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Ex parte Odom

Supreme Court of Alabama

September 1, 2017

Ex parte Phillip D. Odom et al.
v.
Phillip D. Odom et al. In re: Robert Diercks and Carin Diercks

         Escambia Circuit Court, CV-15-900029; Court of Civil Appeals, 2151011

          PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS

          MAIN, Justice.

         Robert Diercks and Carin Diercks, residents of a subdivision located in Escambia County, purchased a vacant lot in the subdivision located directly behind their house and began construction of a garage on the lot. A group of homeowners in the subdivision ("the plaintiffs")[1] sued the Dierckses in the Escambia Circuit Court, contending that construction of the garage violated various restrictive covenants applicable to the lot. The trial court agreed. It entered a summary judgment in favor of the plaintiffs, enjoined the Dierckses from further construction on the garage, and ordered the removal of what had been constructed on the lot. On direct appeal, the Court of Civil Appeals reversed the judgment of the trial court, finding that the trial court had not properly applied the restrictive covenants. We granted certiorari to review that decision. For the following reasons, we reverse and remand.

         I. Facts and Procedural History

         The Second Alexander Heights Subdivision ("the subdivision") is located within the City of Brewton. The lots in the subdivision are subject to the following restrictive covenants:

"KNOW ALL MEN BY THESE PRESENTS: That Hines Realty Company, Inc., a corporation, the owner of Second Alexander Heights Addition to Escambia County, Alabama, a subdivision, as shown by plat of said subdivision recorded in Plat Book 5, Page 153, in the Office of the Judge of Probate of Escambia County, Alabama, do hereby adopt the following Protective Covenants with reference to the property located in said subdivision:
"1. Land Use and Building Type.
"A. Single family dwellings only and accessory structures customarily incidental to this use.
"B. All accessory structures must be of the same design and constructed of the same materials as the main dwelling house.
"C. The carports and garages must not open on or face toward the front of the lot.
"2. Size and Location of Structure.
"A. Dwelling house to contain a minimum of 1, 700 square feet of living space exclusive of carport, garage and/or open porches.
"B. House to be located on lot in accordance with zoning regulations of the City of Brewton, Alabama.
"3. Building lot to be a minimum of 100 feet in width at the front building line with the exception of Lots #17, #18, and #27."

         The main thoroughfare through the subdivision is Brooks Boulevard. Brooks Boulevard runs through the subdivision in roughly the shape of a circle, which is divided into northern and southern halves by Robin Drive. Building lots are located on both sides of Brooks Boulevard and Robin Drive. The Dierckses home is located on lot 47, which they purchased in 1993. Lot 47 fronts the north side of Robin Drive. In 2010, the Dierckses purchased lot 58, an unimproved lot located directly behind their home. Lot 58 fronts the south side of the northern half of Brooks Boulevard.

         In 2013, the Dierckses began efforts to construct a garage on lot 58. They hired a contractor and applied for a building permit for the structure. The application for a building permit, however, was denied by the City of Brewton on the basis that a city ordinance prohibits an accessory building from being located on a lot by itself. A city official met with the Dierckses and recommended that they combine lot 58 with their adjacent lot.

         On May 29, 2014, the Dierckses conveyed lots 47 and 58 to themselves in a combined metes and bounds description, subject to the restrictive covenants. The Dierckses also had the two lots combined into a single parcel for taxation purposes at the Escambia County tax assessor's office. The Dierckses, however, did not seek to have the subdivision formally "replatted" or to amend the existing plat.

         On June 2, 2014, the City of Brewton issued the Dierckses a building permit for the garage, and the Dierckses moved forward with construction. It is undisputed that the garage, once completed, will open onto and face Brooks Boulevard.

         On October 20, 2014, before the garage was completed, the City of Brewton halted construction of the garage on the basis that it was in violation of a city ordinance that limited the height of accessory structures to a maximum height of 15 feet. While the Dierckses were pursuing a variance to the height ordinance, the plaintiffs filed this lawsuit.[2] The lawsuit contended that the construction of the garage violated the restrictive covenants applicable to all lots in the ...


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