The Baldwin County Planning v. Rouge

• Decision Date: 09 April 2010
• Docket Number: 2080276.
• Citation: 68 So.3d 121
• Parties: The BALDWIN COUNTY PLANNING AND ZONING COMMISSIONv.MONTROSE ECOR ROUGE, L.L.C.Montrose Ecor Rouge, L.L.C.v.The Baldwin County Planning and Zoning Commission.
• Court: Alabama Court of Civil Appeals

68 So.3d 121

The BALDWIN COUNTY PLANNING AND ZONING COMMISSION

v.MONTROSE ECOR ROUGE, L.L.C.Montrose Ecor Rouge, L.L.C.

v.The Baldwin County Planning and Zoning Commission.

2080276.

Court of Civil Appeals of Alabama.

April 9, 2010.

Frank E. Bankston and Winthrop E. Johnson of Webb & Eley, P.C., Montgomery; and J. Scott Barnett, Baldwin County Legal Department, Bay Minette, for appellant/cross-appellee The Baldwin County Planning and Zoning Commission.Daniel G. Blackburn, Mark H. Taupeka, and Rebecca A. Gaines of Blackburn & Conner, P.C., Bay Minette, for appellee/cross-appellant Montrose Ecor Rouge, L.L.C.

On Application for Rehearing

BRYAN, Judge.

The opinion of October 2, 2009, is withdrawn, and the following is substituted therefor.

The Baldwin County Planning and Zoning Commission (“the Commission”) appeals a judgment entered by the Baldwin Circuit Court (“the circuit court”) insofar as it (1) declared certain provisions of the Baldwin County Subdivision Regulations (“the Subdivision Regulations”) to be void and unenforceable and (2) issued a writ of mandamus compelling the Commission to approve a preliminary plat (“the plat”) submitted to the Commission in November 2007 by Montrose Ecor Rouge, L.L.C. (“the developer”). The developer cross-appeals the circuit court's judgment insofar as it denied the developer's claim seeking an award of damages against the Commission for disapproving the plat. We affirm as to the Commission's appeal; we reverse and remand as to the developer's cross-appeal.

The developer owns a 7.98–acre parcel of land in the Montrose area of Baldwin County (“the developer's parcel”). The western boundary of the developer's parcel fronts on Mobile Bay. The plat proposed to subdivide the developer's parcel into eight residential lots, four of which would front on the bay (“the bayfront lots”). The bayfront lots were numbered 1 through 4. The plat proposed to subdivide the most inland portion of the developer's parcel into two lots numbered 7 and 8 and to subdivide the portion of the developer's parcel located between the bayfront lots and lots 7 and 8 into two lots numbered 5 and 6. Lots 5 and 6 would include land that is below the face of a bluff (“the bluff”), land that constitutes the face of the bluff, and land that constitutes the top of the bluff.

For purposes of flood insurance, the Federal Emergency Management Agency (“FEMA”) rates the land along the eastern shore of Mobile Bay based on its risk of flooding and exposure to velocity-driven waves in a storm. FEMA has rated a portion of the developer's parcel as VE, has rated a portion of it as AE, and has rated a portion of it as X. The portion of the developer's parcel that is rated VE is coastal land that is subject to a high risk of flooding and is also subject to velocity-driven waves in a storm. The plat would place the bayfront lots and the portion of lots 5 and 6 closest to the bay in the portion of the developer's parcel rated VE. The portion of the developer's parcel that is rated AE is subject to a high risk of flooding but is not subject to velocity-driven waves in a storm. The plat would place portions of lots 5 and 6 in the portion of the developer's parcel rated AE. The portion of the developer's parcel that is rated X is neither subject to a high risk of flooding nor subject to velocity-driven waves in a storm. The plat would place portions of lots 5 and 6 and lots 7 and 8 in the portion of the developer's parcel rated X.

The FEMA ratings for the developer's parcel are typical of the FEMA ratings for the eastern shore of Mobile Bay as a whole. FEMA regulations do not prohibit residential construction in areas rated VE or AE; however, they do impose special requirements on residential construction in such areas.

The plat showed that two areas of wetlands are located on the developer's parcel and that the subdivision would be configured so that most of the wetlands would be in common areas that are outside the eight residential lots. The plat also showed that a historic pottery kiln (“the kiln”) is located on the developer's parcel in an area that would be platted as part of lot 5.

