Thompson, Weinman & Co. v. Board of Adjustment of City of Sylacauga, 7 Div. 542

• Decision Date: 30 May 1963
• Docket Number: 7 Div. 542
• Citation: Thompson, Weinman & Co. v. Board of Adjustment of City of Sylacauga, 154 So.2d 36, 275 Ala. 278 (Ala. 1963)
• Parties: THOMPSON, WEINMAN & COMPANY et al. v. BOARD OF ADJUSTMENT OF CITY OF SYLACAUGA, Alabama, et al.
• Court: Alabama Supreme Court

Page 36

154 So.2d 36

275 Ala. 278

THOMPSON, WEINMAN & COMPANY et al. v. BOARD OF ADJUSTMENT OF CITY OF SYLACAUGA, Alabama, et al.

7 Div. 542.

Supreme Court of Alabama.

May 30, 1963.

Stringer & Montgomery, Talladega, and Robt. J. Teel, Rockford, for appellants.

Lyndol Bolton, Sylacauga, for appellees.

PER CURIAM.

The question for decision is whether a city zoning ordinance providing for a one-family residence district, should be varied to permit the operation of a marble quarry within the district.

On August 23, 1960, E. I. Dison and Thompson, Weinman & Company filed application for an adjustment or variance of Article 2, §§ 14 and 21 of the Zoning Ordinance of Sylacauga, which became effective on December 4, 1958, as the same applied to the SW 1/4 of the NW 1/4 of Section 31, Township 21 South, Range 4 East, Talladega County, Alabama. On September 16, 1960, after due advertisement, the Board of Adjustment of the City of Sylacauga denied the application for a variance. On September 30, 1960, E. L. Dison and Thompson, Weinman & Company gave notice of appeal to the Circuit Court of Talladega County, Alabama. On January 19, 1961, Rebecca Buckner, et al., filed a request for leave to file a petition to intervene in the cause, which was granted, and a petition to intervene was filed on the said date. A motion to strike and demurrers to the petition to intervene were overruled. These rulings are not assigned as error. Appellants then filed answer to petition to intervene.

After the evidence was introduced, which the court heard orally, the court denied the application for a variance and affirmed the decision of the Board of Adjustment. This appeal followed.

We shall not undertake to set out all the evidence, but shall try to state sufficient facts in the evidence to make the opinion understandable.

E. I. Dison is the owner of forty acres of land lying within the corporate limits of the City of Sylacauga and described as the SW 1/4 of the NW 1/4 of Section 31, Township 21 South, Range 4 East, Talladega County, Alabama. The forty acres was subject to executory lease and option to purchase, dated April 28, 1959 in favor of Thompson, Weinman & Company. Five hundred dollars ($500.00) was paid to Dison by Thompson, Weinman & Company for the option. In the event of the exercise of the option on thirty-two acres thereof, a total of $32,000.00 would be paid by Thompson, Weinman & Company to E. I. Dison, and E. I. Dison would have the right, in the event of the exercise of such option, to require Thompson, Weinman & Company to purchase the remaining eight acres for $25,000.00.

The forty acres were zoned R-1 by the Zoning Ordinance of the City of Sylacauga, which became effective on December 4, 1958. The forty had not been previously zoned and it was not in the city limits at the time of the adoption of the city's earlier Zoning Ordinance. An R-1 district under the Zoning Ordinance is a one-family residence district.

G. W. Beavers testified that he was Vice President of Thompson, Weinman & Company and negotiated the option for lease for the company and was unaware of the fact that the forty was subject to a zoning ordinance. Upon being advised by the Mayor of Sylacauga that nothing further was needed for the proposed operation, Thompson, Weinman & Company then commenced drilling operations on the forty and had expended in excess of $3,000.00 on such operations plus the cost of the option when they first learned of the existence of the Zoning Ordinance. Thompson, Weinman & Company continued to drill the forty at a cost in excess of $26,000.00. The drilling indicated the presence of a large amount of usable marble worth a large amount of money.

There was conflicting evidence as to the condition of the property and especially as it lay with reference to adjacent owners. There was testimony tending to show that the forty lay in a basin in which water stood and was filled with sink holes, some of which had fallen in and some of which had not; that it was surrounded by lands on which the mineral interests are outstanding and owned by other marble companies. The forty lies within half a mile of one operating quarry and within 3,000 feet of another operating quarry, and within 3,000 feet of a fertilizer factory. There was testimony tending to show that Thompson, Weinman & Company had drilled the Dison land in 1947 under a lease option agreement; that the 1947 option was not exercised because the quantity of marble could not be proved under the drilling methods in use at that time. A quarrying operation could be carried on on the Dison forty without danger to life and with safety to persons and property in the...