Priest v. Griffin

• Decision Date: 10 April 1969
• Docket Number: 8 Div. 241
• Citation: 284 Ala. 97,222 So.2d 353
• Parties: Emerson PRIEST et al. v. Gladys GRIFFIN et al.
• Court: Alabama Supreme Court

Page 353

222 So.2d 353

284 Ala. 97

Emerson PRIEST et al. v. Gladys GRIFFIN et al.

8 Div. 241.

Supreme Court of Alabama.

April 10, 1969.

Rehearing Denied May 8, 1969.

Mitchell, Poellnitz, Cox, Robison & McBurney, Florence, for appellants.

Keller & Hill, Florence, for appellees.

PER CURIAM.

This appeal by forty-six complaining residents is from a judgment of the Circuit Court of Lauderdale County granting a variance from the terms of a zoning ordinance duly adopted by the City of Florence wherein certain real property had been classified as a residential area. The trial court, contrary to a prior ruling of the zoning board (in a split decision), authorized a variance for the purpose of allowing the construction and operation (under guidance of the trial court) of a funeral home and chapel on the subject property.

The original petition was filed with the zoning board by Spry Burial Insurance Company, Inc., and Mrs. Gladys Griffin. The Spry Company (to which we will hereafter refer as Spry) is the proposed builder of the funeral home, while Mrs. Griffin, along with another, is under contract to sell the subject property (2.6 acres) to Spry.

The appeal from the decision of the board denying the petition for a variance is authorized by § 783, Title 37, Code 1940, as Recompiled in 1958. The powers of the board of zoning adjustment to grant a variance appear in § 781, Title 37, Code 1940, as Recompiled in 1958. We quote a pertinent part of said section:

" * * * The board of adjustment shall have the following powers: * * * To hear and decide special exceptions to the terms of the terms of the [sic] [zoning] 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 will be observed and substantial justice done. * * * "

Any party aggrieved by the final judgment or decision of the board of zoning adjustment may, within fifteen days, appeal to the circuit court or court of like jurisdiction, where the cause shall be tried de novo.

The appeal was taken and the cause tried de novo by the circuit court pursuant to § 783, Title 37, Code 1940, as Recompiled in 1958. The cause was thoroughly and vigorously contested in the circuit court through the medium of capable lawyers and before a jurist of considerable ability and judicial learning. The appeal here is well briefed by both sides.

We find there is diversity of judicial opinion among appellate jurisdictions outside of Alabama with respect to granting or denying a petition for a variance. We are not disposed to burden this opinion with a collation of these diverse opinions, but suffice it to say that we have reviewed the judicial thoughts expressed in many of these cases without departing from the judicial concept of this court as expressed in Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244, which we think adequately lays down basic guidelines for this jurisdiction.

We think this court should be very hesitant and reluctant to disturb by variance an existing zoning ordinance, enacted by a city governing body sitting in a legislative capacity, and the decision of the zoning board of adjustment, unless we are clearly convinced from all the evidence before the trial court and appearing in the record that the variance will not be contrary to the public interest (and the interest of the people in a given use district) and owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship.--s 781, Title 37, supra. It is to be noted here that the public interest is to be weighed along with the interest of the people in the classified district.--Nelson v. Donaldson, supra.

While the interest of the public as affected by the contrary interest of the people within the district is a factor to be considered, the pivotal and primary question or issue is whether or not, due to special conditions, a literal enforcement of the ordinance establishing the residential district will result in unnecessary hardship.

Much of the evidence before the trial court is devoted to proving and denying the existence of special conditions. The petitioners sought to prove by competent evidence that the City of Florence is in need of the services of a second modern funeral home that is well located to serve the public. The evidence tends to support proponents' contention that the proposed location is central and will not interfere with traffic or produce traffic hazards or congestion in the area of such location. There was some evidence to the contrary. Also evidence was adduced to show the quiet and unobtrusive manner in which the funeral home would be operated, the architectural design and the landscaping proposed to the end that the structure and the landscaping would blend and harmonize with the residences and other structures (churches) of the surrounding area within the district. In other words, the petitioners sought to establish that the funeral home, its premises and its manner of operation would be modern in every respect and inoffensive to the residents in the area. While the architecture and landscaping of a structure may reduce or mitigate the impact, such appearance does not conceal the fact that the structure is used for a funeral home, to which a vast number of people not engaged in operating a place of this kind are sensitive and have psychological opposition. Such presence and operation, so the opponents contend, obtrudes on their mental privacy and relaxation and is depressing. They feel that they will get to their burial grave soon enough without being reminded of it every day by the operation of a funeral home. But such operation is not a...