W.R. Meriwether, Factors and Drayage, LLC, and Gregory P. Thompson
Pike Road Volunteer Fire Protection Authority, a corporation, et al.
from Montgomery Circuit Court (CV-18-901961)
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.
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.
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
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
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
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. 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
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).
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.
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
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