Rel: July 3, 2025
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA SPECIAL TERM, 2025
_________________________
SC-2024-0810 _________________________
790 Montclair, LLC
v.
Birmingham Metro, LLC; The City of Birmingham; The Station at Crestline Heights, LLC; Valley National Bank; Alabama Hoops RE, LLC; FirstBank; Trinity Montclair 800, LLC; Trinity Montclair 820, LLC; and Birmingham Metro Baptist Association
Appeal from Jefferson Circuit Court (CV-23-903446)
SELLERS, Justice. SC-2024-0810
790 Montclair, LLC, appeals from a summary judgment in favor of
Birmingham Metro, LLC, and others in its action seeking to invalidate a
subdivision plat known as the "Arbor Terrace Resurvey No. 1" ("the
subdivision plat"), which was approved by the City of Birmingham
Planning Commission ("the Commission"). 1 We affirm.
I. Facts
In 2020, Birmingham Metro purchased a 75-acre tract of real
property, which encompassed a former medical center, with the intent of
developing the property into a multiuse campus with residential,
medical, and community-oriented retail and cafe spaces known as
Crestline Heights. Schoel Engineering Company, Inc., acting on behalf
of Birmingham Metro, prepared the subdivision plat, the application for
subdivision, and a list of adjacent property owners for notice and
submitted them to the Commission for approval. It is undisputed that
790 Montclair was an adjacent property owner but that its name was not
1According to 790 Montclair, the other named appellees are entities
that own property or have an interest in property embraced by or abutting the subdivision plat, as well as the City of Birmingham, which approved the subdivision plat through the Commission; those entities are: The Station at Crestline Heights, LLC; Valley National Bank; Alabama Hoops RE, LLC; FirstBank; Trinity Montclair 800, LLC; Trinity Montclair 820, LLC; and Birmingham Metro Baptist Association. 2 SC-2024-0810
included on the notice list that Schoel submitted to the Commission.
Thus, 790 Montclair did not receive actual notice of the public hearing on
the proposed subdivision that occurred on November 18, 2020. Following
the public hearing, there being no objections from the other adjoining
property owners, the Commission unanimously approved the subdivision
plat. It was subsequently recorded in the Jefferson County Probate
Office on December 1, 2020. On September 27, 2023, 790 Montclair
commenced an action pursuant to § 35-2-58, Ala. Code 1975, 2 seeking to
annul or invalidate the subdivision plat based on its failure to receive
written notice of the public hearing on the proposed subdivision. Both
sides filed cross-motions for a summary judgment. Following a hearing,
the trial court entered a summary judgment in favor of the defendants,
finding, in relevant part, that 790 Montclair had failed to establish its
claim to annul or invalidate the subdivision plat. This appeal followed.
II. Standard of Review
This Court reviews a summary judgment de novo, and we use the
same standard used by the trial court to determine whether the evidence
2Section 35-2-58, Ala. Code 1975, vests circuit courts with jurisdiction and power "to vacate and annul any map, plat, or survey of lands …." 3 SC-2024-0810
presented to the trial court presents a genuine issue of material fact.
Nettles v. Pettway, 306 So. 3d 873, 875 (Ala. 2020). "On motion for
summary judgment the burden is upon the movant to show that no
genuine triable issue of material fact exists." Amason v. First State Bank
of Lineville, 369 So. 2d 547, 552 (Ala. 1979). In this case, both sides
moved for a summary judgment on the issue whether Birmingham Metro
had strictly complied with the requirements of the City's subdivision
regulations and § 11-52-32(a), Ala. Code 1975, regarding notice to
adjoining property owners. When cross-motions for a summary judgment
are filed, "the burden remains on each movant to establish the propriety
of the court entering summary judgment on its own motion." Id. "The
fact that the first party fails to carry the burden on [its] motion does not
necessarily mean that the other party has carried the burden under [its]
own motion and should be granted summary judgment." Id. "Where
cross-motions for a summary judgment are filed in the trial court, the
party whose motion was not granted is entitled to have that motion
reviewed on an appeal from the grant of the opponent's motion."
Mountain Lakes Dist. v. Oak Grove Methodist Church, 126 So. 3d 172,
180 (Ala. Civ. App. 2013).
