Speakman v. City of Cullman

829 So. 2d 176, 2002 Ala. Civ. App. LEXIS 174, 2002 WL 363589
CourtCourt of Civil Appeals of Alabama
DecidedMarch 8, 2002
Docket2001243
StatusPublished
Cited by1 cases

This text of 829 So. 2d 176 (Speakman v. City of Cullman) 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
Speakman v. City of Cullman, 829 So. 2d 176, 2002 Ala. Civ. App. LEXIS 174, 2002 WL 363589 (Ala. Ct. App. 2002).

Opinion

YATES, Presiding Judge.

The plaintiffs, Danny Speakman and 11 other residents whose property abuts or is in proximity to 25.57 acres of land owned by the defendant, Wal-Mart Stores East, Inc., appeal from a summary judgment entered in favor of Wal-Mart and the defendant, City of Cullman, in this rezoning case. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

On February 18, 2000, Margie Ruth Wood Calvert and Mary Patricia Wood Darby requested that the City of Cullman rezone 25.57 acres of their land from residential (“R-l”) to business (“B-2”) district. On February 27, 2000, the City published a notice of the rezoning request in the Gull-man Times. The notice stated that there had been a request to rezone property along “Swafford Rd. SW from .R-l Residential to B-2 General Business,” and that a public hearing would be held on the .rezoning of the property on March 6, 2000.

On March 6, 2000, the City Planning Commission held a public hearing on the rezoning of the property. The Commission made no recommendation to the City Council regarding the rezoning. Also on March 6, 2000, the City Council held its regular meeting, at which time it had a first reading of the rezoning request. On March 14 and 21, 2000, the City published a notice of a public hearing on the rezoning request set for April 10, 2000. Both notices contained a brief description of the property as “north side of Swafford Road and Southeast of Cherokee Avenue S.W.” The notices also contained a detailed metes and bounds description of the property to be rezoned. The City sent, by certified mail, letters to the adjoining property owners notifying them of the April 10, 2000, hearing. After the hearing on April 10, 2000, the City Council granted the rezoning request, with certain conditions, as follows:

“(a) A permanent prohibition of vehicular ingress and egress from the property that was the subject of the Rezoning Request to and from Swafford Road; “(b) Development of the subject property consistent with the site plan presented to the Council;
“(c) Erection of a six to eight foot high berm with trees thereon along the Southern border of the subject property; “(d) Creation of a detention pond along the Southern border of the subject property that would prevent any adverse [178]*178surface water impact on the nearby residential property; and
“(e) Implementation of directional exterior lighting on the subject property such that such lighting would be directed away from the nearby residential neighborhoods.”

On April 20, 2000, the City published a notice that it had granted of the rezoning request, entitled “Ordinance 1372.” The notice did not contain the conditions the Council imposed.

On May 8, 2000, the plaintiffs filed a declaratory-judgment action against the City and Wal-Mart, seeking to have the ordinance declared void, and seeking a permanent injunction prohibiting Wal-Mart from developing the property for commercial use. Both Wal-Mart and the City moved for a summary judgment; the trial court granted their motions.

The plaintiffs argue that the rezoning request to the planning commission failed to include the current use of the adjoining parcels of property in accordance with § 110.1 of the Cullman Zoning Ordinance, adopted pursuant to § 11-52-1 et seq. Section 110.1 provides:

“An application for any amendment shall contain a description and/or statement of the present and proposed zoning regulation or district boundary to be applied, the names and addresses of the owner or owners of the lot in question, and the use of each adjacent property....”

Wal-Mart admits that the request fails to meet this requirement; however, it argues that the omission was harmless because, it says, the plaintiffs were not prejudiced by the omission.

In Kennon & Associates, Inc. v. Gentry, 492 So.2d 312, 317 (Ala.1986), the supreme court stated “In this jurisdiction, we have insisted on strict compliance with procedural requirements contained in statutes and regulations adopted pursuant to the enabling statutes.” In Kennon, the court held that the fact that none of the affected landowners were prejudiced by the City’s failure to properly notify the landowners of the pending action to rezone the lot in question did not preclude the court from invalidating the ordinance, which rezoned the lot from residential to commercial. The Kennon court stated:

“[WJhere there had been a failure to strictly follow the procedural requirements applicable to the action sought, especially notice provisions, this Court has invalidated the ordinance passed or the action taken, respective of whether any person was prejudiced by the error or omission.”

492 So.2d at 318. Although § 110.1 involves the request to rezone made to the planning commission in contrast to notice to the public, the failure to include the current uses of the surrounding property in the request does not strictly comply with the mandates of the Cullman Zoning Ordinance.

We also note that the planning commission violated § 110.3(a), regarding amending the Cullman Zoning Ordinance, which provides that “[bjefore taking such action as it may deem advisable, the City Council shall consider the Planning Commission’s written recommendation on each proposed zoning amendment.” Pursuant to § 11-52-8, it is the duty of the planning commission to make and adopt a master plan for the physical development of the municipality. Before adopting such a plan, the commission “shall make careful and comprehensive surveys and studies of present conditions and future growth of the municipality....” § 11-52-9. The planning commission decided not to make a recommendation to the City Council on the proposed ordinance. One member of the commission testified that it decided to [179]*179“forward” the request without making a recommendation because the ultimate rezoning decision was the City’s. While we recognize that the City Council has the authority to rezone and the planning commission is an advisory body, the purpose of requiring a recommendation from the planning commission is to give the City Council the advantage of the commission’s expertise on land-use planning with respect to the proposed amendment. The commission should have adopted or rejected the amendment rather than forgo its duty and decline to make a recommendation.

The plaintiffs argue that the second notice published on March 21, 2000, did not comply with § 11-52-77 and § 110.3(b) of the Cullman Zoning Ordinance. The March 21, 2000, notice included a detailed metes and bounds description of the affected property. The property was described in the notice as:

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Bluebook (online)
829 So. 2d 176, 2002 Ala. Civ. App. LEXIS 174, 2002 WL 363589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/speakman-v-city-of-cullman-alacivapp-2002.