The Commission considered the plat at a public meeting on January 17, 2008. Although the permit engineer for Baldwin County, who had reviewed the plat on behalf of the Commission, reported that the plat complied with all the technical requirements of the Subdivision Regulations, the Commission denied approval of the plat on four grounds. First, according to the Commission, the plat did not comply with § 1.2.2 of the Subdivision Regulations insofar as that section provides that “[l]and to be subdivided shall be of such character that it can be used safely for building purposes without danger to health or peril from fire, flood, or other menace.” Second, according to the Commission, the plat did not comply with § 4.4.5(g) of the Subdivision Regulations, which provides that a preliminary plat shall show “[w]ooded areas, wetlands, and any other conditions affecting the site,” because, the Commission said, the plat did not show the kiln. Third, according to the Commission, the plat did not comply with § 5.1(d) of the Subdivision Regulations, which provides that a plat shall comply with “[t]he standards and regulations adopted by all boards, commissions, agencies, and officials of Baldwin County,” because, the Commission said, the plat “conflicted with the goals of the Flood Hazard Management Plan for Baldwin County which is to prevent inappropriate land development in flood hazard areas.” Fourth, according to the Commission, the plat did not comply with § 5.2.2 of the Subdivision Regulations insofar as that section prohibits the subdivision or development of “[l]and which [the Commission] finds to be unsuitable for subdivision or development due to flooding, improper drainage, steep slopes, rock formations, adverse soil conditions or topography, utility easements or other features which will reasonably be harmful to the safety, health and welfare of the present and future inhabitants of the subdivision and/or its surrounding areas,” because, the Commission said, the bayfront lots would be located in “an area prone to severe flooding” and lot 6 would be dominated by the steep slope of the bluff.

On February 4, 2008, the developer sued the Commission in the circuit court, seeking a judgment (1) declaring that the portions of §§ 1.2.2, 5.1, and 5.2.2 upon which the Commission had relied in disapproving the plat (“the challenged portions of the Subdivision Regulations) were void because they were impermissibly vague and, therefore, were outside the authority of the Commission to regulate subdivisions; (2) issuing a writ of mandamus compelling the Commission to approve the plat; and (3) awarding the developer damages for the Commission's wrongfully disapproving the plat. Answering, the Commission denied that the challenged portions of the Subdivision Regulations were impermissibly vague or outside the Commission's authority to regulate subdivisions, denied that the developer was entitled to approval of the plat, and denied that the developer was entitled to any of the relief it sought. ¹ Following a bench trial at which it received evidence ore tenus, the circuit court entered a judgment declaring that the challenged portions of the Subdivision Regulations were void because they were impermissibly vague and, therefore, were outside the Commission's authority to regulate subdivisions; issuing a writ of mandamus compelling the Commission to approve the plat; and denying the developer an award of damages. In pertinent part, the circuit court's judgment stated:

“1. The Court finds from the evidence that with the exception of Sections 1.2.2, 5.1 and 5.2.2 of the Subdivision Regulations (discussed in paragraph 3 below), the proposed preliminary plat of Montrose Ecor Rouge Subdivision considered and denied by the Baldwin County Planning and Zoning Commission on January 17, 2008 met each and every requirement imposed by the Baldwin County Subdivision Regulations in effect at the time. In addition to being in compliance with the Subdivision Regulations, the Court finds that the subject plat was also in compliance with all other applicable laws, rules, regulations and ordinances.

2. Despite [the Commission's] arguments to the contrary, the Court finds that the Baldwin County Commission has adopted no regulations which prohibit the subdivision of land in flood-prone areas. While it is true that the existing Subdivision Regulations purport to have been adopted pursuant to the enabling authority granted by Ala.Code [1975,] §§ 11–19–1, et seq., the regulations themselves contain no subdivision rules which apply specifically to flood-prone areas as opposed to any other unincorporated areas of Baldwin County. Moreover, the Subdivision Regulations themselves contain provisions which expressly allow the subdivision and development of lands in flood-prone areas. See Subdivision Regulations § 5.2.2 (last paragraph) (allowing the subdivision of lands in areas ‘subject to flood’ provided that FEMA building regulations are followed). See also Subdivision Regulations § 5.3.18 (allowing streets to be constructed in flood-prone areas so long as no portion thereof is more than two feet below base flood elevation). Likewise, the Baldwin County Flood Damage Prevention Ordinance expressly permits the subdivision of lands in flood-prone areas. For these reasons, the Court finds that [the Commission's] denial of the preliminary plat application due to its location in a flood-prone area was arbitrary and capricious, and contrary to the express provisions of the Subdivision Regulations in effect at the time.

“3. The Court finds that certain portions of Sections 1.2.2, 5.1 and 5.2.2 of the Baldwin County Subdivision Regulations adopted January 1, 2007 (those sections on which [the Commission] relied in voting to deny the application) contain language which is...