4 SC-2024-0810
III. Discussion
The dispositive issue presented in this appeal is whether 790
Montclair met its burden of demonstrating by substantial evidence that
the subdivision plat at issue is due to be annulled or invalidated based
on Birmingham Metro's alleged failure to strictly comply with the City's
subdivision regulations and § 11-52-32(a) regarding notice to adjoining
property owners.
A planning commission's power to regulate subdivisions is derived
by statute. See § 11-52-31(a), Ala. Code 1975 ("[T]he municipal planning
commission shall adopt subdivision regulations governing the
subdivision of land within its jurisdiction."). "In exercising its function
approving or disapproving any particular subdivision plat, [a planning
commission] acts in an administrative capacity, and is bound by any
limitations on its authority contained in the legislation authorizing it to
act, as well as any restrictions contained in its own regulations." Boulder
Corp. v. Vann, 345 So. 2d 272, 275 (Ala. 1977). Relevant here, Article
3.2(C) of the City's subdivision regulations provides that, to obtain a
hearing on a proposed subdivision, "the subdivider shall submit" a "[l]ist
of owners of property adjoining the proposed subdivision, with names and
5 SC-2024-0810
addresses as shown in the County Tax Assessor's office." Similarly, § 11-
52-32(a), regarding the procedure for approving or disapproving a
subdivision plat, provides:
"[T]he municipal planning commission shall approve or disapprove a plat within 30 days after the submission thereof to it; otherwise, the plat shall be deemed to have been approved, and a certificate to that effect shall be issued by the municipal planning commission on demand; provided, however, that the applicant for the municipal planning commission's approval may waive this requirement and consent to an extension of such period. The ground of disapproval of any plat shall be stated upon the records of the municipal planning commission. Any plat submitted to the municipal planning commission shall contain the name and address of a person to whom notice of a hearing shall be sent, and no plat shall be acted on by the municipal planning commission without affording a hearing thereon. Notice shall be sent to the address by registered or certified mail of the time and place of the hearing not less than five days before the date fixed therefor. Similar notice shall be mailed to the owners of land immediately adjoining the platted land as their names appear upon the plats in the county tax assessor's office and their addresses appear in the directory of the municipality or on the tax records of the municipality or county."
(Emphasis added.)
This Court has not had the opportunity to address that portion of §
11-52-32(a) regarding notice to adjoining property owners. However, we
have previously held that the "procedural requirements contained in
statutes and regulations adopted pursuant to … enabling statutes" are 6 SC-2024-0810
to be strictly construed. Kennon & Assocs., Inc. v. Gentry, 492 So. 2d
312, 317 (1986). In Kennon, this Court interpreted the notice
requirements of a zoning ordinance mandating, in relevant part, that the
Phenix City Building Department " 'send, by registered mail, a letter
notifying the adjacent property owners of the action pending.' " Id. at 315
(emphasis omitted). Because there were adjacent landowners who did
not receive notice of the rezoning action by registered mail, the trial court
entered a judgment invalidating the rezoning action. In affirming that
judgment, this Court explained that, "where there had been a failure to
strictly follow the procedural requirements applicable to the action
sought, especially notice provisions, this Court has invalidated … the
action taken, irrespective of whether any person was prejudiced by the
error or omission." Id. at 318. Relying on Kennon, 790 Montclair argues
that the failure to provide notice of the public hearing in and of itself is
sufficient to invalidate the subdivision plat in this case. 790 Montclair
also posits that the only plausible meaning of the notice provision in the
subdivision regulations is that, where land is to be subdivided, all owners
of adjoining land must be provided notice of a public hearing to voice their
objections. However, Kennon is distinguishable based on the language
7 SC-2024-0810
of the zoning ordinance at issue in that case. In addition to the statutory
notice requirements of § 11-52-77 and § 11-52-78, Ala. Code 1975, the
zoning ordinance in that case mandated notice by registered mail to " 'the
adjacent property owners of the action pending.' " 492 So. 2d at 315
(emphasis omitted). The zoning ordinance did not specify where the list
of adjoining property owners for notice was to be derived; rather, it placed
a strict burden on the city to notify all adjoining property owners,
presumably using its best efforts to ascertain their identities. Unlike the
zoning ordinance in Kennon, the City's subdivision regulations in this
case, as well as § 11-52-32(a), contain additional language regarding
