Payne v. Shelby County Com'n

• Decision Date: 19 December 2008
• Docket Number: 2070545.
• Citation: 12 So.3d 71
• Parties: Timothy A. PAYNE and Frances L. Payne v. SHELBY COUNTY COMMISSION and Shelby County Planning Commission.
• Court: Alabama Court of Civil Appeals

12 So.3d 71

Timothy A. PAYNE and Frances L. Payne v. SHELBY COUNTY COMMISSION and Shelby County Planning Commission.

2070545.

Court of Civil Appeals of Alabama.

December 19, 2008.

Jason B. Tingle of Porterfield, Harper, Mills & Motlow, P.A., Birmingham, for appellants.

George W. Royer, Jr., and Scott W. Faulkner of Lanier Ford Shaver & Payne, P.C., Huntsville; and Frank C. Ellis, Jr., of Wallace, Ellis, Fowler & Head, Columbiana, for appellees.

MOORE, Judge.

Timothy A. Payne and Frances L. Payne appeal from a summary judgment in favor of the Shelby County Commission and the Shelby County Planning Commission. We affirm.

Procedural History

On June 6, 2006, the Paynes sued B & CC, LLC; Rick Burch; Burch Properties, LLC; the Shelby County Commission; and the Shelby County Planning Commission. Against the County Commission and the Planning Commission, the Paynes alleged claims of misrepresentation; suppression; deceit; promissory fraud; breach of contract; and negligence and/or wantonness. Those claims arose out of a conditional rezoning resolution adopted by the Planning Commission in 2001 concerning property located adjacent to the Paynes' property and the County Commission's and the Planning Commission's efforts, or lack thereof, to enforce that rezoning resolution.

The County Commission and the Planning Commission filed a joint motion for a summary judgment. On January 4, 2008, the trial court granted that motion in favor of both defendants. The trial court certified that order for interlocutory review, pursuant to Rule 54(b), Ala. R. Civ.App. The Paynes appealed, asserting that the trial court had erred in entering the summary judgment in favor of the County Commission and the Planning Commission.¹

Factual History

In 2001, the unidentified owner of a 9.5-acre tract of land located in an unincorporated area of Shelby County filed a request with the Planning Commission to rezone the land from an "E-2 Single Family Estate" to an "O-1 Office and Institutional District." The Planning Commission considered the rezoning request at an October 1, 2001, meeting. Several property owners from Havenwood Park, a subdivision located adjacent to the 9.5-acre tract, opposed the request. The Paynes' home was located in Havenwood Park, and they were among the property owners opposed to the rezoning request. However, the Planning Commission adopted a resolution rezoning the 9.5-acre tract as requested, subject to the following conditions:

"That the Development Review Committee shall ensure that there will be a minimum 50' setback adjacent to all residential property, undisturbed if possible; architectural character of any improvements will be limited to 2 stories in height with steeply pitched roofs and an exterior design reflecting residential character; the maximum footprint of any structure on the property shall not exceed 5,000 square feet; a detailed erosion control and storm water runoff plan shall be provided; light fixtures shall not exceed 20' in height and shall not spill over onto adjoining properties; a detailed traffic study including traffic counts, potential and proposed improvements on Valleydale Road shall be provided by the applicant.

"... [T]hat following review by the Development Review Committee, the site plan will be scheduled to go to the Planning Commission for final approval."²

The 9.5-acre tract sat idle until 2005, when Rick Burch and his company, Burch Properties, LLC (hereinafter referred to collectively as "Burch"), filed a site plan for approval with the Shelby County Department of Development Services ("the Department").³ The site plan was assigned for review to Michelle O'Neal, who was employed with the Department. On March 29, 2005, O'Neal notified Burch that his site plan was deficient and could not be approved until he addressed several identified areas. Because of the deficiencies in Burch's proposed site plan, it was not placed on the Planning Commission's May 2005 agenda. Burch asked the Planning Commission to continue the matter to the June 2005 meeting.

Around the same time that Burch submitted his site plan to the Department, he began clearing and grading the 9.5-acre tract. Beginning in March 2005, the Department began receiving complaints regarding Burch's clearing efforts and regarding the runoff of water and sediment from the undeveloped tract. The Paynes were among those complaining to the Department. Rick Burch met with the Paynes and other homeowners in the subdivision to discuss their complaints and to discuss his plans for the 9.5-acre tract of land.

