Appeal from Jefferson Circuit Court. (CV-93-5013). William A. Jackson, Trial Judge.
Released for Publication January 17, 1995.
Yates, Judge. Robertson, P.j., and Thigpen, J. concur.
The opinion of the court was delivered by: Yates
This is an appeal from an order denying an award of attorney fees.
Browning Ferris Industries ("BFI") sought to establish a waste transfer station on a piece of property that it owned in the Titusville community, in Birmingham, Alabama. The director of the Urban Planning Department of the City of Birmingham ("Planning Department") ruled that BFI's proposed use of the subject property complied with the City's zoning law and regulations and did not require approval of the Birmingham City Council.
The plaintiffs, six citizens who resided in the Titusville community, filed an application with the City of Birmingham Zoning Board of Adjustment ("Zoning Board"), seeking to appeal the ruling that the waste transfer station did not have to be approved by the City Council pursuant to a City ordinance requiring that certain uses, including "garbage, offal or dead animal reduction or dumping," be approved by the City Council.
Following a hearing, the Zoning Board voted to uphold the decision of the director of the Planning Department.
The plaintiffs then appealed to the Circuit Court of Jefferson County, naming the City of Birmingham, Mayor Richard Arrington, and the Zoning Board as defendants. They sought a judgment declaring that the chief planner for the Planning Department did not have the authority to interpret the City's zoning ordinance and that the City Council was required to approve BFI's occupancy and building permits regarding the subject property.
On July 1, 1993, BFI moved to intervene in the lawsuit, contending that it owned the property at issue and that its interests were not being adequately protected by the existing parties.
On September 3, 1993, Birmingham Mayor Richard Arrington moved to realign himself as a plaintiff.
On September 10, 1993, the trial court had a hearing on several pending motions. At that hearing, the Mayor's request to realign himself as a plaintiff was granted. Also, the City made an offer of judgment, pursuant to Rule 68, Ala. R. Civ. P., consenting to a judgment being entered against it, requiring the matter to be returned to the City Planning Commission and the City Council for further consideration.
The plaintiffs accepted the City's offer in open court. The trial court entered an order on September 13, 1993, returning the matter to the City for further consideration. On September 15, 1993, the plaintiffs filed a motion to alter or amend the judgment of the court to ...