Moore v. Pettus, 3 Div. 649

• Decision Date: 21 January 1954
• Docket Number: 3 Div. 649
• Citation: 71 So.2d 814,260 Ala. 616
• Parties: MOORE v. PETTUS et al.
• Court: Alabama Supreme Court

Page 814

71 So.2d 814

260 Ala. 616

MOORE v. PETTUS et al.

3 Div. 649.

Supreme Court of Alabama.

Jan. 21, 1954.

Rehearing Denied April 22, 1954.

Files Crenshaw, Montgomery, for appellant.

Hill, Hill, Stovall & Carter, Montgomery, for appellees.

LAWSON, Justice.

By virtue of the comprehensive zoning ordinance of the City of Montgomery, which became effective on November 19, 1948, the property in the 1200 block of Cleveland Avenue was placed within an area designated as a Residence B District, in which the use of property is limited in the main to dwellings and apartments, but without limitation as to number of occupants.

At the time the zoning ordinance went into effect most of the buildings situated in that block were residences owned and occupied by colored people. Many of those residences were of modern construction and design and represented substantial investments.

On the east side of the street at 1257 Cleveland Avenue was situated a frame building which had been used for several years as a store and we will sometimes hereafter refer to that building as the store building.

Although the operation of a store is not in conformity with the provisions of the zoning ordinance applicable to Residence B districts, the store building could be used after the effective date of the ordinance as a store, a permitted nonconforming use, because such use existed at the time the ordinance became effective. But under the terms of the zoning ordinance, the store building could not be extended for such nonconforming use and no improvements could be made to the store building which would make it more permanent.

Mr. L. W. Moore, a white man, went into possession of the store building as a tenant some time in 1948. It does not appear whether he went into possession prior or subsequent to the effective date of the zoning ordinance, but that fact is not material here. Mr. Moore remained in possession as a tenant until some time in 1950 when he became the owner. From the time he went into possession in 1948 until about the middle of October, 1951, the store building remained in substantially the same condition as it was when the zoning ordinance became effective. During all of that period of time Mr. Moore operated a grocery store in the front part of the building and used the back of the building as a residence. His right to so use the building during that period of time is not questioned here.

On October 15, 1951, the store building was in a very dilapidated condition. The floor was insecure because of holes and rotten boards. The roof sagged. The side walls were weak and rotten in some places. The store building was in such a bad state of repair that the end of its usefulness appeared to be near at hand.

But on Monday, October 15, 1951, work was begun on the store building, which was completed on Tuesday, October 23, 1951. The front part of the building was extended six feet to the south so as to make the front the same width as the back of the building. A new floor was put in the building and a new roof was placed not only over the enlargement or extension, but also over at least a large part of the original structure. The west (front) and south sides of the building were veneered with brick. It is not controverted that these were permanent improvements which materially prolonged the existence of the nonconforming structure.

Dr. W. D. Pettus, a colored physician and surgeon, owns the two lots immediately north of Mr. Moore's store building. On the lot adjacent to the store building lot is a frame dwelling occupied by a tenant of Dr. Pettus. On the other lot is situated a residence in which Dr. Pettus and his wife live. Dr. Pettus purchased this property in 1935 or 1936 and has occupied it since that time. The store building now owned by Mr. Moore was in existence at the time Dr. Pettus purchased his property.

On March 24, 1952, Dr. Pettus and wife filed their bill in the circuit court of Montgomery County, in equity, against Mr. Moore averring in substance that the extension or enlargement of the store building and the permanent improvements made thereon were in direct violation of the zoning ordinance and prayed that the court 'issue its writ of mandatory injunction, ordering, directing and requiring the respondent to abate or correct such violation, and to remove said extension or enlargement of said structure, and to remove the brick veneering from the front and side of said structure, and to remove the new roof installed upon said structure, and to restore in all respects said structure to the same condition as prior to said renovation, enlargement and extension;' etc.

The respondent did not interpose demurrer to the bill. After respondent filed his answer the cause came on for hearing before the trial court, who saw and heard the witnesses.

On August 13, 1952, the trial court entered a decree granting relief substantially as prayed. From that decree the respondent below has appealed to this court.

As shown above, the store building is a nonconforming structure. The extension or enlargement of that structure and the alterations and improvements made thereon constituted a violation of the terms and provisions of the zoning ordinance in the absence of a valid order of the board of adjustment consenting to a variation from the restrictions prescribed for residence B districts.

The trial court found that the board of adjustment had not issued a valid order of variance permitting Mr. Moore to do such work on his store building. We agree. The evidence in support of such finding is substantially as hereafter set out.

In the early part of September, 1951, Mr. Moore became interested in enlarging and improving his store building. He made application to the building inspector of the city of Montgomery for a building permit. the zoning ordinance provides that its terms are to be enforced by the building inspector and it is made unlawful for anyone to commence the excavation for or the construction of any building or other structure or to commence the moving, alteration or repair until the building inspector has issued for such work a building permit, including a statement that the plans, specifications, and intended use of such structure in all respects conform with the provisions of the zoning ordinance. The building inspector did not issue a permit as requested, but referred Mr. Moore to the board of adjustment.

The zoning ordinance does not purport to set out the powers of the board of adjustment, but provides that the appointment, procedure, powers and actions of the board of adjustment are governed and controlled by the provisions of § 781, Title 37, Code 1940, as it may be amended. See Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244, 247. Among the powers conferred on the board of adjustment is the following: 'To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.' But the statute provides that there be a concurring vote of four of the five members of the board in order to effect any variation of the terms and provisions of the zoning ordinance. § 781, Title 37, Code 1940.

On September 7, 1951, Mr. Moore wrote a letter directed to the 'City Planning Board,' which properly came to the attention of the board of adjustment and which seems to be treated by all concerned as constituting an appeal to the board of adjustment by Mr. Moore from the action of the building inspector refusing a building permit. The letter of September 7, 1951, reads:

'With the permission of this Board I would like to put forth an application to enlarge a grocery business now located on the East side of Cleveland Avenue.

'The existing building is now 18' facing Cleveland Avenue. It is clearing the adjacent lot on the north side by 10 feet. I own lots 3 and 4 now fronting Cleveland Avenue by 93-34 feet. With the consent of this Board I would like to extend 13 feet toward the vacant lot now owned by me. That would clear the vacant lot by 5 feet.

'The reason for the proposed addition is the present building is not large enough to carry on the present business now existing. I would like the members of the Board to note that the present building is a one story frame building which looks bad to the community. If the permit is granted I will brick the front of the existing building and repair it. This would be a great improvement to this community. Any consideration given this matter will be greatly appreciated.'

The minutes of a meeting of the board of adjustment held on September 10, 1951, show that Mr. Moore's request or application as set out in his letter of September 7, 1951, was approved by the board of adjustment provided the secretary of that board 'obtain agreements from the owners of adjoining residences.' Such agreements could not be obtained. Dr. Pettus advised the secretary of the board in positive terms that he objected to the making of the proposed changes in the store building. And Scott Tolliver, who owned the adjoining residence to the south, testified that he did not give his consent, although offered the sum of $50 by Mr. Moore. Inasmuch as the consent of the owners of the adjoining residence could not be obtained, no building permit was issued based on the action taken by the board of adjustment on September 10, 1951.

There was a meeting of three members of the board of adjustment on October 8, 1951. Public notice of this meeting was not given nor was Dr. Pettus aware that such a meeting was to be held. See § 781, Title 37, Code 1940. The minutes of that meeting show the following:

'Nineth [sic] item on the agenda was request of Mr. L. W. Moore, 1257 Cleveland Ave., for reconsideration of application for permission to...