Ex Parte Frank S. Buck and Martha Jane Buck
CH Highland, LLC, and City of Birmingham In re: Frank Buck and Martha Buck
Circuit Court, CV-15-901463; Court of Civil Appeals, 2150220.
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
S. Buck and Martha Jane Buck, the plaintiffs in an action
below challenging the validity of a rezoning ordinance,
petitioned this Court for certiorari review of the decision
of the Court of Civil Appeals affirming the trial court's
judgment in favor of the defendants, CH Highland, LLC
("Highland"), and the City of Birmingham ("the
City") (hereinafter referred to collectively as
"the respondents"). Buck v. CH Highland,
LLC, [Ms. 2150220, June 10, 2016] __So. 3d __(Ala. Civ.
App. 2016). We reverse and remand.
and Procedural History
Bucks own real property located in the City. Frank operates a
law office in a former residential house located on the
property. Highland, a real-estate-development company,
intends to build a multistory apartment complex ("the
project") on property located adjacent to the Bucks'
property ("the subject property"). As planned, the
project did not conform with the then existing zoning
restrictions for the area in which the subject property was
located. Thus, on September 8, 2014, Highland submitted a
rezoning application to the Zoning Advisory Committee of the
Birmingham Planning Commission. Highland requested that the
subject property be rezoned from a "B-2 general business
district" to a "B-3 community business
district" so that it could construct the project.
the Zoning Advisory Committee recommended that the City
Council approve a "QB-3 qualified community business
district" with certain "Q
conditions." The recommended Q conditions included
the submission and approval of a site-development plan
covering numerous issues, including structure locations and
heights, fencing, landscaping, and shielding a parking garage
also submitted a request to the Planning and Zoning Committee
of the Birmingham City Council to rezone the subject property
from a B-2 district to a B-3 district. It appears that this
committee met several times, and Highland's application,
as well as the recommendation of the Zoning Advisory
Committee on Highland's application, was discussed. It
appears that on December 17, 2014, the application was
approved "contingent on [a] signed restrictions
agreement between the applicant and adjacent property
owner." The Bucks contend that the "adjacent
property owner" referred to was Temple Beth-El, a Jewish
synagogue. Further, like the Zoning Advisory Committee, the
Planning and Zoning Committee approved a QB-3 district with
the same Q conditions.
the application was approved, a "zoning notice"
indicating the existence of a proposed rezoning ordinance and
notice of a public hearing was published in the Birmingham
News on November 21, 2014. The notice stated that the subject
property would be rezoned from a B-2 district to a B-3
district. On November 28, 2014, a "synopsis of zoning
ordinance" was published, indicating that the City
Council would consider the adoption of an ordinance to change
the zoning of the subject property from B-2 to B-3. The
notices did not mention rezoning the subject property to a
QB-3 district or the existence of any Q conditions.
point, Highland and Temple Beth-El drafted and signed a
"memorandum of understanding" ("the
MOU"). The MOU discussed agreements between Highland and
Temple Beth-El regarding, among other things, the mitigation
of construction noise and the use of an alley, parking lots,
and Temple BethEl property during the construction of the
project. Additionally, the MOU included an agreement that any
rezoning ordinance regarding the subject property would
include Q conditions that would prohibit a list of property
uses that would ordinarily be permitted in a B-3 district.
Temple Beth- El's representative signed the MOU on
December 22, 2014. It appears from the record that the MOU
was not delivered to at least some members of the City
Council until the night before the December 30 hearing on the
December 30, 2014, the City Council held a public hearing to
consider the proposed rezoning ordinance. The transcript of
the hearing indicates that the proposed ordinance was
"amended" to include the Q condition suggested by
the Zoning Advisory Committee and the Planning and Zoning
Committee, as well as a Q condition incorporating the
property-use restrictions found in the MOU. The City Council
voted to adopt the amended proposed ordinance as Ordinance
1949-G, which rezoned the area in which the subject property
was located from a B-2 district to a QB-3 district. Ordinance
1949-G listed two "Q conditions": the requirement
to submit a site-development plan, as mentioned in the
recommendations of the Zoning Advisory Committee and the
Planning and Zoning Committee, and the list of prohibited
property uses found in the MOU.
the Bucks sued the City, the mayor, the City Council,
Highland, and several fictitiously named defendants,
alleging, among other things, that "[t]he actions by the
City and its Council, through its Council persons and Mayor,
and fictitious parties are violative of applicable statutory,
regulatory and the common laws of the state of Alabama."
The Bucks sought, among other things, declaratory and
injunctive relief. The mayor and the City Council members
were subsequently dismissed as defendants, and the Bucks'
case proceeded with the City and Highland as defendants.
filed a motion for a summary judgment, which the City joined.
