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Meriwether v. Pike Road Volunteer Fire Protection Authority

Supreme Court of Alabama

June 14, 2019

W.R. Meriwether, Factors and Drayage, LLC, and Gregory P. Thompson
v.
Pike Road Volunteer Fire Protection Authority, a corporation, et al.

          Appeal from Montgomery Circuit Court (CV-18-901961)

          SELLERS, JUSTICE.

         A limited liability company, W.R. Meriwether, Factors and Drayage, LLC ("Meriwether"), and Gregory P. Thompson appeal from adverse judgments entered by the Montgomery Circuit Court in Meriwether and Thompson's action against the Pike Road Volunteer Fire Protection Authority, a corporation ("the Fire Authority"), and other defendants. We reverse the trial court's judgments and remand the cause for further proceedings.

         Meriwether and Thompson each own parcels of real property that adjoin a 10-acre piece of property owned by the Fire Authority. All three parcels are located in the Town of Pike Road ("Pike Road"). Pursuant to a Pike Road zoning ordinance, the parcels are located in an area zoned for "low density, single-family residential development." Materials submitted to the trial court indicate that the Fire Authority plans to build a fire station on its 10-acre parcel.[1]

         Meriwether and Thompson sued the Fire Authority and Pike Road, along with the members of the Fire Authority's board of directors, the Pike Road Planning Commission, the chairman of the Planning Commission, and the Pike Road planning director. In their complaint, Meriwether and Thompson sought a judgment declaring that the Fire Authority is subject to the referenced zoning ordinance and that constructing a fire station on its property would be a violation of that ordinance.

         Pike Road, the Pike Road planning director, the Pike Road Planning Commission, and the chairman of the planning commission answered Meriwether and Thompson's complaint and, thereafter, filed a motion for a judgment on the pleadings. The other defendants filed a motion to dismiss the action. Each of the defendants argued, among other things, that the Fire Authority is exempt from the Pike Road zoning ordinance. The trial court agreed and granted both motions, entering separate judgments dismissing the action. This appeal followed.

         In 2007, this Court stated:

"It was once 'well settled that city zoning ordinances [did] not apply to the operation of a governmental function by a governing body, as opposed to a proprietary function.' Lane v. Zoning Bd. of Talladega, 669 So. 2d 958, 959 (Ala. Civ. App. 1995) .... See City of Birmingham v. Scogin, 269 Ala. 679, 690, 115 So. 2d 505, 514 (1959) ('The Alabama cases have long held that zoning does not apply to the operation of a governmental function by a municipality.'); Lauderdale County Bd. of Educ. v. Alexander, 269 Ala. 79, 86, 110 So. 2d 911, 918 (1959) ('If a city engaged in a governmental function is not subject to its own zoning regulations, certainly a county engaged in a governmental function is not subject to a city's zoning regulations.'); Water Works Bd. of Birmingham v. Stephens, 262 Ala. 203, 78 So. 2d 267');">78 So. 2d 267 (1955); Alabama Alcoholic Beverage Control Bd. v. City of Birmingham, 253 Ala. 402, 44 So. 2d 593 (1950)."

City of Selma v. Dallas Cty., 964 So. 2d 12');">964 So. 2d 12, 16 (Ala. 2007) (emphasis omitted). According to the Court in City of Selma, the exemption from zoning regulation for the operation of a governmental function by a governing body remains intact: "[N]either the judiciary nor the legislature has heretofore manifested an intent to abrogate the immunity from zoning ordinances that has long been afforded to political subdivisions in the operation of their governmental functions." 964 So. 2d at 19 (emphasis omitted). The question in the present case is whether the Fire Authority qualifies as a "governing body" or a "political subdivision" that, if engaged in governmental functions, is exempt from zoning ordinances. City of Selma, 964 So. 2d at 16, 19. We apply a de novo standard of review to that question of law. See Alabama Republican Party v. McGinley, 893 So. 2d 337, 342 (Ala. 2004) (de novo standard applies where there are no factual disputes and the issue to be resolved is one of law).[2]

         According to the parties, the Fire Authority was duly created pursuant to § 11-88-1 et seq., Ala. Code 1975, which allows for the creation of public corporations, known as "authorities," to provide water, sewer, or fire-protection services.[3] The materials submitted to the trial court indicate that, with the approval of the Montgomery County Commission, the Fire Authority was formed in 1992 by three resident owners of property located in a then unincorporated area in Montgomery County. See § 11-88-3, Ala. Code 1975 (allowing resident property owners desiring to create an authority under Title 4, Chapter 88, to apply to "the governing body of that county in which the area or areas to be served by the proposed authority is located").[4]

