O'Rorke v. City of Homewood, 6 Div. 553

• Decision Date: 02 July 1970
• Docket Number: 6 Div. 553
• Parties: Charles O'RORKE et al. v. CITY OF HOMEWOOD, Alabama, etc., et al.
• Court: Alabama Supreme Court

Page 487

237 So.2d 487

286 Ala. 99

Charles O'RORKE et al. v. CITY OF HOMEWOOD, Alabama, etc., et al.

6 Div. 553.

Supreme Court of Alabama.

July 2, 1970.

Jenkins, Cole, Callaway & Vance, Birmingham, for appellants.

Irvine C. Porter, Birmingham, for appellee on brief.

Sadler, Sadler, Sullivan & Sharp, Birmingham, for Eugene Wylie Corp.

MERRILL, Justice.

The question presented here concerns the legality of the exchange of a 7.63 acre parcel of real estate owned by the City of Homewood for a privately owned 15-acre parcel of real estate.

Ordinance No. 949 of the City of Homewood was adopted on May 22, 1967, as a means of effectuating the exchange. In effect, the ordinance stated that:

(1) The City had acquired approximately 15 acres from three grantors, with two deeds being executed in 1930 and one in 1954.

(2) The grantors agreed to release any restrictions placed on the use of the property.

(3) A portion of the property had been conveyed to the Armory Commission of the State of Alabama.

(4) A portion of the property had been conveyed to the State of Alabama for right of way.

(5) Only about 7.63 acres of the parcels of property remain available to the City for municipal purposes.

(6) The major portion of the 7.63 acres is limited in its usefulness for a public park, recreation area, or any other municipal purpose, inasmuch as the same is subject to flooding and does flooc extensively at periodic intervals.

(7) The Eugene Wylie Corporation has offered to exchange for the 7.63 acres a tract of land located on high ground in the City of Homewood consisting of approximately 15 acres, which would be graded and improved pursuant to the terms and conditions of an agreement between the said Eugene Wylie Corporation and the City of Homewood.

(8) The Armory Commission has agreed to reconvey its interest in the property to the City of Homewood in exchange for the conveyance of an additional parcel of approximately 5 acres to it by the Eugene Wylie Corporation.

(9) The Eugene Wylie Corporation has agreed to construct a new armory on the 5-acre tract with a reversionary clause in favor of the City of Homewood in the event it is abandoned for armory purposes. The new armory building will be made available to the citizens of Homewood at all times when it is not needed or required for military purposes.

(10) The City Council found that the land proposed to be conveyed to the City is more suitable for use by the City and the Armory Commission for park and recreational purposes and for the construction, maintenance and operation of an armory than the 7.63-acre tract it now owns, and the exchange of the properties would be greatly in the public interest.

(11) The offer of Eugene Wylie Corporation to exchange the properties was accepted, and the offer of the Armory Commission to reconvey the property to the City of Homewood was accepted.

On June 29, 1967, the bill of complaint was filed in equity against the mayor, the City of Homewood, and the Eugene Wylie Corporation seeking to declare Ordinance No. 949 of the City of Homewood null and void and seeking injunctive relief to prevent respondents from conveying any interest in the property owned by the City.

The real property which the City of Homewood sought to convey to the Eugene Wylie Corporation pursuant to the ordinance is alleged to have been a 'public park' continuously until the filing of this suit. The four complainants allege that as citizens and taxpayers of the City of Homewood and as owners of property in the immediate vicinity of the 'park,' they are entitled to make use of the 'park' as members of the general public. Further, the bill of complaint states that the agreement conveying the 'park' is illegal because the respondent City failed to comply with the requirements of the statutes or Constitution of Alabama governing the alienation of park property, and that the respondents are proceeding to put into effect the terms of the agreement. Complainants allege that as property owners and members of the general public of Homewood, they will be irreparably injured and damaged by the enforcement or carrying into effect of the ordinance.

Respondents, in effect, denied the allegations charging the invalidity of the ordinance in question, and the cause came before the Chancellor for oral hearing on December 11, 1967.

