Water Works Bd. of City of Birmingham v. Stephens

• Decision Date: 24 February 1955
• Docket Number: 6 Div. 800
• Citation: 78 So.2d 267,262 Ala. 203
• Parties: WATER WORKS BOARD OF CITY OF BIRMINGHAM v. G. C. STEPHENS.
• Court: Alabama Supreme Court

Page 267

78 So.2d 267

262 Ala. 203

WATER WORKS BOARD OF CITY OF BIRMINGHAM v. G. C. STEPHENS.

6 Div. 800.

Supreme Court of Alabama.

Feb. 24, 1955.

Cabaniss & Johnston, K. E. Cooper and J. Asa Rountree, III, Birmingham, for appellant.

Smyer, Smyer, White & Reid, Birmingham, for appellee.

PER CURIAM.

This is a proceeding begun by a petition to the Board of Adjustment of the City of Birmingham in respect to its zoning ordinance: the petitioner being the Water Works Board of the City of Birmingham. It was agreed that petitioner is a 'public service corporation and a municipal utility as contemplated by the General City Code of Birmingham,' and therefore an agency of the city. Jackson v. Hubbard, 256 Ala. 114, 53 So.2d 723. We presume, therefore, that it was set up under authority of section 394, Title 37, Code of 1940, and that the city has conveyed to it the water system which supplies the water needs of the city including the area here in question.

The water works board acquired three pieces of property, on which there are three dwelling houses, in north Birmingham at a cost of $25,500. The houses are to be removed and the board proposes to erect a water tank at a cost of $300,000, the tank to hold 6,300,000 gallons of water. The tank is set back twenty-five feet from the 18th Street front and twenty-two feet from 18th Avenue. The lot fronts one hundred and fifty-two feet on 18th Street and one hundred and forty feet on 13th Avenue north. The area is zoned 'B' residence in the comprehensive zoning district ordinance of the city. Section 1602 of the general city code is a part of that ordinance. In it a 'B' residence district may be used for the purposes specified for 'A' residence districts (one family dwellings, etc.) and also multiple dwellings and other specified uses. It does not include such a water tank as now proposed, but includes an electric substation without rotary machinery, or gas regulating station. Sections 1609 to 1617 and 1626 of the city code provide for exceptions to area regulations. They are special exceptions dependent upon certain prescribed details.

Sections 1618 and 1619 of said code have reference to nonconforming uses, such as where on August 4, 1926 (when the ordinance was adopted), it was used in a manner not conforming to the uses prescribed by the ordinance. Sections 1620, 1621 and 1623 have reference to a change from one nonconforming use to another nonconforming use. Section 1626 contains provisions for other exceptions. There seems to be no area zoned expressly for the construction or use of a water tank.

Sections 1642, et seq. provide for the creation, power and duties of a board of adjustment, and follow substantially the requirements of section 781, Title 37, Code of 1940 (applicable generally), and section 717, Title 62, Code of 1940, applicable to Birmingham.

The city ordinance, supra, contains various detail provisions, among them is section 1643 with reference to the board--in the main not here material, but providing in (e) that the board shall modify the strict application of the provisions of this chapter (the zoning ordinance) in various enumerated situations, including No. 10, which permits an exception, though not so termed, 'for the erection or use of a structure in any district by a public service corporation when such erection or use is reasonably necessary for the service of the public'.

Section 717, Title 62, Code, applicable to Birmingham (like the general statute, section 781, Title 37, Code, prescribing the power of the board of adjustment), provides that it shall have the following powers: (1) 'To hear and decide appeals (to it from the ruling of the administrative officers in the enforcement or application of the ordinance--section 1643, city code) where it is alleged there is error (etc., not here applicable).' (2) 'To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under said ordinance'. (3) '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 ordinances shall be observed and substantial justice done'. Section 719, Title 62, Code, (the same as section 783, Title 37, Code), provides for an appeal to the circuit court from the ruling of the board of adjustment, and on appeal the cause shall be tried de novo.

The Water Works Board of Birmingham made application to the board of adjustment for a modification of the zoning ordinance to permit the water works board to construct a water tank as described on the lot mentioned above.

On February 11, 1954, the board of adjustment, after notice and hearing upon the intervention and objection by the property owners, made a finding and order. The finding included the following: 'This board is of the opinion that a modification of the strict application of said zoning ordinance pertaining to said property will not tend to impair the health, safety, convenience or comfort of the public, including that portion of the public occupying the property immediately contiguous to said lot, and that the use of said lots as proposed is reasonably necessary for the service of the public'. The order then proceeded to modify the strict application of the zoning ordinance so as to permit the Water Works Board of the City of Birmingham to erect on said property a water tank such as described. Thereupon an appeal to the circuit court was taken by one of the property owners. A hearing was had on that appeal and trial de novo came on in court, without a jury. Evidence was taken by both parties and on August 17, 1954, the trial judge made a finding and rendered judgment, from which we quote:

'The property in question is zoned B residence in the second 45 foot district. It is located approximately 3/4 of a mile from the center of downtown Birmingham, and adjoins Oak Hill Cemetery. The area is fully developed and occupied by white citizens, mostly home owners. The land is elevated as compared with surrounding areas although the proposed site for the construction of the tank is one of the highest points. Before filing the application, the Water Works Board procured the assistance of an expert consulting agency, experienced in water works utility operation. The study and subsequent report indicated a need for additional facilities to maintain adequate water pressure for customers now being served and to provide in the future for anticipated increased demand.

'It was proposed to construct the tank in such manner as to afford adequate safety factors as to stresses and pressures. Other than a mental hazard, the erection of this tank should not present nor constitute a source of danger to the neighborhood or to the city as a whole. It should be noted here that the overall proposed plan for the system contemplated the construction of, at least, (4) other tanks some of which have been completed and others being now under construction. There would, of course, be additional pipe line extensions in the system. The idea was to build up water supply in storage tanks during the night time or period of minimum use and gravity feed this storage back into the system in the day time, or when most needed. The placement and building of this tank was not required solely because of service to the immediate vicinity but rather it was assumed that the entire general area would benefit.

'The testimony shows that there are other methods available such as installing additional pumps or water mains from Shades Mountain, the effect of which will accomplish the same purposes as intended by the erection of the storage tanks. This will cost considerable more money to install and to operate, and the proposed storage tank plan is without question the most economical operation.

'There are located within the general area other suitable and available sites for the location of the tank now under consideration, yet the proposed location, because of elevation, is probably the most desirable from the standpoint of the utility. The court has viewed the proposed site and the surrounding neighborhood. An inspection of a similar but smaller tank, recently completed at another location, was made. The proposed structure as planned will have a height of 98 feet and be 105 feet in diameter. It would be rather difficult to compare the size of this tank with some of the buildings or other structures in our city. But, certainly this structure will be of a substantial size.

'It is conceded that the question of possible decreased valuation to the Stephens property (or any of the homes in the general neighborhood) was not an issue in this proceeding. There is no doubt in the court's opinion that the erection of this structure would substantially diminish the value of appellant's property and constitute an invasion of his property rights with no provision for compensation. It will have a similar effect, in varying degrees on many other homes in the vicinity.

'Our Supreme Court has upheld the rights of boards of adjustment 'to determine that in a particular situation the zoning ordinances should not be applied literally and, to that end the board should make proper adjustment to prevent unnecessary hardship, even to the extent of authorizing non-conforming uses.' Nelson v. Donaldson, 255 Ala. 76 . But here there is no question of hardship presented, since the site was acquired with full knowledge of its restricted use, only a short time before filing the application to modify.

'Variance from the terms of the zoning ordinance...