Takao v. Zoning Bd. of Adjustment of City of Birmingham

• Decision Date: 03 March 1995
• Parties: John TAKAO v. ZONING BOARD OF ADJUSTMENT OF the CITY OF BIRMINGHAM. AV93000633.
• Court: Alabama Court of Civil Appeals

Page 873

656 So.2d 873

John TAKAO v. ZONING BOARD OF ADJUSTMENT OF the CITY OF BIRMINGHAM.

AV93000633.

Court of Civil Appeals of Alabama.

March 3, 1995.

Douglas Corretti and Donna Shirley of Corretti & Newsom, Birmingham, for appellant.

Demetrius C. Newton, City Atty., and Rowena Teague, Birmingham, for appellee.

SAM A. BEATTY, Retired Justice.

John Takao appeals from a summary judgment in a zoning case. We reverse and remand.

At some time before July 24, 1991, the Birmingham director of urban planning determined that a four-unit apartment building located in the City of Birmingham had lost its nonconforming status. Takao, the owner of the building, appealed that decision to the City's Zoning Board of Adjustment on July 24, 1991. The Zoning Board held a public hearing, which resulted in the Zoning Board's overturning the director's decision. The Zoning Board's records reflect a resolution adopted at its meeting on September 12, 1991, that conditionally overturned the director's decision, "subject to the applicant providing income tax records indicating rental income for the subject property during the time the applicant and his family owned the subject property." David Trott and other residents of the area in which Takao's building was located ("the residents") filed a notice of appeal to the circuit court on September 27, 1991, before the Zoning Board had received the records requested from Takao.

Takao later requested from the Zoning Board additional time in which to furnish the tax records. The Zoning Board's records reflect that on December 12, 1991, it granted Takao's request and gave him an additional 90 days from that date in which to furnish the records. In March 1992, the residents asked the Zoning Board to reconsider its actions in overruling the director and granting the extension of time to Takao. The Zoning Board's records reflect that the request for reconsideration was "given NO ACTION by the Board" at its meeting on April 9, 1992; thus, the Zoning Board clearly continued the cause.

Takao then moved to intervene in the circuit court action, filing a motion to intervene and an answer on July 10, 1992. The trial court granted intervention on July 17, 1992. Takao filed an amended answer on August 3, 1992. The residents moved to remand or to dismiss on March 30, 1993; their motion was denied on April 29, 1993. On June 4, 1993, the residents filed a motion to realign the parties; the trial court granted that motion on February 25, 1994. After realignment, Takao became the plaintiff, the Zoning Board remained the defendant, and the residents became intervenors.

On February 22, 1994, the residents moved for a summary judgment. Takao opposed that motion by filing his affidavit, on April 19, 1994. The trial court entered a summary judgment against Takao on May 20, 1994, and Takao appealed. On appeal, both the Zoning Board and the residents are appellees.

Takao argues here, for the first time, as far as we can tell, that the circuit court lacked subject matter jurisdiction. Subject matter jurisdiction may be raised for the first time on appeal. Ex parte Smith, 438 So.2d 766 (Ala.1983); Payne v. Department of Indus. Relations, 423 So.2d 231 (Ala.Civ.App.1982). Indeed, a lack of jurisdiction cannot be waived or jurisdiction conferred by consent. Payne, 423 So.2d at 233. See also City of Huntsville v. Miller, 271 Ala. 687, 127 So.2d 606 (1958).

An examination of the record clearly reveals that the Zoning Board never rendered a...