Rel: December 8, 2023
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 OCTOBER TERM, 2023-2024
_________________________
SC-2023-0017 _________________________
T Investments, LLC, and FHM Company, LLLP
v.
City of Montgomery Planning Commission and City of Montgomery
Appeal from Montgomery Circuit Court (CV-21-901370)
COOK, Justice. SC-2023-0017
T Investments, LLC, and FHM Company, LLLP,1 challenge the
Montgomery Circuit Court's judgment denying their petition for a writ of
mandamus directing the City of Montgomery Planning Commission ("the
Commission") to conditionally approve their preliminary plat for a
proposed development within the geographical limits of the City of
Montgomery ("the City"). Because we conclude that the Commission
failed to record a legally sufficient reason for denying conditional
approval of the preliminary plat, we reverse the judgment and remand
the case with instructions for the circuit court to grant the petition for
the writ of mandamus.
Facts and Procedural History
FHM owns approximately 85 acres of undeveloped land in the City's
County Downs neighborhood ("the subject property"). County Downs was
originally developed in 1974. From the beginning, the neighborhood has
continuously been zoned as "R-75-S," a designation that restricts
1Although the pleadings and other filings identify this entity as FHM Company, LLP, materials in the record, including the affidavit of James B. Marshall, Jr., a partner in this entity, reflect that the entity's actual name is FHM Company, LLLP, which is also how this entity is listed in the Alabama Secretary of State's online business-records database.
2 SC-2023-0017
development to single-family residential dwellings on lots with at least
75 feet of road frontage. Since 1974, different portions of County Downs
have been systematically developed at different times. Notably, although
County Downs is zoned "R-75-S," the developed lots adjacent to the
subject property generally have between 85 and 100 feet of road frontage.
As County Downs has expanded, proposed plats contemplating the
development of unimproved land within the neighborhood have been
submitted to the Commission for approval. In January 2002, FHM
submitted a preliminary plat for the subject property ("the 2002
preliminary plat") to the Commission. The 2002 preliminary plat
proposed the development of 327 single-family, residential homes on lots
that were approximately 100 feet wide. Although the Commission
conditionally approved the 2002 preliminary plat, that plat was never
submitted to the Commission for final approval, and the subject property
remained undeveloped.
In 2021, FHM entered into an agreement with T Investments to
develop the subject property. As part of the agreement, FHM authorized
T Investments to act as its agent in, among other things, seeking the
Commission's approval of a proposed development on the subject
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property. The City's subdivision regulations require developers to comply
with a two-stage process for plat approval. First, a subdivider, which is
defined in § IX.C of the City's subdivision regulations as "[a]ny person or
corporation or duly authorized agent who undertakes the subdivision of
[the] lands" at issue, must seek the Commission's conditional approval of
a preliminary plat. See § II.A-C of the City's Subdivision Regulations. To
do so, the subdivider must submit the "preliminary plat together with
other supplementary material as deemed necessary by the …
Commission and specified in Section III" of the subdivision regulations.
Id., § II.B.1.
Conditional approval of a preliminary plat by the Commission does
"not constitute approval of the final plat," but, rather, is
"deemed an expression of approval of the layout submitted on the preliminary plat as a guide to the preparation of the final plat, which will be submitted for the approval of the … Commission, and for recording upon the fulfillment of the requirements of [the subdivision] regulations and the conditions of the conditional approval, if any."
Id., § II.B.5. If the Commission grants conditional approval, and after
the subdivider satisfies the requirements set forth in the subdivision
regulations and any conditions imposed by the Commission, the
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subdivider then submits a final plat for approval and recording. See id.,
§ II.D.
T Investments hired Flowers & White Engineering to create a
preliminary plat for the subject property that conformed with the
requirements for "R-75-S" zoning districts. The preliminary plat
proposed subdividing the subject property into 244 lots for single-family,
residential use, with typical lot sizes that were 75 feet wide and 135 feet
deep.
In October 2021, the preliminary plat was submitted to the
Commission for conditional approval. City staff noted that the
preliminary plat complied with the City's zoning ordinance and
subdivision regulations. Moreover, the City's engineering, traffic, fire,
water, and sewer departments, along with the Montgomery County
Health Department, expressed no objections to the preliminary plat.
Consideration of the preliminary plat was initially set for a hearing
at the Commission's October 28, 2021, meeting. At that meeting,
however, the Commission urged representatives of T Investments to
meet with certain residents of County Downs ("the residents") to discuss
their concerns regarding the preliminary plat. As a result, T Investments
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voluntarily delayed its request for conditional approval of the
preliminary plat until the Commission's next meeting on November 18,
2021, and it arranged for its representatives to meet with the residents
on November 9, 2021.
Representatives from both T Investments and Flowers & White met
with the residents on November 9, 2021. The primary concern expressed
by the residents at the meeting was the proposed width of the lots in the
preliminary plat. Some of the residents were concerned that the proposed
smaller lot sizes in the preliminary plat would cripple the value of
existing homes in County Downs. Although the residents acknowledged
that the "R-75-S" zoning designation required that each lot have only 75
feet of road frontage, they nevertheless asked that the preliminary plat
be amended to propose lots with at least 100 feet of road frontage. T
Investments, however, would not agree to the residents' request, and no
resolution of this disagreement was reached at the meeting.
