Nelson v. Donaldson

• Decision Date: 25 January 1951
• Docket Number: 3 Div. 576
• Citation: 50 So.2d 244,255 Ala. 76
• Parties: NELSON et al. v. DONALDSON.
• Court: Alabama Supreme Court

Page 244

50 So.2d 244

255 Ala. 76

NELSON et al. v. DONALDSON.

3 Div. 576.

Supreme Court of Alabama.

Jan. 25, 1951.

Jack Crenshaw, of Montgomery, for appellants.

Hill, Hill, Stovall & Carter and Rives & Godbold, all of Montgomery, for appellee.

LAWSON, Justice.

This is an appeal from a judgment of the circuit court of Montgomery County upholding an order of the Board of Adjustment of the City of Montgomery whereby that board ordered the City Building Inspector to issue a building permit to C. T. Donaldson, the appellee here.

In 1948 the City of Montgomery enacted a zoning ordinance, which became effective on November 19, 1948. This ordinance was enacted and adopted in conformity with Title 37, Chapter 16, §§ 774-785, inclusive, of the 1940 Code of Alabama. Under this ordinance the City of Montgomery is divided into a number of districts and the use of property located in the various districts is prescribed. As to residence A-1 districts, the use is limited to single family dwellings, with some few additional uses, such as churches, public libraries, public parks, accessory structures, etc. Neither dwellings for two families nor apartment houses are permitted in residence A-1 districts. An apartment house is defined as a building containing three or more family dwelling units.

The ordinance provides that 'except as otherwise provided, no structure or land shall be used hereafter and no structure or part thereof shall be erected, altered or moved unless in conformity with the regulations herein specified for the district in which it is located.' However, with exceptions not here pertinent, any structure or use existing or under construction at the time the ordinance was enacted, or at the time it is changed by amendment, is permitted to continue, even though such structure or use is not in conformity with the provisions of the ordinance. But no nonconforming use or structure can be extended unless such extension conforms with the provisions of the ordinance as to the district in which it is located.

The ordinance provides that its terms are to be enforced by the building inspector of the city and it is made unlawful for anyone to commence the excavation for or the construction of any building or other structure until the building inspector of the city 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 ordinance.

The ordinance further provides for the establishment of a board of adjustment. It 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. Since the board of adjustment is provided for in the ordinance, its powers stem directly from the statute and may not be circumscribed, altered or extended by the municipal governing body. Under these circumstances, the inclusion in the zoning ordinance of a word-for-word recital of the statutory powers of the board would be superfluous. Duffcon Concrete Products, Inc., v. Borough of Cresskill, 1 N.J. 509, 64 A.2d 347, 9 A.L.R.2d 678.

The powers of the board of adjustment, as enumerated in § 781, Title 37, supra, are in pertinent part as follows: '* * * To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this article or of any ordinance adopted pursuant thereto. To hear and decide special exceptions to the terms of the terms (sic) of the ordinance upon which such board is required to pass under such ordinance. 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. * * *' (Emphasis supplied.)

In exercising such powers, the board of adjustment may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make such order, requirement, decision, or determination as ought to be made, and to that end has all the powers of the officer from whom the appeal is taken. § 781, Title 37, Code 1940.

By § 783, Title 37, Code 1940, it is provided: 'Any party aggrieved by any final judgment or decision of such board of zoning adjustment, may within fifteen days thereafter appeal therefrom to the circuit court or court of like jurisdiction, by filing with such board a written notice of appeal specifying the judgment or decision from which appeal is taken. In case of such appeal such board shall cause a transcript of the proceedings in the cause to be certified to the court to which the appeal is taken and the cause in such court be tried de novo.' (Emphasis supplied.)