notice. Specifically, the subdivision regulations require that, to obtain a
public hearing, the subdivider shall present a "[l]ist of owners of property
adjoining the proposed subdivision, with names and addresses as shown
in the County Tax Assessor's office." (Emphasis added.) Section 11-52-
32(a) provides that similar notice "shall be mailed to the owners of land
immediately adjoining the platted land as their names appear upon the
plats in the county tax assessor's office and their addresses appear in the
directory of the municipality or on the tax records of the municipality or
county." (Emphasis added.) Thus, the subdivision regulations and § 11-
8 SC-2024-0810
52-32(a) specify where the list of adjoining property owners is to be
obtained and places the duty of acquiring that information on the
subdivider to supply to the City. Although strict compliance with the
notice requirements for zoning and subdivision hearings is critical, such
compliance may vary depending on the specific language of the
applicable regulation, ordinance, or statute. In this case, both the
subdivision regulations and § 11-52-32(a) require notice only to the
adjacent landowners as their names and addresses are shown in the
county tax assessor's office or as their names appear upon the plats in
the county tax assessor's office and their addresses appear in the city
directory or on the tax records of the city or county, respectively. Thus, §
11-52-32(a) contemplates that adjoining-property-owner information
may not always be available from the county tax assessor's office; in such
a case, strict compliance with the statute is still possible. As Birmingham
Metro points out, had the legislature intended for all adjoining property
owners to receive notice of a public hearing, it could have drafted § 11-
52-32(a) like the zoning ordinance at issue in Kennon. By failing to do
that, it is clear, as indicated at oral argument, that the impact of a zoning
ordinance, by restricting the use of large segments of property, is more
9 SC-2024-0810
impactful. See Roberson v. City of Montgomery, 285 Ala. 421, 425, 233
So. 2d 69, 72 (1970) (noting that zoning and planning are not
synonymous: "Broadly speaking, 'planning' relates to the systematic and
orderly development of a community with particular regard for streets,
parks, industrial and commercial undertakings, civic beauty and other
kindred matters properly within police power. 'Zoning' is primarily
concerned with the regulation of the use of property, to structural and
architectural designs of buildings, and the character of use to which the
property or the buildings within classified or designated districts may be
put."). Thus, the notice requirements for a public hearing on a proposed
subdivision mandated in the subdivision regulations and § 11-52-32(a),
as strictly construed, merely require notice to adjoining landowners as
their names and addresses appear on a database maintained by city and
county officials.
In this case, both sides dispute whether 790 Montclair's ownership
information, specifically its name and address, was available in the
Jefferson County Tax Assessor's Office at the time Schoel generated its
list of adjoining property owners to submit to the City in 2020. In support
of its motion for a summary judgment, 790 Montclair relied on the
10 SC-2024-0810
affidavit of one of its principles, Ryan Medo, who stated, in relevant part,
that 790 Montclair purchased its parcel in December 2018 and that, since
that time, he has received yearly tax notices from the county tax
assessor's office. Medo attached to his affidavit a print out of a "Record
Summary" from the "Jefferson County Tax Administration," which, he
says, he obtained from the county's website in September 2024. The
record summary indicates the ownership history for the 790 Montclair
parcel for the tax years 2020 through 2025, specifically listing the parcel
number, the owner of the parcel, and the address for the parcel. In
response, Birmingham Metro asserts that, in 2020, it had no knowledge
of 790 Montclair's identity and that 790 Montclair "glosses" over the fact
that, to generate the record summary produced by Medo, one has to know
that 790 Montclair is the property owner; otherwise, the record summary
is not readily obtainable from the city or county records. 790 Montclair
does not address Birmingham Metro's response. Rather, 790 Montclair
states that it "disputes [that] assertion, … and there is no evidence in the
record to support it." 790 Montclair's reply brief at 15 n.2. But that is
incorrect, because, as indicated below, there is ample evidence in the
record to support the assertion that, at the time the public hearing was
11 SC-2024-0810
noticed, the city and county records did not list 790 Montclair as an
adjoining property owner.
In fact, to support its motion for a summary judgment, Birmingham
Metro relied on the testimony of its expert, Joseph F. Breighner, Jr., who
served as the chief land surveyor for Schoel from 1998 until 2022.
