City of Hoover v. Covenant Bank

251 So. 3d 50
CourtCourt of Civil Appeals of Alabama
DecidedApril 28, 2017
Docket2160044
StatusPublished

This text of 251 So. 3d 50 (City of Hoover v. Covenant Bank) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Hoover v. Covenant Bank, 251 So. 3d 50 (Ala. Ct. App. 2017).

Opinions

THOMPSON, Presiding Judge.

*51The City of Hoover ("Hoover") appeals from a judgment of the Jefferson Circuit Court ("the trial court") in favor of Covenant Bank ("Covenant"). The judgment enjoined Hoover from, among other things, enforcing its zoning ordinance in a manner that prevented a proposed use of certain property.

The record indicates the following. Covenant owns real property located on the corner of Highway 119 and Doug Baker Boulevard in Shelby County ("the property").1 The property is located within Hoover's geographic boundaries. Covenant entered into a contract to sell the property to High Tide Oil Company ("High Tide") on the condition that Covenant obtain conditional-use approval from Hoover for a gasoline station with a convenience store on the property. The property is zoned as being within a "C-2 Community Business District" pursuant to Article VI, Section 11, of the Zoning Ordinance of Hoover ("the zoning ordinance"). The zoning ordinance contains certain specified conditional permissible uses of the property after approval is obtained from Hoover, including use as a "gasoline service station."

Covenant filed an application to obtain a conditional-use permit to construct a gasoline station on the property at issue. In November 2014, Hoover's Planning and Zoning Commission ("the commission") held a public hearing on Covenant's application. The minutes from the hearing, which were admitted into evidence and are included in the record before this court, indicate that ten owners of nearby homes and businesses spoke in opposition to the application. John Ritchey, who lives in the house directly behind the site of the proposed gasoline station, expressed concern about "the noise and the traffic and the lighting." He also told the commission he was "very concerned with spillage" that will drain onto his property, including the creek on his property. Another homeowner raised concerns about the public-health risks posed by a gasoline station, not just from tank leakage but from small spills that routinely occur when people fill the gasoline tanks of their vehicles. Another person spoke out about the health risks from the exhaust of idling cars and trucks, the smell of gasoline fumes, and the smell of the dumpster that would be located at the gasoline station. A number of people who live and work in the area were concerned about the traffic congestion a gasoline station would bring to the area, environmental concerns, and the risk of an increase in crime. It was pointed out that there were several other gasoline stations within a mile of the proposed site. One man, a quadriplegic, voiced his concerns that, with the increased chances of fire and crime, he would have difficulties protecting himself if something were to happen at the gasoline station. He also talked about the difficulty he would have sleeping because of the increased lighting at the gasoline station. At the close of the hearing, the commission recommended by a vote of four to three that the Hoover City Council ("the city council") approve Covenant's application for the conditional-use permit subject to certain specified restrictions. Those restrictions were acceptable to Covenant.

A city council "work session" was held on January 15, 2015, during which the proposed conditional-use permit was discussed. One of the council members asked *52Robert House, a member of the commission, whether Hoover had ever granted a conditional-use permit for a gasoline station located as close to a residential lot as the proposed gasoline station was to the house nearest the proposed site in this case. House explained that, although some gasoline stations had been "grandfathered in" in the annexation process, he did not believe that Hoover had approved one so close to a residence.

The city-council members noted that there had been "a lot of opposition" to the proposed gasoline station at the commission meeting. Council members also noted that the combination gasoline station/convenience store would probably apply for a license to sell alcoholic beverages. Again, House was asked whether Hoover had approved such applications for a business 50 feet from a residential neighborhood. House told the council members that there had "not been many."

On January 20, 2015, the city council held a public hearing to consider the conditional-use permit for the proposed gasoline station/convenience store. According to the minutes from the public hearing, which were submitted into evidence and are included in the record on appeal, the attorney for Covenant, who is also representing it on appeal, gave a presentation in which he discussed the zoning ordinance and the uses permitted at the site of the proposed gasoline station. The minutes state that the attorney said that, in his opinion, some of the permitted uses "would be much worse than what [Covenant was] proposing." The attorney noted that the zoning ordinance prohibited a car wash or automobile-repair work, oil changes, and the like at the site. He also described the building as a "typical glass and brick type of convenience store that will dispense gasoline," and he stated that all regulations and requirements pertaining to a gasoline station would be met. The attorney explained that the request for the conditional-use permit for the gasoline station was in compliance with the zoning ordinance and that he knew of no other conditions that would compel the city council to do anything other than grant the permit. No one else spoke in favor of the conditional-use permit.

Two people spoke against granting the permit during the hearing. Don Erwin, who represented the Barber Companies, which owns the shopping center across the street from the proposed gasoline station, provided the city council with a list of objections. Erwin said that the proposed use was too intensive for the area because, he said, it would entail increased traffic, night lighting, gasoline and beer trucks, and similar problems. According to the minutes of the hearing, Erwin also said that Hoover had a "long history" of not locating gasoline stations next to residential areas and that, if the permit were granted, the city council would be going against that practice. He also stated that the Barber Companies could not find anyone in the neighborhood who supported the proposed use, although, he said, there were many who opposed it. Finally, Erwin said that the proposed use was "so inappropriate" that the Barber Companies thought it had to oppose the development even though it had never before come out publicly against a commercial development.

Randy Haddock of the Cahaba River Society also spoke against the proposed gasoline station. He discussed the problem with potential increased runoff of storm water at the site when the site was paved, which could cause flooding problems. After hearing the presentations made during the public hearing, four of the city-council members present voted against granting *53Covenant's request for a conditional-use permit and one abstained.

On April 8, 2015, Covenant filed a petition in the trial court for a writ of mandamus and a declaratory judgment. Covenant named as respondents Hoover and seven city-council members. The city-council members were later dismissed by consent.

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Bluebook (online)
251 So. 3d 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-hoover-v-covenant-bank-alacivapp-2017.