Shortly prior to February 11, 1950, the appellee, Donaldson, made application to the city building inspector for a permit to build an apartment house on the front of a lot owned by him at 709 Federal Drive, which is in a residence A-1 district, wherein the construction of an apartment house is prohibited. The permit was not issued. On February 11, 1950, Donaldson took an appeal to the board of adjustment. On February 25th the board of adjustment entered an order granting a variance to Donaldson and ordered that a permit be issued to him to construct the apartment house.

Certain persons owning property in the vicinity of 709 Federal Drive appealed to the circuit court of Montgomery County. The cause was tried de novo in the circuit court on or about March 21, 1950, and a judgment was entered by that court affirming the order of the board of adjustment and ordering that a permit be issued to Donaldson to construct the apartment house, on the ground that under the evidence he was entitled to a variance from the terms of the ordinance. From the judgment of the circuit court the objecting property owners have appealed to this court.

Our zoning statutes seem to be generally in harmony with the Standard State Zoning Enabling Act prepared under the auspices of the Federal Department of Commerce, which act has been adopted in many of the states. See McQuillan, Municipal Corporations, 3d Ed., Vol. 8, § 25.219. The board of adjustment in some of the states is called a board of appeals. In other states, it is called by the same name as is designated in our statute. In most of the states, the proceeding for a judicial review of the decision or order of the board of adjustment is by certiorari, but in some of the states the proceeding for such review is by appeal, the same method as is provided in our statute.

The inquiry in the circuit court is neither enlarged nor diminished by appeal. The scope of inquiry on appeal is the same as before the board of adjustment, though the circuit court is a court of general jurisdiction. In other words, under our statute the authority of the circuit court on appeal to permit a variance from the terms of the ordinance is the same as that conferred on the board of adjustment by § 781, Title 37, Code 1940. Vogel v. Board of Adjustment for City of Manchester, 92 N.H. 195, 27 A.2d 105; Oklahoma City et al. v. Harris et al., 191 Okl. 125, 126 P.2d 988; In re McInerney, 47 Wyo. 258, 34 P.2d 35. In Oklahoma City et al. v. Harris, supra, it was pointed out that under the Oklahoma law, review of the order or decision of the board of adjustment is by appeal and it was held that on appeal the district court 'sits as a glorified board of adjustment.'

The dominant question raised by appellants is whether or not the power given by § 781, Title 37, Code 1940, to vary the effect of the zoning ordinance in specific cases includes the power to authorize a nonconforming use, that is, a use which is prohibited by the ordinance. Appellants insist that such authority is not conferred by § 781, Title 37 supra; that the privilege to erect a nonconforming building or a building for a nonconforming use cannot be granted under the guise of a variance permit; that the authority to permit variances from the terms of the zoning ordinance conferred by § 781, Title 37, supra, is restricted to slight modifications as to height, area, distance from boundaries, etc.

In support of their contention, appellants argue that to construe the language of § 781, Title 37, supra, relating to the powers of the board of adjustment to authorize a variance from the terms of an ordinance as giving the board power to authorize a nonconforming use, would result in its unconstitutionality, in that it would be an unconstitutional delegation of legislative power to an administrative agency, there being no sufficient standards, rules, restrictions or limitations under which the board should act in reaching its conclusions.

The specific question has not been decided by this court. In Leary v. Adams et al., 226 Ala. 472, 477, 147 So. 391, 396, we pretermitted as unnecessary to the decision in that case the assertion that the power of the board of adjustment to authorize a variance was limited to minor details, saying: 'The city contends that the board of adjustment was limited in its functions to hear appeals concerning minute details and principally as to height and area only, and was without authority to modify the zoning ordinance as here sought. This may present a debatable question (In re Rose Builders' Supply Co., 202 N.C. 496, 163 S.E. 462; Falvo v. Kerner, 222 App.Div. 289, 225 N.Y.S. 747; People ex rel. Sheldon v. Board of Appeals, 234 N.Y. 484, 138 N.E. 416), the consideration of which may well await the necessity for its determination.'

While it is true that no body in which is vested the legislative power may...