Breighner testified regarding the standards and practices applicable to
surveyors within the City and the procedures generally followed by
Schoel in the preparation of subdivision plats. Regarding notice,
Breighner testified that the purpose of providing the Commission with a
list of adjacent landowners is to notify those owners of public hearings on
proposed subdivisions. He also stated that Schoel obtains adjacent-land
owner information from the Jefferson County Tax Assessor's Office and
that, if needed, Schoel also uses the City of Birmingham's "GIS" online
mapping program, as well as an independent system referred to as the
Jefferson County "Courthouse Retriever System," which requires a
license to use. Breighner stated that Schoel's standard practice is to use
all three systems to obtain adjacent-landowner information, unless that
information can be found solely in the county tax assessor's records.
Breighner finally stated that no one at Schoel has control over whether
12 SC-2024-0810
the information contained in the tax assessor's office is correct. Thus,
Birmingham Metro contends that the fact that 790 Montclair did not
receive notice of the public hearing was not because of any act or omission
of the part of Schoel but, rather, appears to be the result of issues
contained within the records kept by Jefferson County and the City. By
way of example, Birmingham Metro states that, when Schoel generated
its list of adjoining property owners to submit to the City in 2020, the
county tax assessor's records were completely devoid of any ownership
information for 790 Montclair's parcel. Birmingham Metro also states
that the City's "GIS online mapping system" contained only a parcel-
identification number with no ownership or address information for 790
Montclair's parcel. Notably, Medo's deposition is also in the record and
was summarized during the summary-judgment hearing. As indicated,
790 Montclair purchased its parcel in December 2018. In his deposition,
Medo acknowledged that exhibit 29, a "tax map record" from the county
tax assessor's office, dated March 27, 2018, listed no owner or address
information for 790 Montclair's parcel. According to Medo, as part of the
closing process, either he or his closing attorney would have updated 790
Montclair's ownership information with the tax assessor's office but that
13 SC-2024-0810
he did not know "if it ever was not updated." Finally, Medo acknowledged
that exhibit 31, another tax-assessor record dated August 2, 2024, listed
no owner or address information for 790 Montclair's parcel.
Based on the foregoing, we conclude that 790 Montclair failed to
meet its burden of demonstrating that Birmingham Metro, through
Schoel, failed to strictly comply with the City's subdivision regulations or
§ 11-52-32(a) regarding notice to adjoining property owners. The print
out of the record summary that Medo obtained from the "Jefferson
County Tax Administration," without any specific information regarding
how that report was generated, does not substantially demonstrate that
790 Montclair's name and address were available in the county tax
assessor's office in 2020. As Birmingham Metro points out, to generate
the record summary, one would presumably need to know 790 Montclair's
identity to enter on the county's website. Furthermore, as noted, Medo
acknowledged in his deposition that an August 2024 tax record from the
county tax assessor's office listed no owner or address information for 790
Montclair's parcel. Thus, 790 Montclair was not entitled to a summary
judgment as a matter of law. Birmingham Metro, on the other hand,
offered substantial evidence indicating that Schoel had strictly complied
14 SC-2024-0810
with the City's subdivision regulations and § 11-52-32(a) regarding notice
to adjoining landowners. It seems apparent from the record that Schoel's
chief land surveyor obtained a list of adjoining property owners strictly
in accord with the City's subdivision regulations and § 11-52-32(a). As
previously noted, the subdivision regulations required Schoel to provide
a list of adjoining property owners with "names and addresses as shown
in the County Tax Assessor's office." Section 11-52-32(a) required that
similar notice "shall be mailed to the owners of land immediately
adjoining the platted land as their names appear upon the plats in the
county tax assessor's office and their addresses appear in the directory of
the municipality or on the tax records of the municipality or county."
Birmingham Metro's expert testified that Schoel's practice is to obtain
adjacent-landowner information from the Jefferson County Tax
Assessor's Office and that, if needed, he has two additional sources from
which to access that information. There is no evidence to suggest that
Schoel did not strictly comply the procedures mandated by the
subdivision regulations or § 11-52-32(a) in obtaining adjoining-
landowner information to submit to the City such that the recorded
subdivision plat in this case should to be annulled or invalidated.
