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Ex parte Buck

Supreme Court of Alabama

October 27, 2017

Ex Parte Frank S. Buck and Martha Jane Buck
v.
CH Highland, LLC, and City of Birmingham In re: Frank Buck and Martha Buck

         Jefferson Circuit Court, CV-15-901463; Court of Civil Appeals, 2150220.

          PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS

          SHAW, JUSTICE.

         Frank 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.

         Facts and Procedural History

         The 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.

         Subsequently, the Zoning Advisory Committee recommended that the City Council approve a "QB-3 qualified community business district" with certain "Q conditions."[1] 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 from view.

         Highland 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.

         Before 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.

         At some 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 rezoning ordinance.

         On 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.

         Subsequently, 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.

         Highland 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, they argued:

"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."

         In 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 § 11-52-78. ..."

         Ultimately, 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 here."

         The 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).

         The 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.

         Standard of Review

         "On 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 ...


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