Peterson v. Jefferson County

• Decision Date: 08 June 1979
• Citation: 372 So.2d 839
• Parties: B. D. PETERSON and American Fitness Center of Alabama, Inc., an Alabama Corporation v. JEFFERSON COUNTY et al. 77-718.
• Court: Alabama Supreme Court

Page 839

372 So.2d 839

B. D. PETERSON and American Fitness Center of Alabama, Inc., an Alabama Corporation v. JEFFERSON COUNTY et al.

77-718.

Supreme Court of Alabama.

June 8, 1979.

Rehearing Denied July 6, 1979.

Douglas Corretti and Frank E. Lankford, Jr., J. Howard Perdue, Jr., Birmingham, for appellant, B. D. Peterson.

Jack E. Held, Birmingham, for appellant, American Fitness Center.

Edwin A. Strickland, County Atty., Birmingham, for appellees.

PER CURIAM.

B. D. Peterson and American Fitness Center of Alabama, Inc., appeal from a judgment of the Jefferson County Circuit Court denying injunctive relief and rejecting a claim for damages. We affirm.

The pertinent facts out of which this controversy arises are, in large part, set out in the final decree (as amended) of the Circuit Court:

"This cause presents a justiciable controversy which is properly brought in a Court of Equity. The action is brought by two Plaintiffs. Plaintiff, Peterson, is an individual who is the owner of improved real property situated in Jefferson County, Alabama and the corporate Plaintiff, American Fitness Center of Alabama, Inc., is an Alabama corporation. Plaintiff, Peterson, has leased to Plaintiff, American Fitness Center, the said real property with improvements. The intended use of the subject property is for a 'fitness center', the operation of which will entail the utilization of a considerable amount of water. The Jefferson County Commission, in the exercise of its powers, has built and does maintain the Patton Creek Waste Water Treatment Plant which is a sewage disposal facility and which serves residents and commercial establishments in the county. Because of the increase in demands for sewage treatment beyond the design capacity of the plant and its EPA permit in the area of Jefferson County which is served by the said plant, the county did, in the exercise of its administrative powers and under supervision of the Alabama Water Improvement Commission and the Environmental Protection Agency of the Federal Government, declare a moratorium upon the further burdening of the plant and its facilities by new installations, except for already approved new installations. This action was taken by the Commission on February 10, 1976. Later, on December 23, 1976, September 27, 1977, June 20, 1978, and on July 5, 1978, amendments were made to the moratorium resolution. Although it is in no way controlling on this decision, it is noted that the latter amendment included, specifically, connections, re-connections, expansions and changed uses of property and amounted to a confirmation of the general statements made in the original moratorium resolution. The intended use of the subject property as a 'fitness center' is a changed use. The Moratorium Committee which was established by the Jefferson County Commission allotted to the prospective user of the subject property a daily sewer allocation of 471 gallons, which was the average daily sewer use of the property for the past five years. According to the evidence, the operation of the 'fitness center' would require in excess of 3,000 gallons daily.

In the Bill of Complaint, as amended, the following basic legal principles are set forth as grounds for the granting by the Court of the prayers contained in the Bill of Complaint:

1. That the Jefferson County Commission was without authority to adopt the moratorium resolutions and

2. That the action of the Jefferson County Commission, through the Moratorium Committee, in the allotment of the stated gallonage to Plaintiffs for the operation of the 'fitness center' was arbitrary and capricious and was not based upon any lawful authority and was not governed by any resolution of the Defendants or any enabling act enacted by the Legislature of the State of Alabama, and

3. The violation by Jefferson County of sections of the United States Constitution and the Constitution of the State of Alabama and specifically that Defendants are depriving Plaintiffs of their right to equal protection under the law by not allowing Plaintiffs a sufficiency of water gallonage to enable Plaintiffs to use their said property for a 'fitness center' even though said real property is properly zoned for commercial use.

At the conclusion of the testimony of Plaintiffs and after each Plaintiff had rested its case, the Defendants moved the Court, orally, for a directed verdict and judgment. Since it was near the close of the day, and because the Court desired to conduct a further study of the legal issues involved, the Court delayed its ruling upon the motion until this instant date at which time the Court has announced, from the bench, its ruling upon the motion of Defendants.