Citing Ala. Code 1975, § 11-52-77 and § 11-52-78,
which govern publishing notice of proposed zoning ordinances,
"All required prerequisites for amending the Birmingham
Zoning Ordinance were strictly followed by the City Council.
... The proposed rezoning ordinance and notice of public
hearing were published in the Birmingham News on November 21,
2014, followed by publication of a synopsis of the proposed
ordinance on November 28, 2014."
response to the motion for a summary judgment, the Bucks
disputed whether proper notice had been published:
"The notices were published on November 21, 2014, and
November 28, 2014, respectively and gave notice of a change
from B-2 to B-3. However, at the public hearing, the noticed
change from B-2 to B-3 was amended so as to reflect that it
was subject to two Q conditions, one of which was based upon
a MOU between the developer [and] an adjoining property
owner, which said MOU was not executed until December 22,
2014, and not presented for consideration to the City until
the evening of December 29, 2014. The MOU was never presented
to the public. The transcript of the council hearing reflects
an amended ordinance based upon the MOU, which had not been
noticed in accordance with § 11-52-77 and §
the trial court entered a summary judgment for the
respondents. As to the Bucks' argument that the City
failed to properly publish notice of the proposed ordinance,
the trial court held:
"The [Bucks] ... argue that the City of Birmingham
failed to meet its statutory obligation to publish notice of
the proposed ordinance. The City did publish the requisite
notice in advance of the City Council's vote, however,
and the court agrees with the defendants that additional
notice was not required under the particular circumstances
Bucks appealed to this Court, and the appeal was transferred
to the Court of Civil Appeals. See Ala. Code 1975, §
12-2-7(6). On appeal in that court, the Bucks challenged the
trial court's judgment on several grounds, including
whether proper notice of Ordinance 1949-G was published as
required by § 11-52-77. The Bucks specifically argued,
among other things, that the ordinance as adopted was
different from the ordinance as proposed in that it "was
subject to two Q conditions" and that notice of the
adopted ordinance was not given under §§ 11-52-77
and -78. The Bucks further argued that the
"amended" ordinance was required to be published in
its "final form." On this issue, the Court of Civil
Appeals affirmed the trial court's judgment:
"[T]he Bucks contend that the circuit court erred by
concluding that §§ 11-52-77 and 11-52-78 did not
require the City to provide the Bucks 'new notice and a
new hearing.' Together, §§ 11-52-77 and
11-52-78 provide the notice requirements for the adoption of,
changes to, and amendments of zoning ordinances. Our supreme
court has held that the statutory 15-day notice requirements
contained in § 11-52-77 are mandatory. Kennon &
Assocs., Inc. v. Gentry, 492 So.2d 312, 315 (Ala. 1986);
see also Builders Dev. Co. v. City of Opelika, 360
So.2d 962, 964 (Ala. 1978); Alabama Alcoholic Beverage
Control Bd. v. City of Birmingham, 253 Ala. 402, 407, 44
So.2d 593, 597 (1950). ...
"The circuit court determined that the City had properly
published the requisite notice in advance of the city
council's vote and that no additional notice of the Q
conditions had been required. In City of Mobile v.
Cardinal Woods Apartments, Ltd., 727 So.2d 48, 54 (Ala.
1999), our supreme court affirmed the trial court's
judgment that had determined that a zoning ordinance was
invalid because the notice had failed to apprise the public
that the requested rezoning would allow not only specialty
shops but also a chain restaurant. The Cardinal
Woods court concluded that the notices in that case had
'tended only to "mislead."' 727 So.2d at 54
(citing 1 E. Zieglar, Jr., Rathkopf's the Law of
Zoning and Planning § 10.03 (1992)).
"In this case, the public was not similarly misled. The
published notice indicated that rezoning of the district
containing the subject property from B-2 to B-3 would be
considered. The Bucks do not dispute that that notice was
sufficient. Even though no notice was given of the contents
of the MOU or that the Q conditions would be required, the
published notice apprised interested persons 'how, and
for what, to prepare.' Id. The Bucks make no
argument that the intended use of the subject property
differed significantly because of the addition of the Q
conditions. Thus, we conclude that the circuit court did not
err by declining to conclude that the City had violated
§§ 11-52-77 and 11-52-78."
Buck, __So. 3d at__(footnote omitted).
Bucks sought certiorari review in this Court, raising
numerous challenges to the Court of Civil Appeals'
decision. This Court granted certiorari review on a single
issue: Whether notice of Ordinance 1949-G was properly
published pursuant to § 11-52-77 and § 11-52-78.
certiorari review, this Court accords no presumption of
correctness to the legal conclusions of the intermediate
appellate court." Ex parte Toyota Motor Corp.,
684 So.2d 132, 135 (Ala. 1996). "The law is well
established that a de novo standard applies to appellate
review of a trial ...