The transcript consists of almost five hundred pages and of some eighty exhibits, including several photographs. Most of the testimony of complainants' witnesses concerns the history of the land and its use by the public, while the respondents sought to bring out disadvantageous characteristics of the land when used as a park and the desirability of the proposed exchange. Respondent, Eugene Wylie Corporation, planned to construct a large shopping mall on the property, and testimony was offered as to the benefits the City would receive from taxation and increased spending in the city.

The evidence tended to establish these facts about the land. The City of Homewood had acquired the fee simple title to most of the land in lieu or payment of certain municipal assessment liens exceeding the sum of $28,000.00 in 1930. The rest of the property, known as the Smyer tract, was acquired by the City in 1954. None of the instruments conveying this property to the City mentioned dedication of the land as a public park, or created an obligation for the City to hold the land as a public park. Any restrictions on the use of the property were released by the grantors prior to passage of the ordinance. (These original restrictions were that the property would not be used for residential or commercial purposes).

The land lies along the south side of Shades Creek Parkway in Homewood. Shades Creek runs through the area and floods the land several times a year. Respondents offered evidence of severe and periodic flooding. No evidence was presented of any improvement made on the property before 1933. A C.W.A. project built a pavilion, barbecue pits and § stone entrance in 1933 and cleared some of the underbrush. An attempt was made to build an amphitheater but it was washed away when the creek flooded. A shooting range was established in the late 1940's and part of the area was fenced off to keep out the public. The property remained heavily grown up in underbrush.

In 1954, a full time park superintendent was hired by the City to oversee all of its parks. The property first appeared in the budget in October, 1958. In 1957 or 1958, regular expenditures were made for the property from the budget of the Park and Recreation Board. A program of improvement was started, and a summer program with a director was conducted there, but weather conditions and flooding ended the program about 1965.

During the summer, the most useable part of the property is cleared daily and expenditures have been made for maintenance and cleaning. It is generally used by groups. The pavilion may be reserved and complainants introduced evidence that it had been used often during summer months.

At the present time, the armory occupies about one-half of the property, while the cleared part of the remaining half has playground equipment and a picnic area. The uncleared wooded area is said to be low, swampy and full of snakes. One of appellants' witnesses referred to it three times as a 'snake pit.'

The initiative behind the attempt at alienation of the property was a proposal by the Eugene Wylie Corporation seeking an exchange of properties, so that a large shopping mall could be built on the property then owned by the City. It will suffice to say that the City would gain much in increased tax revenues from the exchange, along with a superior park area and a new armory. Respondents introduced much evidence in this regard. Other aspects of that matter have been before us. See Zoning Board of Adjustment of City of Mountain Brook v. Wright, 283 Ala. 654, 220 So.2d 261; Cudd v. City of Homewood, 284 Ala. 268, 224 So.2d 625.

A final decree was rendered by the trial court on December 13, 1967, stating in part as follows:

'This Court decides, hereby, that the scattered and sporadic treatment of certain indefinitely described portions of the area in question by the City of Homewood and the use by the general public as a playground or park area was not such as to constitute and determine real property described in the Bill of Complaint, or any portion thereof, to be a public park, or 'park property', within the contemplation of the pleadings in this cause and the legal meaning and import of these terms under the Laws and Statutes of the State of Alabama.'

Accordingly, the court held that complainants were not entitled to the relief prayed for in their bill of complaint, and ordered the case dismissed. Thereafter, this appeal was perfected.

The only assignments of error argued by appellants are that the final decree is contrary to the great weight of the evidence.

Appellants challenge the alienation of this municipal property on the ground that the City failed to comply with the legal requirements said to be imposed upon such a transfer. Amendment 112 of the Constitution of Alabama of 1901, adopted in 1956 (listed in 1958 Recompilation, Vol. 1, p. 427), provides in part:

'* * * It is provided, however, that the legislature may enct general, special, or local laws authorizing political subdivisions and public bodies to alienate, with or without a valuable consideration, public parks and playgrounds, or other public recreational facilities and public housing projects, conditional upon the approval of a majority of the duly qualified electors of the county, city, town, or other subdivision affected thereby, voting at an election held for such purpose.'

This constitutional provision is implemented by an Act of the legislature listed as Tit. 47, § 62(1) in the 1958 Recompilation:

'The governing bodies of counties, cities, towns, and other subdivisions of the state shall have full power...