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Birmingham Planning Commission v. Laird

Alabama Court of Civil Appeals

February 23, 2018

Birmingham Planning Commission
v.
Andrew Laird, Charles Cleveland, and Dr. Peter Hendricks Altamont School
v.
Andrew Laird, Charles Cleveland, and Dr. Peter Hendricks

         Appeals from Jefferson Circuit Court (CV-16-904242)

          MOORE, JUDGE.

         In appeal number 2160898, the Birmingham Planning Commission ("the planning commission") appeals from a judgment entered by the Jefferson Circuit Court ("the circuit court") issuing a writ of mandamus to the planning commission directing it "to deny the application for the [proposed development of a] subdivision ... filed by the Brook Hill School." In appeal number 2160907, the Altamont School ("Altamont"), formerly known as the Brook Hill School, appeals from the circuit court's order denying its motion to intervene in the mandamus proceedings.

         Procedural History

         On August 18, 2016, Altamont submitted an application to the planning commission in which it sought approval to combine two lots in the Buckingham Place subdivision with one lot in the Clairmont Addition to Forest Park Sector Two subdivision to create "Buckingham Place Plat No. 2" ("the proposed subdivision"). On September 16, 2016, the planning commission's "subdivision committee"[1] approved Altamont's application for the proposed subdivision, subject to certain conditions. On September 27, 2016, Andrew Laird, Charles Cleveland, and Dr. Peter Hendricks ("the neighboring property owners"), all of whom own property in the Clairmont Addition to Forest Park Sector Two subdivision, filed a notice of appeal to the planning commission, pursuant to Section 3.11 of the Subdivision Regulations of the City of Birmingham ("the subdivision regulations") and § 11-52-32(d), Ala. Code 1975. After a hearing on November 6, 2016, the planning commission orally granted the application for the proposed subdivision.[2]

         On November 11, 2016, the neighboring property owners filed a petition in the circuit court requesting the court to issue a writ of mandamus to the planning commission directing it to deny Altamont's application for the proposed subdivision. The neighboring property owners attached documents in support of their mandamus petition. On December 6, 2016, the circuit court set the matter for a hearing to be held on January 5, 2017. On December 30, 2016, the planning commission filed a response to the mandamus petition; it did not submit any documents in support of its response. That same day, the planning commission filed a motion to continue the January 5 hearing, asserting that it had "submitted an hour and a half long recording of [the subdivision committee's] September 14, 2016, meeting ... to be transcribed" and that a continuance was necessary in order to have the transcription completed before the hearing; the circuit court granted that motion.

         On January 17, 2017, Altamont filed a motion to intervene in the action. On April 6, 2017, the neighboring property owners filed an objection to the motion to intervene. After a hearing, the circuit court entered an order on May 4, 2017, denying Altamont's motion to intervene. On May 8, 2017, the circuit court entered a judgment concluding that the planning commission had not complied with Section 3.12 of the subdivision regulations because "factual evidence provided to the Subdivision Committee or Planning Commission does not support the criteria established by the regulations." Specifically, the circuit court concluded, in pertinent part:

"The record attached to the Petition for Writ of Mandamus is void of factual evidence presented by the subdivider confirming the suitability of lands for the proposed consolidation. The evidence presented by the [neighboring property owners] demonstrates the adverse effects to the general welfare of surrounding subdivisions. This Court has been unable to locate in the record where the Subdivision Committee or the Planning Commission considered the reclassification of land, the consistency of land use, the detriment, if any, to adjacent property owners and the public, and the character of uses of adjacent property owners."

         The circuit court granted the mandamus petition and issued a writ directing the planning commission to deny Altamont's application for the proposed subdivision.

         On May 12, 2017, the planning commission and Altamont filed separate postjudgment motions. On May 22, 2017, the planning commission filed a supplement to its postjudgment motion, attaching the transcript of the hearing held before the planning commission's subdivision committee on September 14, 2016; that transcript indicated that it had been transcribed on May 15, 2017. On June 8, 2017, the neighboring property owners filed a response to the postjudgment motion and supplement thereto filed by the planning commission and moved to strike the transcript attached to the supplement. On June 22, 2017, the circuit court granted the motion to strike and denied the postjudgment motions filed by the planning commission and Altamont. On August 3, 2017, the planning commission and Altamont filed separate notices of appeal; this court consolidated the appeals, ex mero motu.

         Discussion

         Appeal No. 2160898

         On appeal, the planning commission argues that the circuit court erred in granting the petition for the writ of mandamus filed by the neighboring property owners because, it says, the planning commission's decision was not arbitrary and capricious.

"'Mandamus is an extraordinary remedy requiring a showing that there is: "'(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.'" Ex parte Leigeber, 623 So.2d 1068, 1071 (Ala. 1993) (quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala. 1991)). Because it is an extraordinary remedy, the standard of review is whether there has been a clear abuse of ...

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