Roberson v. City of Montgomery

233 So. 2d 69, 285 Ala. 421, 1970 Ala. LEXIS 1044
CourtSupreme Court of Alabama
DecidedJanuary 22, 1970
Docket3 Div. 395
StatusPublished
Cited by18 cases

This text of 233 So. 2d 69 (Roberson v. City of Montgomery) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roberson v. City of Montgomery, 233 So. 2d 69, 285 Ala. 421, 1970 Ala. LEXIS 1044 (Ala. 1970).

Opinions

MADDOX, Justice.

The City of Montgomery filed this action, in equity, asking the court to enjoin respondents from operating automobile junk yards in two separate locations on the ground that such operations constituted “public nuisances” and that such operations violated city zoning ordinances. It was stipulated that both operations were located on land outside the corporate limits of Montgomery but within its police jurisdiction.

Upon final submission, the trial court found that the operation of the junk yards constituted public nuisances and that the city was entitled to enforce its zoning ordinances outside its corporate limits. One of the parcels was zoned “business” and the other “residential.” The main question presented by this appeal, and the question which will be dispositive of this appeal, is: “Did the trial court err in finding that the City of Montgomery was entitled to enforce its zoning ordinances outside its corporate limits?” After careful study of our statutes dealing with municipal zoning and planning, we must conclude that the trial court did err and that enabling legislation from which the city derives its power to en[423]*423act zoning regulations did not authorize the city to enforce zoning beyond the municipal corporate limits.

The city contends that it has authority to enforce its zoning ordinances outside its corporate limits under the provisions of Title 37, § 9, Code of Alabama 1940 (recompiled 1958) 1 and also under the provisions of Act No. 480, Acts of Alabama 1961, page 537; Code of Alabama 1940 (recompiled 1958), Appendix, §§ 1317(41)-1317(47).

A city or municipal corporation does not have the inherent power to enact and enforce zoning regulations. Ball v. Jones, 272 Ala. 305, 132 So.2d 120 (1961) and cases there cited. Ordinances of the character now under review find their justification in the exercise by the municipality of its police power asserted for the protection of the public welfare, and the modern tendency is to be liberal in upholding such ordinances in order to facilitate their proper administration. Walls v. City of Guntersville, 253 Ala. 480, 45 So.2d 468 (1950). The question then is whether the Legislature has granted extraterritorial zoning authority to the city.

Act No. 480, Acts of Alabama, 1961, grants to the Planning Commission of the City of Montgomery all the powers, duties, and responsibilities of city planning and zoning commissions as provided in Chapter 16, Title 37, Code of Alabama (1940), as amended.

Title 37, § 772, provides:

“Each municipal corporation in the state of Alabama may divide the territory within its corporate limits into business, industrial, and residential zones or

districts and may provide the kind, character and use of structures, and improvements that may be erected or made within the several zones or districts established and may, from time to time, rearrange or alter the boundaries of such zones or districts and may also adopt such ordinances as necessary to carry into effect and make effective the provisions of this article.” (Emphasis added)

Title 37, § 776, provides that for the purpose of promoting the public peace, order, safety or general welfare, “the local legislative body may divide the municipality into districts.” (Emphasis added)

While Title 37, § 9, grants to the City of Montgomery the power to enforce police or sanitary regulations in adjoining territory within three miles of the corporate limits, this power does not extend .to zoning regulations which are specifically provided for in other statutes. In the absence of any enabling legislation expressly providing otherwise, zoning enactments of a municipality are limited to its territorial boundaries and are invalid to the extent that they seek to impose zoning regulations and restrictions on land outside city limits. See Smeltzer v. Messer, 311 Ky. 692, 225 S.W.2d 96 (1949); State v. Owen, 242 N.C. 525, 88 S.E.2d 832 (1955); State v. Contini, 176 N.E.2d 536, 16 O.O.2d 263 (Ohio Com.Pl., 1961).

Our own decision in City of Homewood v. Wofford Oil Co., 232 Ala. 634, 169 So. 288 (1936), seems to recognize that Title 37, § 9, is not all encompassing. We there said:

“It is not to be inferred that a city may exercise any and every police power over the zone outside its corporate limits, [424]*424styled its 'police jurisdiction/ which it may exercise within its corporate limits.”

While the question of the power of a municipality to zone outside its city limits was not involved, we think a statement made by this court in Chapman v. City of Troy, 241 Ala. 637, 4 So.2d 1 (1941) is appropriate. The validity of our zoning act of 1935 was there being attacked. We said:

“Our statute is declared to be cumulative, leaving Sections 1878 and 1879 of the Code of 1923, Code 1940, Title 37, §§ 772 and 773 in full force. These sections, quite general in character, are in our opinion, not different in calling for a division of the territory within the corporate limits into appropriate districts according to a comprehensive plan.” (Emphasis added)

We now come to the city’s argument that since its planning commission has all the powers, duties and responsibilities of city and regional planning and zoning commissions as provided in Chapter 16, Title 37, Code of Alabama, 1940, as amended, it has the authority to regulate the use of these two parcels outside its corporate limits under the provisions of §§ 791, 794 and 797 of Title 372 These statutes do ex[425]*425plicitly grant to the city the right to do “planning” and further grant to the city some degree of control extraterritorially, especially with regard to subdivisions located within five miles of the city limits and with regard to certain “public” structures and “public” developments located within “any areas outside of its boundaries which, in the commission’s judgment, bear relation to the planning of such municipality.”

While the Legislature has given to municipalities certain extraterritorial control in these “planning” statutes, the general powers of a municipality to “zone” are contained in Title 37, §§ 772-785, Code of Alabama, 1940, as amended.

“Zoning” and “planning” are not synonymous, though they are sometimes so used. “Planning” and “zoning” include some common objectives, but most authorities agree that they are separate and distinct.

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 the 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. City of Carlsbad v. Caviness, 66 N.M. 230, 346 P.2d 310 (1959); Seligman v. Belknap, 288 Ky. 133, 155 S.W.2d 735

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Roberson v. City of Montgomery
233 So. 2d 69 (Supreme Court of Alabama, 1970)

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Bluebook (online)
233 So. 2d 69, 285 Ala. 421, 1970 Ala. LEXIS 1044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberson-v-city-of-montgomery-ala-1970.