Jefferson County v. City of Birmingham

• Decision Date: 04 October 1951
• Docket Number: 6 Div. 276
• Citation: 55 So.2d 196,256 Ala. 436
• Parties: JEFFERSON COUNTY v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

Page 196

55 So.2d 196

256 Ala. 436

JEFFERSON COUNTY v. CITY OF BIRMINGHAM.

6 Div. 276.

Supreme Court of Alabama.

Oct. 4, 1951.

Rehearing Denied Nov. 23, 1951.

John S. Foster and Maurice F. Bishop, Birmingham, for appellant.

Mayer U. Newfield, Birmingham, for appellee.

BROWN, Justice.

This is an appeal from a final decree of the circuit court in equity denying the contentions of Jefferson County, a body corporate, that it had a right to construct a 40 million gallon per day activated sludge type sewage treatment plant within a B Residence District established by a comprehensive zoning ordinance adopted prior to 1944 and embodied in the Code of the City of Birmingham adopted and promulgated in 1944 of which the courts take judicial notice.

Section 1602 of the General City Code provides:

'In a 'B' residence district, land may be used and buildings or structures may be erected, altered or used, only for the following uses:

'(1) Any use permitted in an 'A' residence district.

'(2) Tow-family dwelling.

'(3) Multiple dwelling.

'(4) Hotel or apartment hotel.

'(5) Hospital, other than a hospital for persons suffering from insanity or from diseases such as are commonly isolated in a separate building.

'(6) Public or semi-public institution, educational or charitable (not including a jail, reformatory or other correctional institution).

'(7) Fraternity house, sorority house or dormitory.

'(8) Clubhouse, (not including a club, the chief activity of which is a service customarily carried on as a business).

'(9) Lodging house or boarding house.

'(10) Electric substation without rotary machinery or gas regulating station.

'(11) Accessory uses, incident to any of the principal uses above listed and not involving the conduct of a business.'

Accessory uses within the meaning of subsection (11) of § 1602 of the General City Code of the City of Birmingham above set forth as defined by § 1603 of the General City Code of the City of Birmingham are as follows:

'In either an 'A' or 'B' residence district, accessory uses shall be:

'(1) Uses customarily incident to the principal uses listed as permitted. They shall be understood to include, among other things, an office such as that of a physician, dentist, musician, artist or other professional person, when located within or directly attached to his dwelling, which is used primarily as a dwelling, and home occupations such as dressmaking or millinery, engaged in by persons of the immediate family within their own dwellings.

'(2) Quarters for servants employed on the premises. Such quarters may be located either within the principal dwelling or in a separate building on the same lot and not less than sixty feet from the front lot line.

'(3) Private garage, located not less than sixty feet from the front lot line, if a separate building, or in a suitable room within or attached to the dwelling.

'(4) Private stable, located not less than eighty feet from the front lot line.

'(5) A sign or signboard not exceeding eight square feet in area, appertaining to the lease or sale of the premises.

'(6) A name plate not exceeding two square feet in area.

'(7) A sign or bulletin board, not exceeding twelve square feet in area, so placed as not to interfere with front yard requirements nor obstruct the view across the corner of intersection streets, and erected upon the premises of a church or similar institution for the purpose of displaying the name and activities thereof or the services therein provided.

'(8) A fence, hedge or enclosure wall; provided, that:

'(a) a solid fence or wall shall not exceed a height of six and one-half feet; and a hedge, solid fence or wall in the front yard, of a corner lot shall not exceed a height of three feet.

'(b) an ornamental fence exceeding six and one-half feet in height shall have a ratio or solid portion to open portion not in excess of one to four.

'(c) no fence, fence wall or fence hedge situated upon any portion of any lot or lot line between any front building line established by this chapter and the line of the street to the front thereof, shall exceed a height of four feet.'

The proceedings were instituted by Jefferson County in the circuit court in equity by petition which alleges:

'The complainant claims and contends that said Section 1602 of the General City Code of the City of Birmingham does not prohibit, or apply to, or would not prohibit or apply to, the proposed sewage disposal plant. The complainant so contends for the separate and several reasons as follows:

'(1) The construction and operation of the proposed sewage disposal plant, being for the purpose of disposing of sewage from dwellings, is an accessory use, permitted and authorized by and under Subsection (11) of said Section 1602 and by and under Subsection (1) of Section 1603 of the General City Code of the City of Birmingham (herein above set out) * * *.'

The petition further alleges:

'(2) In constructing and operating the proposed sewage disposal plant, the complainant would be engaged in a governmental function; and said Section 1602 of the General City Code does not apply to buildings or structures constructed or operated by the complainant County in its governmental capacity, or when it is engaged in a governmental function.

'(3) If said Section 1602 of the General City Code of the City of Birmingham be construed to apply to a sewage disposal plant constructed or operated by the complainant County pursuant to Amendment LXXIII of the Constitution of Alabama of 1901, then said Section 1602 is unconstitutional and void, as being in conflict with, and in violation of, said Amendment LXXIII.'

The petitioner, appellant, also contends that if the zoning ordinance is construed to prohibit the location, construction and operation of said sewage disposal plant within said B Residential District, it violates the provisions of Act No. 619, Acts of 1949, p. 954 et seq., Code 1940, Tit. 62, § 303(203a) et seq., and is, therefore, unconstitutional and void.

The petition alleges that the complainant does not now own the site and in order to construct and operate upon the site selected said proposed sewage disposal plant, it would be necessary that complainant acquire the site by purchase or condemnation (as to which no steps have been taken); that the acquisition of such a site will entail the expenditure of large sums of public funds and in the event the complainant should acquire the site and it should then be held that said Section 1602 of the General City Code of the City of Birmingham applies to and prohibits the construction and operation of a sewage disposal plant on the site, there would result an enormous loss to the public as a consequence of the complainant County not being permitted to use the site for that purpose.

The petition prays that upon final hearing the court will render a declaratory judgment holding, ordering, adjudging and decreeing that Section 1602 of the General City Code of the City of Birmingham does not apply to or prohibit, and would not apply to or prohibit, the construction and erection by the complainant of the proposed sewage disposal plant upon the land bounded on the West by Avenue F, Pratt City, on the East by Avenue I, Pratt City, on the South by Village Creek, and on the North by Eighth Street, Pratt City.

The petition also prays for an injunction enjoining the City of Birmingham, prohibiting, restraining and enjoining the said City of Birmingham, its officers, agents and employees, from applying, or attempting to apply, or enforcing or attempting to enforce, said Section 1602 of the General City Code of the City of Birmingham as against the complainant, Jefferson County, Alabama, or its officers, contractors, servants, agents or employees with respect to the construction or operation of the sewage disposal plant upon the land described above.

The defendant, City of Birmingham, filed an answer admitting certain averments of the petition, numbered 1, 2, 3 and part of 4 and avers that the 'determination by the County Commission that the selected site is 'the most practicable and economical site for the construction of said sewage disposal plant' was erroneous, wrong and based upon an inadequate consideration of, or a failure to consider, factors vital and relevant to such determination' and sets up the provisions of the ordinance embodied in Section 1643 creating a Board of Adjustment empowered to hear and determine appeals from orders requiring determination made by the administrative officers in the enforcement of the City's Zoning Ordinance and sets up the provisions of the zoning ordinance in denial of complainant's contention that the City may select and construct such disposal plant in a B Residential District.

The only interest which the petition shows that the appellant has in said site is that its engineers have considered five (5) different sites upon which it has been suggested that such disposal plant be constructed, all of which were excluded, and the engineering department...