Karagan v. City of Mobile

Decision Date24 September 1982
Citation420 So.2d 57
PartiesPhillip P. KARAGAN v. CITY OF MOBILE, a municipal corporation, and Mobile City Planning Commission, an appointed agency of the City of Mobile, Alabama, separately and severally. 81-590.
CourtAlabama Supreme Court

Phillip P. Karagan, Mobile, pro se.

James H. Lackey, Mobile, for appellees.

JONES, Justice.

Appellant Phillip P. Karagan initiated this cause on December 11, 1981, seeking issuance of an alternative writ of mandamus directed to the City of Mobile, Alabama, and the Mobile City Planning Commission, commanding them to appear and show cause why a peremptory writ of mandamus should not be issued ordering and compelling both the City and its Planning Commission to rezone certain property owned by Karagan in Mobile, Alabama, from Residence-Agriculture District to Two-Family Residence District. 1 Along with his original petition, Karagan filed a number of exhibits, including an application for amendment to zoning ordinance, and an excerpt from a public hearing of the Planning Commission on June 4, 1981. On February 12, 1982, defendants filed a motion to dismiss Plaintiff's cause for its alleged failure to state a claim upon which relief might be granted. On March 10, 1982, Defendants' motion was granted. From this final order of dismissal, Karagan appeals.

We reverse.

Phillip P. Karagan is the owner of a 23.5-acre parcel of realty situated on Howells Ferry Road and Colonial Lane in the City of Mobile, Alabama. On or about May 15, 1981, Karagan submitted to the Mobile City Planning Commission an application requesting that his property be rezoned from Residence-Agriculture District (R-A) to Two-Family Residence District (R-2).

On June 4, 1981, the Mobile City Planning Commission held a public hearing as required by the zoning ordinance of the City of Mobile. At this time, Karagan testified as to the alleged propriety of his proposed development. 2 Additionally, Karagan submitted a report of Courtney and Morris Appraisals, Inc., to the effect that the project in question would not negatively influence property values in the area, and that such rezoning would be appropriate. At this same hearing, a petition signed by some 69 persons opposing such rezoning was also presented to and accepted by the Commission.

Subsequently, the Planning Commission voted 3 to recommend denial of Karagan's zoning amendment, citing as grounds therefor: (1) a development of the density proposed should be located on a major street or at least a secondary street; and (2) the proposed development would be out of character with the neighboring single-family residential areas.

Thereafter, the report of the Planning Commission was transmitted to the Mobile Board of Commissioners, which took no action within 30 days from its receipt thereof, thereby denying Karagan's application to rezone.

Appellate review of an order granting a motion to dismiss in the context of a petition for mandamus, seeking to test the propriety of a city's legislative function relating to zoning, presents conflicting legal presumptions and standards: (1) Rarely should motions to dismiss be granted, and then only when it appears on the face of the petition that the facts alleged do not entitle the petitioner to relief. Alorna Coat Corporation, Inc. v. Behr, 408 So.2d 496 (Ala.1981); (2) While the writ of mandamus, under the appropriate circumstances, is the proper extraordinary remedy to review discretionary municipal decisions, Foshee v. State, 210 Ala. 155, 97 So. 565 (1923), it is grantable only where petitioner shows a clear, specific legal right, Pritchett v. Nathan Rodgers Construction and Realty Corp., 379 So.2d 545 (Ala.1979); and (3) In the absence of fraud, a...

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55 cases
  • McInnish v. Bennett
    • United States
    • Alabama Supreme Court
    • March 21, 2014
    ...whether the plaintiff will ultimately prevail, only whether he has stated a claim under which he may possibly prevail. Karagan v. City of Mobile, 420 So.2d 57 (Ala.1982).”Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985). “[I]f under a provable set of facts, upon any cognizable theory of ......
  • D.A.R. v. R.E.L.
    • United States
    • Alabama Supreme Court
    • September 7, 2018
    ...whether the plaintiff will ultimately prevail, only whether he has stated a claim under which he may possibly prevail. Karagan v. City of Mobile, 420 So.2d 57 (Ala. 1982).’ " Patton v. Black, 646 So.2d 8, 9–10 (Ala. 1994) (emphasis omitted). III. Analysis D.A.R. argues that the trial court ......
  • Thomas v. Williams
    • United States
    • Alabama Court of Civil Appeals
    • November 21, 2008
    ...whether the plaintiff will ultimately prevail, only whether he has stated a claim under which he may possibly prevail. Karagan v. City of Mobile, 420 So.2d 57 (Ala.1982)." "`Fontenot v. Bramlett, 470 So.2d 669, 671 Fogarty v. Parker, Poe, Adams & Bernstein, L.L.P., 961 So.2d 784, 787-88 (Al......
  • Boykin v. Arthur Andersen & Co.
    • United States
    • Alabama Supreme Court
    • February 25, 1994
    ...whether the plaintiff will ultimately prevail, only whether he has stated a claim under which he may possibly prevail. Karagan v. City of Mobile, 420 So.2d 57 (Ala.1982).' 575 So.2d at 1063, quoting from Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala. 1985). (Emphasis in original.) The trial......
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