15 SC-2024-0810
IV. Conclusion
Birmingham Metro demonstrated by substantial evidence that
Schoel had strictly complied with the City's subdivision regulations and
§ 11-52-32(a) regarding notice to adjoining landowners. Thus, the
summary judgment in favor of the defendants is affirmed.
AFFIRMED.
Mendheim and McCool, JJ., concur.
Shaw and Wise, JJ., concur in the result.
Cook, J., concurs in the result, with opinion, which Stewart, C.J.,
and Lewis J., join.
Bryan, J., dissents, with opinion.
16 SC-2024-0810
COOK, Justice (concurring in the result).
I agree with this Court's decision to affirm the summary judgment
in favor of Birmingham Metro, LLC, and the other defendants. However,
because I do not believe that 790 Montclair, LLC, had standing, I see no
reason to reach the question of whether Birmingham Metro sufficiently
complied with the relevant notice requirements. Therefore, I concur in
the result.
In "public-law cases," such as this case, standing is a necessity for
a court to obtain subject-matter jurisdiction. See Ex parte BAC Home
Loans Servicing, LP, 159 So. 3d 31, 44 (Ala. 2013); State v. Property at
2018 Rainbow Dr., 740 So. 2d 1025, 1028 (Ala. 1999). To determine
whether a plaintiff has standing, our courts employ the test set forth by
the United States Supreme Court in Lujan v. Defenders of Wildlife, 504
U.S. 555, 112 (1992). See Ex parte King, 50 So. 3d 1056, 1059 (Ala. 2010).3
3I have previously questioned whether we should continue to follow
Lujan. See, e.g., Hanes v. Merrill, 384 So. 3d 616, 623 (Ala. 2023) (Cook, J., concurring specially) (stating that "this Court should consider, in the right case, the proper standard for standing under the Alabama Constitution" and that we "should not simply adopt the federal standard without considering any relevant differences between the Alabama Constitution and the Constitution of the United States"). However, none of the parties in this case have questioned our Court's adoption of Lujan as a means of determining standing in Alabama. I therefore see no reason 17 SC-2024-0810
Lujan requires plaintiffs to demonstrate the following:
"First, the plaintiff must have suffered an 'injury in fact' -- an invasion of a legally protected interest which is (a) concrete and particularized, and (b) 'actual or imminent, not "conjectural" or "hypothetical." ' Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be 'fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.' Third, it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.' "
504 U.S. at 560-61 (citations and footnote omitted; emphasis added).
790 Montclair fails the very first element of standing. Even today,
it has not sufficiently identified an "actual, concrete and particularized
'injury in fact' " that it has suffered as a result of not receiving notice of
the public hearing. Alabama Alcoholic Beverage Control Bd. v. Henri-
Duvall Winery, LLC, 890 So. 2d 70, 74 (Ala. 2003).
For instance, at oral argument, 790 Montclair was directly asked:
"If you had gotten notice, would you have opposed the subdivision plat?"
Supreme Court of Alabama, Supreme Court O/A Montgomery, Alabama,
YouTube (June 4, 2025, 2:27-2:30) (at the time this decision was issued,
to consider the question of whether we should continue to follow Lujan or adopt a different test for standing. 18 SC-2024-0810
this oral-argument session could be located at:
https://www.youtube.com/watch?v=ZKZb0lZbatU) (emphasis added). In
response, 790 Montclair made no claim that it would have opposed the
subdivision plat. Instead, it merely answered that it was "entitled to
notice, as a matter of due process, and an opportunity to be heard to voice
any opinions, any objections, or even support for the subdivision …."
Supreme Court of Alabama, Supreme Court O/A Montgomery, Alabama,
YouTube (June 4, 2025, 2:27-2:49) (at the time this decision was issued,
https://www.youtube.com/watch?v=ZKZb0lZbatU) (emphasis added).
790 Montclair's answer actually suggests that it might have
"support[ed]" the project. This is the exact opposite of an "actual,
concrete and particularized 'injury in fact' " and is instead the absence of
even an allegation of injury in fact. See Kid's Care, Inc. v. Alabama Dep't
of Hum. Res., 843 So. 2d 164, 167 (Ala. 2002) (dismissing an appeal
because this Court "fail[ed] to see how the plaintiffs ha[d] been injured,"
explaining that, to establish standing, a plaintiff’s injury must be
"tangible" and that, when plaintiff " ' has not been injured by the wrong
alleged in the complaint, then no case or controversy is presented and the
19 SC-2024-0810
plaintiff has no standing to sue on his own behalf ….' " ) (citation omitted).