According to Timothy Payne, in July 2005 Burch agreed to build an earthen berm on the 9.5-acre tract in order to block the homeowners' view of Burch's office development. Timothy asserted that this plan was made known to O'Neal and that she made suggestions to Timothy and Burch as to how the berm could be addressed in Burch's site plan. Timothy sent a letter to Burch setting forth the terms of their "agreement" as to this berm. Timothy also copied O'Neal with that letter. However, Burch and Timothy did not execute a written agreement regarding the berm.

Burch submitted his revised site plan to the Department, and the matter was placed on the agenda for the September 2005 Planning Commission meeting. Timothy objected to any consideration of Burch's site plan because, he asserted, Burch had disturbed the buffer zone between the area to be developed and the subdivision; Burch had not constructed the berm, as purportedly agreed; and Burch had not addressed or remedied the runoff of water and sediment from his property onto the Paynes' property. The Department did not recommend approval of the site plan, and, according to a September 19, 2005, resolution of the Planning Commission, the application was "tabled" "until the applicant can provide an acceptable landscaping plan, grading plan and demonstrate resolution of the repairs of the buffer that has been virtually eliminated."⁴

In February 2006, Burch submitted his plans to repair the buffer zone. Although Timothy continued to argue that the site plan did not adequately comply with the 2001 conditional resolution, the Planning Commission voted to place Burch's site-plan application on the agenda for the March 2006 Planning Commission meeting.

At the Planning Commission's March 2006 meeting, Timothy appeared and opposed Burch's revised site plan. However the Planning Commission voted unanimously to approve Burch's site plan, subject to certain conditions. Among other things, the Planning Commission required (1) that "the berm and the entire northern property boundary must be planted as shown on the landscape plan and inspected by [the Department] staff before building permits will be released" and (2) that "permanent or temporary soil stabilization must be applied to disturbed areas within seven (7) days on areas that will remain unfinished for more than thirty (30) calendar days."

The Paynes filed this action in June 2006, asserting that the County Commission and the Planning Commission were liable for negligence and/or wantonness; misrepresentation; suppression; deceit; promissory fraud; and breach of contract. Before O'Neal's March 7, 2007, deposition, and, thus, before the County Commission and the Planning Commission filed their April 24, 2008, appellee's brief, Burch had constructed the berm and had planted trees and shrubs on it. He had not, however, complied with the other conditions imposed on him by the Planning Commission. As a result, the Department had not issued any building permits to Burch before the County Commission and the Planning Commission filed their brief to this court.

According to O'Neal, enforcement actions against Burch were "an ongoing matter" and the Department had several options available to it. O'Neal testified that, in its efforts to enforce the rezoning resolution, the Planning Commission had continued its consideration of Burch's site plan, had "tabled" its consideration of Burch's site plan, had required additional plantings from him, and had declined to issue building permits to him. Another option available to the Planning Commission was to rescind the rezoning resolution. O'Neal was aware that the Shelby County zoning regulations authorized the Planning Commission to fine persons who violated those regulations; however, she had not been involved in any cases where that power had been exercised.

Standard of Review

"Our standard of review for a summary judgment is as follows:

"`We review the trial court's grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006). Once the summary-judgment movant shows there is no genuine issue of material fact, the nonmovant must then present substantial evidence creating a genuine issue of material fact. Id. "We review the evidence in a light most favorable to the nonmovant." 943 So.2d at 795. We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala.2006).'"

Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 793 (Ala.2007) (quoting Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala.2006)).

Analysis

The Paynes assert that the County Commission and the Planning Commission are subject to tort liability for falsely representing that the conditions placed on the conditional rezoning resolution would be met; for suppressing the fact that they had no power to ensure that the conditions placed on the 9.5-acre tract would be met; for falsely promising that the residential character of the Paynes' property would be preserved through the placement of restrictions on the manner in which the 9.5-acre tract could be developed; and for negligently or wantonly failing to enforce the rezoning resolution at issue in this case. The Paynes...