Waters v. City of Birmingham, 6 Div. 490

• Decision Date: 07 March 1968
• Docket Number: 6 Div. 490
• Citation: 282 Ala. 104,209 So.2d 388
• Parties: J. R. WATERS et al. v. CITY OF BIRMINGHAM et al.
• Court: Alabama Supreme Court

Page 388

209 So.2d 388

282 Ala. 104

J. R. WATERS et al. v. CITY OF BIRMINGHAM et al.

6 Div. 490.

Supreme Court of Alabama.

March 7, 1968.

Rehearing Denied May 2, 1968.

Winston V. McCall and Pritchard, McCall & Jones, Birmingham, for appellants.

J. M. Breckenridge, Birmingham, for City of Birmingham.

Romaine S. Scott, Jr., J. Robt. Fleenor, John H. Morrow and Bradley, Arant, Rose & White, Birmingham, for Methodist Hospital.

HARWOOD, Justice.

The appellants here were the complainants below in a declaratory proceedings in equity. They sought to have declared invalid Ordinance 391 G which undertook to amend the Zoning District Map of the City of Birmingham as same appears in the General Code of the City of Birmingham of 1944, as amended.

The respondents were the Methodist Hospital, Inc., a Corporation, and the City of Birmingham.

The land affected and rezoned by Ordinance 391 G was owned by the Methodist Hospital, Inc., a Corporation and consisted of roughly 37 acres. Prior to the enactment of the ordinance this land had been designated as R 2 (single family district). The effect of the ordinance was to change this designation to B 2 (general business district).

After a full hearing the Chancellor entered a decree adjudging and decreeing that Ordinance 391 G was valid, and the complainants below perfected this appeal from such decree.

The facts deducible from the pleadings and evidence show that the complainants below are the owners of the Eastwood Mall Shopping Center, a developed shopping center complex of approximately 52 acres. This mall is directly across Oporto Avenue from the Methodist Hospital property on its eastern side, and is designated B 2.

On its southern side and across a road the Methodist Hospital property is bounded by an area which has been zoned in large part as B 1, and in lesser part as R 3 (multiple housing units.).

On the west of the property is a residential area. However, a ridge along the west of the property buffers this area from the residential property which would not be affected by a commercial development of the Methodist Hospital property. None of the residents of this area have joined in these proceedings.

On the north the Methodist Hospital property is bounded by U.S. Highway 78, a divided highway constituting the main highway to Atlanta. A 20 acre area immediately across Highway 78 and wider along Highway 78 than is the Methodist Hospital Property, has been zoned M 1, or light industrial.

Thus the Methodist Hospital property, zoned R 2 prior to the enactment of Ordinance 391 G, was in effect a residential peninsular intruding into an area zoned for commercial, or business, or multiple residence areas, the designation or zoning of such areas having occurred since the original comprehensive zoning.

It is also to be noted that property at the corners of Oporto Avenue and Montclair Road, only a short distance south of the property in question has been zoned B 2.

In the hearing below, M. J. Sasser, Director of Inspection Services for the City of Birmingham, testified as a witness for the appellants. After an investigation, he had recommended that Ordinance 391 G not be passed. In his opinion there was sufficient property in the area already designated B 2. However, on cross examination Mr. Sasser testified he had not made any detailed study of the trade area nor did he make any survey along these lines, and his opinion would be altered if a survey showed there was not sufficient commercial property in the area. Mr. Sasser further testified that he does not consider the present designation of the hospital property (M 1, single family dwellings) to be a proper or suitable designation for the property.

The evidence also shows that the Zoning Advisory Committee of the City of Birmingham had recommended against rezoning the property of the Methodist Hospital.

Several other witnesses testified in appellants' behalf that in their opinions the property should not be rezoned and gave the factors entering into the formation of their opinions, such as traffic conditions, availability of commercial property in the area, and so forth.

The testimony of some of these witnesses is voluminous and in some respects rather tenuous because of the conditional basis of their opinions, though the opinions formed are to the effect that the Methodist Hospital property should not be rezoned.

On the other hand, the testimony of the witnesses for the appellees is also voluminous.

In the main, it is directed toward showing that former residential property in close proximity has been rezoned to commercial; a number of national concerns and thirty-five to forty lesser business concerns have expressed interest in locating on the hospital property if it should be rezoned; the hospital property though zoned residential has remained underdeveloped, and there has been no residential development along Crestwood Boulevard adjacent to the property nor in other nearby areas; City Stores (Lovemans) considers the hospital property as the 'number one location in the City' for a suburban store and has had two trade surveys made.

Several additional factors were also put forth as to the desirability of rezoning the hospital property by witnesses for the appellees. Again, much of this testimony is tenuous. Mr. Frederick M. Robinson, a partner in Harland Bartholomew and Associates who work in the field of city planning and zoning, testified at great length. He listed factors against rezoning the hospital property and those in favor thereof. The following excerpt from his testimony is illustrative:

'Q Do you have a judgment--with factors in your judgment preponderant (preponderate)?

'A I cannot give a conclusive answer to that question unless and until I have studied and evaluated the kind of information that I have talked about. A decision of that order in my case would not be without points of merit on either side.

'Truly there are reasons to support such an extension of Eastwood and truly there are reasons which argue against it.'

It is deducible from Mr. Robinson's testimony that the 'kind of information' he needed for a conclusive answer was a market study or information relative to demand for the development of the hospital property as a shopping center. Other witnesses presented by the appellees did testify as to this factor as to the need for developing the hospital property as a shopping center.

Under a general assignment of error to the effect that the court erred in declaring Ordinance 391 G to be valid, the appellant has argued four points.

1. Appellants contend that Ordinance 391 G is invalid because it is unreasonable and amounts to nothing more than an arbitrary fiat.

A city governing body in considering a zoning ordinance, as in case of any other ordinance, acts in a legislative capacity. Ball v. Jones, 272 Ala. 305, 132 So.2d 120; Marshall v. City of Mobile, 250 Ala. 646, 35 So.2d 553; Episcopal Foundation of Jefferson County v. Williams, Ala.,202 So.2d 726.

Further, if the adoption of the ordinance raises questions upon which reasonable differences may exist in view of all the circumstances, and the wisdom of the ordinance is fairly debatable, then the action of a municipal governing body in adopting the ordinance will not be deemed arbitrary, a court being unwilling under such circumstances to substitute its judgment for that of the municipal governing body acting in a legislative capacity. Leary v. Adams, 226 Ala. 472, 147 So. 391; Episcopal Foundation of Jefferson County v. Williams, supra.

The evidence presented by the appellees below, if not preponderating, and it might well be so considered, without question raises debatable and delicate issues as to the wisdom of enacting Ordinance 391 G. The solution of these issues is primarily within the province of the city governing body performing its legislative duties. We find no warrant under the evidence presented justifying the court below, or this court, in declaring that the action of the City Council of Birmingham was arbitrary or capricious in enacting Ordinance 391 G.

2. Appellants contend that...