This answer is consistent with 790 Montclair's briefs on appeal. At
no point in those briefs does 790 Montclair point to any instance in the
record where it stated any actual objection, on the merits, to the
subdivision plat. See Ex parte BAC, 159 So. 3d at 40 (" ' " In determining
standing, the nature of the injury asserted is relevant to determine the
existence of the required personal stake and concrete adverseness." ' "
(citations omitted; final emphasis added)).
In other words, even years after the public hearing was held, years
after the approval of the subdivision plat, years after the filing of this
lawsuit, and long after the project was actually completed, 790 Montclair
cannot state that it would even have asked for anything different to have
occurred at the public hearing.
790 Montclair insists that it does not need to show prejudice and
can therefore proceed based on a purely procedural violation -- its failure
to receive notice -- even if it might have actually supported the project.
See Supreme Court of Alabama, Supreme Court O/A Montgomery,
Alabama, YouTube (June 4, 2025, 8:27-8:31) (at the time this decision
was issued, this oral-argument session could be located at:
20 SC-2024-0810
https://www.youtube.com/watch?v=ZKZb0lZbatU) (citing Kennon &
Assocs., Inc. v. Gentry, 492 So. 2d 312 (Ala. 1986)).
790 Montclair misses the point. Standing is a constitutional
requirement, and 790 Montclair must at least allege a concrete harm to
bring a claim. It has not made such an allegation. In fact, not only has
790 Montclair failed to allege that it would have opposed the subdivision
plat, it has also failed to allege that it would have said anything at the
public hearing or that it would have appeared at the public hearing had
it been given adequate notice.
790 Montclair asks our Court to direct the trial court to enter a
judgment vacating the subdivision plat, thus requiring a new public
hearing after the project has been completed -- without even supplying a
reason -- a futile, meaningless act. This is contrary to common sense and
our well-established caselaw.
And the equities are even worse. Here, the record indicates that
790 Montclair waited approximately seven months after construction on
the subdivision began before it first complained about not receiving
notice of the public hearing. This delay would also belie any claim of a
"tangible" injury.
21 SC-2024-0810
Because 790 Montclair fails to allege any "actual, concrete and
particularized 'injury in fact,' " it has failed to demonstrate that it had
standing to bring its suit below. It is for this reason that I would affirm
the trial court's judgment in this case.
Stewart, C.J., and Lewis, J. concur.
22 SC-2024-0810
BRYAN, Justice (dissenting).
I respectfully dissent. Under the relevant subdivision regulation
for the City of Birmingham ("the City"), "[n]otice by certified mail to the
subdivider and adjacent property owners, advising of the time and place
of [a] hearing [on a proposed subdivision,] shall be mailed not less than
seven days before the scheduled public hearing." Section 3.3, Subdivision
Regulations of the City. The City obtains a list of adjacent property
owners to whom notice is due from the subdivider proposing the
subdivision; that subdivider must provide a "[l]ist of owners of property
adjoining the proposed subdivision, with names and addresses as shown
in the County Tax Assessor's office." Section 3.2.C., Subdivision
Regulations of the City. In this case, it is undisputed that the plaintiff,
790 Montclair, LLC, was an owner of property adjacent to the proposed
subdivision but was not given notice of the public hearing on the proposed
subdivision. As I understand it, the key dispute is whether, when notice
was required to be given in 2020, the records of the Jefferson County Tax
Assessor identified 790 Montclair as an adjacent property owner and
provided 790 Montclair's address. If the tax assessor's records identified
790 Montclair as an adjacent property owner and provided its address,
23 SC-2024-0810
then certainly 790 Montclair would be entitled to notice under the
regulation. Because the record contains substantial evidence indicating
that the tax assessor's records identified 790 Montclair as an adjacent
property owner and provided its address at the relevant time, I would
reverse the Jefferson Circuit Court's summary judgment entered against
790 Montclair.
790 Montclair relies on the affidavit testimony of Ryan Medo and a
document attached thereto ("the record summary"); Medo obtained the
record summary by accessing records on the Jefferson County Tax
Assessor's website. Medo's affidavit states, in pertinent part:
"2. I am a Manager of RTO I, LLC, which is the Manager of 790 Montclair.
