access road was demonstrably inadequate.

We are therefore required to determine whether ¶ B.2.b., specifically the adequate-access-street provision of that paragraph, states a sine qua non requirement for approval of a PUD application or whether the adequate-access-street provision of ¶ B.2.b. can be the subject of an “approval with conditions” pursuant to ¶ D.2.c.

“City ordinances are subject to the same general rules of construction, as are acts of the Legislature. S & S Distrib. Co. v. Town of New Hope, 334 So.2d 905 (Ala.1976). In John Deere Co. v. Gamble, 523 So.2d 95, 99–100 (Ala.1988), [our supreme court], quoting Clark v. Houston County Comm'n, 507 So.2d 902, 903–04 (Ala.1987), set out the following general rules of statutory construction,which also apply to the construction of municipal ordinances:

“ ‘ “The fundamental rule of statutory construction is to ascertain and give effect to the intent of the [city council] in enacting the [ordinance]. Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala.1985); League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). If possible, the intent of the [city council] should be gathered from the language of the [ordinance] itself. Advertiser Co. v. Hobbie, supra;Morgan County Board of Education v. Alabama Public School & College Authority, 362 So.2d 850 (Ala.1978). If the [ordinance] is...