Some of the questions raised by the pleadings and proof in this instant case have been treated and decided in the case of Custred, et al vs. Jefferson County, et al on June 16, 1978, 12 ABR 1554 S.C. 2677. ¹ With regard to the question of arbitrariness and capriciousness as raised by the pleadings in this instant case, in Custred the Supreme Court quoted from Carson Cadillac Corp. vs. City of Birmingham, 232 Ala. 312, 167 So. 794 (1936):

'It is well-settled that courts of equity, in the absence of fraud or gross abuse will not interfere with the exercise of discretion by administrative boards in the determination of the necessity and requirements of public accomplishment, much less control the judgment of such boards in respect to matters within the technical field of their duties and powers.'

and then stated as follows: 'However, assuming that arbitrariness or capriciousness is equivalent to gross abuse, then the question is whether the committee's action is supported by a scintilla of evidence which will furnish an inference that Cross Creek was properly granted a sewer connection permit.' Under this 'scintilla rule', this instant Court finds much more of a scintilla of evidence upon which to base an inference that the stated actions of the Committee and Commission were legally proper.

The Court finds that the Jefferson County Commission had full legal authority to adopt the subject moratorium resolutions. The Court further finds that the activities of Defendants in the allotment of the stated water gallonage to Plaintiffs was (sic) not arbitrary, capricious or without lawful authority therefor and further that there has been no violation on the part of the Defendants on any of the constitutional rights of the Plaintiffs.

As stated by the Court from the bench, the motion of Defendants for a directed verdict and judgment is granted.

Accordingly, it is CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court as follows:

ONE : A judgment is hereby rendered in favor of Defendants and against Plaintiffs and the cause is dismissed, with prejudice.

TWO : The costs of this action are taxed to Plaintiffs, for which let execution issue."

The appellees have conceded that their motion at the close of the plaintiffs' case was incorrectly denominated a motion for a directed verdict, but it appears that both the trial court and the parties have treated this motion as a Rule 41(b) ARCP motion, and thus, we shall consider it accordingly. See Chaney v. General Motors Corp., 348 So.2d 799 (Ala.Civ.App.1977).

The appellants contend that the trial court erred in the following respects:

1. in ruling that as a matter of law, the subject property did not fall within an enumerated exception to the moratorium resolution;

2. in considering the operative effect of a resolution of the Jefferson County Commission on July 5, 1978;

3. in failing to rule that the July 5th resolution impaired the appellants' contractual obligations;

4. in ruling that the enforcement of the resolution was not arbitrary, capricious and violative of due process and equal protection;

5. in ruling that the allocation of 471 gallons per day was not arbitrary, capricious and violative of due process and equal protection and

6. granting the motion for directed verdict.

We have considered this sewer moratorium and the actions of the administrative body charged with its enforcement very recently, Custred v. Jefferson Cty., 360 So.2d 285 (Ala.1978) and in that case, we noted that "judicial review of administrative action is . . . limited." Additionally, this case was heard by the trial court sitting without a jury. The Ore tenus rule applies and the trial court's conclusions will not be disturbed on appeal unless palpably erroneous. Custred, supra.

I

The appellants urge this court to recognize that since a valid building permit was issued for the original construction of the building in question in 1963, the property is specifically excluded from the operation of the moratorium resolution by the resolution's terms.

"Provided, however, there shall be excluded from this moratorium any sewer connection authorized by valid building permits issued prior to the date hereof by Jefferson County . . ."

The exception noted above does include the sewer connections installed in the original construction of this building and the sewer connections which were installed in a 1966 renovation. The appellants however, are seeking an increased sewer allocation to service installations which have not been authorized by a valid building permit. The lack of a valid building permit is the very reason that this litigation was instigated. The appellants allege that when they submitted the plans and specifications for their proposed renovation to the Building Department of Jefferson County, they were informed of the necessity of applying for an exception to the moratorium. The unfavorable sewer allocation is the precipitating factor that caused this action to be filed. The trial court did not err in refusing to find that this property was not within the exclusions provided in the original moratorium resolution.

II

The appellants have raised two issues relating to the trial court's consideration of a resolution of the Jefferson County Commission passed...