"3. 790 Montclair is the owner of real estate located at 790 Montclair Road in Birmingham ('790 Montclair's Property') ….
"4. 790 Montclair's Property abuts and is adjacent to the property embraced by the [relevant] subdivision plat ….
"….
"5. 790 Montclair did not receive notice of the public hearing held on November 18, 2020, on the [relevant] Subdivision Application … either by certified mail or any other method.
"…. 24 SC-2024-0810
"9. Attached hereto as Exhibit 1 is a copy of a Record Summary from Tax Year 2020 for 790 Montclair's Property which I obtained on September 6, 2024, from the Jefferson County Tax Assessor's Office through its online website https://eringcapture.jccal.org (the 'Record Summary').
"10. According to the attached Record Summary, as of 2020 the Jefferson County Tax Assessor's records showed the Owner of 790 Montclair's Property was 790 Montclair LLC and the address was 790 Montclair Rd Ste 215, Birmingham, AL 35213. This was the correct mailing address for 790 Montclair in 2020 and is currently the correct mailing address.
"11. The attached Record Summary lists the Ownership History for Tax Years 2020 through 2025, and for each year shows the Entity Name as 790 Montclair LLC and the Mailing Address as 790 Montclair Rd Ste 215, Birmingham AL 35213. The Tax Assessor's Record Summary lists the correct mailing address for each Tax Year from 2020 through 2025.
"12. Since 790 Montclair's purchase of its property in December 2018, 790 Montclair has timely received a tax notice from the Jefferson County Tax Assessor's Office every year, and 790 Montclair has timely paid the taxes due."
The record summary obtained by Medo from the tax assessor's
records identifies the parcel number for 790 Montclair's property,
identifies 790 Montclair as the owner of that property, and lists 790
Montclair's mailing address. As Medo further testified, the "ownership
history" listed in the record summary indicates that 790 Montclair was
25 SC-2024-0810
the owner of the property for each year between 2020 and 2025 and
identified 790 Montclair's mailing address for each of those years. This
is substantial evidence indicating that the tax assessor's records
identified 790 Montclair as the owner of the relevant property and
provided 790 Montclair's address.
The main opinion attacks this evidence by speculating about how
the record summary was generated and by citing other evidence that the
defendants believe undermine 790 Montclair's evidence. For example,
the main opinion notes that "Birmingham Metro also states that the
City's 'GIS online mapping system'[, which is one of the sources that
Schoel Engineering Company, Inc., Birmingham Metro's agent, uses in
attempting to locate adjacent landowners,] contained only a parcel-
identification number with no ownership or address information for 790
Montclair's parcel." ___ So. 3d at ___.4 It appears that the main opinion
is weighing the evidence to determine which side has the stronger
evidence. However, "[a]t the summary-judgment stage, it is not the trial
4If the City's GIS system contained the relevant parcel number, a
reasonable inference may be drawn that the parcel number could have been used to identify the owner and address of the property in the tax assessor's records given that the record summary identifies the parcel number, the owner, and the owner's address. 26 SC-2024-0810
court's function ' "to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial." ' " Nix
v. Franklin Cnty. Dep't of Hum. Res., 234 So. 3d 450, 456 (Ala. 2017)
(quoting Camp v. Yeager, 601 So. 2d 924, 927 (Ala. 1992), quoting in turn
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Of course, in
reviewing de novo the trial court's summary judgment, it is also not this
Court's function to weigh the evidence to determine the truth of the
matter; rather, we must evaluate whether there is a genuine issue of
material fact. See Ex parte Rizk, 791 So. 2d 911, 912 (Ala. 2000) ("An
appellate court reviewing a ruling on a motion for summary judgment
will, de novo, apply the[] same standards applicable in the trial court.").
Medo's affidavit and the attached record summary constitute substantial
evidence indicating that the tax assessor's records identified 790
Montclair as an adjacent property owner and provided its address at the
relevant time; that evidence creates a genuine issue of material fact
regarding the information that was available in the tax assessor's
records. Thus, I would reverse the trial court's summary judgment
entered against 790 Montclair.