Lynnwood Property Owners Ass'n v. Lands Described in Complaint
| Decision Date | 26 May 1978 |
| Citation | 359 So.2d 357 |
| Parties | LYNNWOOD PROPERTY OWNERS ASSOCIATION, a non-profit corporation, et al. v. LANDS DESCRIBED IN COMPLAINT, Dr. Joe B. Ray, Lambert C. Mims, etc., et al. SC 2502. |
| Court | Alabama Supreme Court |
Fred W. Killion, Jr. and Stephen J. Flynn, Mobile, for appellants.
Robert L. Byrd, Jr., of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, Ray G. Riley, Jr. of McFadden, Riley & Parker, Mobile, for appellee, Dr. Joe B. Ray.
William H. Brigham, Mobile, for appellees, Lambert C. Mims, Gary A. Greenough, Robert B. Doyle, Jr., and The City of Mobile.
This appeal arises from a declaratory judgment holding that certain property in the City of Mobile was properly rezoned from residential to business use. We reverse and remand.
On January 27, 1975, Dr. Joe B. Ray, Appellee, filed an application with the Zoning Administrator of the Mobile Inspection Services Department to rezone certain land from R-1 (Single Family Residence) to B-1 (Buffer Business District) so that he could open medical offices on the premises. After conducting an investigation, the Administrator recommended that the application be denied, and sent this recommendation and the application to the Mobile Planning Commission.
The Planning Commission originally set a hearing for February 6, 1975, but this was postponed until March 6. After both sides presented evidence and arguments at the March 6 meeting, the Commission voted on the matter. With the Commission Chairman voting against approval, the vote ended in a 4-4 tie (1 member abstained). Following this disapproval of the application, the Commission advised Ray of his right to appeal. The application was not forwarded to the City Board of Commissioners at this time.
Thereafter, allegedly in contravention of its own by-laws, the Planning Commission reconsidered the application at its next monthly meeting (April 3, 1975) and voted unanimously for its approval. The motion to reconsider was made by Commissioner Greenough, who had previously voted for approval of the application. 1 Following this second vote, the application, together with the Planning Commission's recommendation, was forwarded to the Mobile City Board of Commissioners which, after notice and public hearings, also voted unanimously for approval. The relief sought by the declaratory judgment action which followed was denied.
Because of our views expressed herein, Appellants' contention that the Planning Commission and the City Board of Commissioners acted arbitrarily and illegally will not be considered. Therefore, a more complete recitation of the particular facts upon which the Commission's vote was based is inappropriate.
Lynnwood Property Owners Association, together with the other Appellants, contend that the Planning Commission violated its own regulations and by-laws in reconsidering Ray's application at the April 3 meeting. It asserts that the Commission thus deprived it of procedural due process of law.
Title 37, § 774, Code, 2 provides:
For the purpose of promoting health, safety, morals or the general welfare of the community, the legislative body of incorporated cities and towns is hereby empowered to regulate and restrict . . . the location and use of buildings, structures and land for trade, industry, residence or other purpose.
Section 778 provides:
The legislative body of such municipality shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established and enforced, and from time to time amended . . . and may adopt such ordinances as may be necessary to carry into effect and make effective the provisions of this article. . . .
Section 779 provides:
Such regulations, restrictions and boundaries, and ordinances passed under the authority of this article may from time to time be amended . . . . The provisions of section 778 of this title relative to public hearings and official notices shall apply equally to all changes and amendments.
Pursuant to the above-stated Code provisions and in compliance with § 780 and § 787, the City of Mobile created the Planning Commission. By § 789, the Commission was empowered to "adopt rules for transaction of business." Section 793 requires the affirmative votes of not less than six members of the Commission before an amendment to the zoning ordinance may be approved.
The zoning ordinance of the City of Mobile specifically provides the three methods in which any amendment to the ordinance is to be effected. Section IX, B, Amendment Procedure, provides, inter alia :
If an application is filed pursuant to the third type of initiatory procedure, as was done here, the Inspection Services Department shall investigate and make its recommendations to the Planning Commission. Mobile City Zoning Ordinance, VIII B, 2, and IX B, 3. Thereafter, the ordinance provides in part IV:
This procedure was used here. As stated, after the Inspection Services Department conducted its investigation and gave its recommendation, the Planning Commission conducted hearings on March 6 and disapproved the application. Therefore, it was not forwarded to the City Board of Commissioners. It is the reconsideration, which occurred on April 3, that Appellants contend is unjustified and illegal.
Mobile City Planning Commission By-laws, Section V, 3, provides:
Thus, by reconsidering Ray's application less than one month after its disapproval, and without proof of a change of circumstances, the Commission violated the above-stated by-laws. Because these by-laws were specifically authorized by the Code, they have the same force and effect as properly enacted statutes. See Tit. 37, §§ 774, 778, 779, 780, 787 and 789, Code. Furthermore, should the reconsideration be deemed an appeal, it likewise is unauthorized as appeals are to be heard twice yearly in January and in July. Mobile City Planning By-laws, § V, 5.
It cannot be denied that the City is authorized to amend its zoning ordinance. Tit. 37, § 774, et seq., Code; Shell Oil Co. v. Edwards, 263 Ala. 4, 81 So.2d 535 (1955). See also Ball v. Jones, 272 Ala. 305, 132 So.2d 120 (1961). Such amendments, however, must comply with both State and Federal constitutional guarantees. McQuillin, 8 Municipal Corporations, §§ 25.38 and 25.58; and 101 C.J.S. Zoning § 27. See also City of Birmingham v. Monk, 185 F.2d 859 (5th Cir. 1950); and Masters v. Pruce, 290 Ala. 56, 274 So.2d 33 (1973). Moreover, a zoning ordinance or amendment must be enacted pursuant to, and in substantial conformity with, the zoning statutes or enabling act authorizing it. Alabama Alcoholic Beverage Control Board v. City of Birmingham, 253 Ala. 402, 44 So.2d 593 (1950); Johnson v. City of Huntsville, 249 Ala. 36, 29 So.2d 342 (1947); Treadway v. City of Rockford, 24 Ill.2d 488, 182 N.E.2d 219 (1962); and Smart v. Lloyd, 370 S.W.2d 245 (Tex.Civ.App.1963). See also McQuillin, supra, at §§ 25.58, 25.67, 25.67a; and Rathkopf, The Law of Zoning and Planning, §§ 4.02, 10.01.
Though arising in a somewhat different context, we have previously held that a Planning Commission.
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