         The exemption from zoning regulation has been applied in Alabama to the governmental functions of counties and municipalities. See City of Selma, 964 So. 2d at 19; Lane v. Zoning Bd. of Adjustment of Talladega, 669 So. 2d 958, 959 (Ala. Civ. App. 1995); City of Birmingham v. Scogin, 269 Ala. 679, 690, 115 So. 2d 505, 514 (1959). It also has been applied to the governmental functions of county and city boards of education. Lauderdale Cty. Bd. of Educ. v. Alexander, 269 Ala. 79, 86, 110 So. 2d 911, 917 (1959); Alves v. Board of Educ. for Guntersville, 922 So. 2d 129');">922 So. 2d 129, 133 (Ala. Civ. App. 2005). Notably, county and city boards of education have been described as "agencies of the state." Enterprise City Bd. of Educ. v. Miller, 348 So. 2d 782, 783 (Ala. 1977).

         We acknowledge that some of the reasoning set out in Water Works Board of Birmingham v. Stephens, 262 Ala. 203, 208, 78 So. 2d 267');">78 So. 2d 267, 272 (1955), might possibly be read to suggest that a municipal waterworks board created pursuant to § 11-50-230 et seq., Ala. Code 1975, can be considered a governing body or political subdivision for purposes of an exemption from zoning regulation. The Court in Stephens, in discussing that exemption, described a waterworks board formed under the predecessor to § 11-50-230 et seq. as "an agency of the city" and stated that the board was "to be treated in the same light as the city itself." 262 Ala. at 209, 78 So. 2d at 272. Ultimately, however, the Court determined that the waterworks board, in selling water services, was exercising a proprietary function and therefore could not be exempt from zoning laws. It appears, however, that the Court's discussion of the zoning exemption in Stephens was dicta. We also note that more recent precedent states that a waterworks board formed under § 11-50-230 et seq. is "not a mere agency of the [municipality it serves] but a public corporation entirely separate and independent from [that municipality]." Water Works Bd. of Arab v. City of Arab, 231 So. 3d 265, 272 (Ala. 2016).[5]

         There is support for the appellees' assertion that the Fire Authority's functions could be described as "governmental" in nature. For example, § 11-88-2, Ala. Code 1975, provides that § 11-88-1 et seq. "is intended to aid the state in the execution of its duties." Section 11-88-7(15), Ala. Code 1975, gives authorities created therein the power of eminent domain. Section 11-88-15, Ala. Code 1975, expressly declares the furnishing of fire-protection services by an authority a governmental function for purposes of immunity from tort liability. See also State ex rel. Hyland v. Baumhauer, 244 Ala. 1, 8, 12 So. 2d 326, 330 (1942) (not involving the exemption from zoning regulation but nevertheless stating that "[a] fire department, when organized and functioning, is performing a governmental rather than a proprietary function"); § 9-3-18, Ala. Code 1975 (stating that volunteer fire departments are "public in nature, as they protect the health, safety, and welfare of the public"); Ala. Const. 1901, Local Laws, Montgomery County § 5 ("[A]ll volunteer fire departments ... are organizations that are public in nature and serve to protect the health, safety, and welfare of the citizens of Montgomery County."); City of Selma, 964 So. 2d at 19 (stating that governmental functions include the promotion of public health and safety). We are not convinced, however, that, because the Fire Authority engages in functions that can be described as traditionally "governmental" in nature, the Fire Authority necessarily is a governing body or political subdivision for purposes of the exemption from the zoning ordinance. Cf. Limestone Cty. Water & Sewer Auth. v. City of Athens, 896 So. 2d 531');">896 So. 2d 531, 537 (Ala. Civ. App. 2004) ("Possessing certain powers normally associated with the State does not necessarily make an entity part of the State.").[6]

         Authorities created pursuant to § 11-88-1 et seq. are incorporated by natural persons. See § 11-8-4, Ala. Code 1975 (providing that, after the appropriate county's governing body approves an application by three or more residents who own property in the area to be served, the applicants "shall proceed to incorporate an authority by filing for record in the office of the judge of probate of the determining county a certificate of incorporation"). Although the members of the Fire Authority's board of directors are chosen by the Montgomery County Commission, they cannot be officers of the state or of any county or municipality. § 11-88-6(c), Ala. Code 1975. Rather, they must be "duly qualified elector[s] of [the] county [in which the Fire Authority's service area is located] and shall be [residents] of and the owner[s] of real property in that part of the service area of the [Fire Authority] which lies within that county." § 11-88-6(d), Ala. Code ...


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