Consideration of the preliminary plat was reset for a hearing at the
Commission's November 18, 2021, meeting. All nine commissioners,
along with several members of the City's land-use staff, were present at
the meeting. During the meeting, the Commission and City officials
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discussed, among other things, the connectivity of the street system in
County Downs, the neighborhood's sewage infrastructure, whether a
traffic study was required at the conditional-approval stage, and whether
the preliminary plat submitted by T Investments could supersede the
2002 preliminary plat previously conditionally approved by the
Commission. Kenneth White, the Flowers & White engineer who had
prepared the preliminary plat, asserted that he had met with the City's
traffic engineer before submitting the preliminary plat to the
Commission and that the traffic engineer had not indicated that a traffic
study was required. According to White, the City's zoning ordinance --
rather than the 2002 preliminary plat -- controlled the width of the
proposed lots in the preliminary plat. White further explained that, as
development of the subject property pursuant to preliminary plat
proceeded, there would be greater street connectivity within County
Downs, which would help improve the quality of emergency and other
municipal services to the neighborhood.
Several of the residents also appeared at the meeting to object to
the proposed development of the subject property. The Commission heard
from some of the residents, who voiced concerns about increased traffic,
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exacerbation of existing drainage issues, and the fact that the 2002
preliminary plat called for lots with 100 feet of road frontage, rather than
the 75-feet-per-lot of road frontage proposed by the preliminary plat. One
of the residents, attorney Richard Dean, submitted a letter to the
Commission on the day of the meeting, specifically asking it to deny
conditional approval of the preliminary plat for eight enumerated
reasons. 2
At the meeting, Dean explained that, in his view, the City's
subdivision regulations required subdividers "to have a traffic study
ahead of time before [the Commission] approve[d] a plat that has a
subdivision of 50 houses or more." Dean argued that some neighborhood
residents had relied on the 2002 preliminary plat when purchasing
homes in County Downs. Dean also provided the Commission with his
overview of the legal and regulatory framework governing the
Commission's review of the preliminary plat:
2The Commission took Dean's letter under advisement during the
meeting. Dean's letter noted that the Commission's bylaws and the relevant statute required that it state in its records a valid reason for denying conditional approval of a preliminary plat. See § 11-52-32(a), Ala. Code 1975, and Smith v. City of Mobile, 374 So. 2d 305, 308 (Ala. 1979).
8 SC-2023-0017
"MR. DEAN: I'll hurry. I just want to explain, very briefly, the law …. You are supposed to vote on this. You can vote it up or down. The statute says, the ground of disapproval shall be stated on the record if you vote it down.
"You have to state a reason for it to be valid. Secondly, the case law says, valid reason. There's no definition of valid reason. But what the cases all come down on is health, morals, public safety, welfare of the community, stuff like that.
"I have given you a memo with eight good, valid reasons, including the fact the plat's already out there that says something different. But if you do vote it down -- here's where most … planning commissions get messed up.
"You either vote and it's a tie and you do nothing, well, it's automatically approved in 30 days. If you vote it down, but you don't give your reasons on the record tonight, it's going to be approved in 30 days. But it -- you're just like a jury. You decide. You vote.
"If five of you vote this plat down, and you state your reasons tonight, that's the final decision. I don't want you to assume it's going to be an appeal. I looked. I didn't see but about three cases that have ever been appealed. And when it does get appealed, it's not somebody suing the [C]ity. They just asking a circuit judge to review what you did. They can ask the appellate courts to review what you did. You can vote it down and give a reason -- and by the way, the law says you can give as many reasons as you want.
"Only one of them has got to be valid. So I've typed up eight of them for you ….
"….
"I'm asking … you make an affirmative motion to vote it down, second it, and then vote. And please state your reasons
9 SC-2023-0017
on the record if you do so. And you will not be overturned. That's my opinion. I've researched it.
"If you vote to approve it, it's approved. No reason has to be given. If you vote it down, you have to state your reason on the record here at the meeting tonight. One person's of the opinion it's got to be in writing. I'm of the opinion you can orally state it because we're being filmed. There's a nice little video of this. But you have to give a reason why you're denying it.
"I had one attorney tell me you -- to be safe, you need to make a motion to deny it or disapprove or vote down the plat, whatever you call it, a second, a discussion, if you want. Then, you vote. And if you vote to deny it, somebody has to say, okay, the reason is this.
"And I suggest you give a lot of reasons because if there's an appeal, if just one of those reasons is valid, it's going to be upheld. That's what I'm asking to do. If you want to vote it down, I'd like you to give every one of them eight reasons I gave you. And that's your discretion. I'm not trying to tell you what to do. But that would help down the road."
A commissioner moved to deny conditional approval of the
preliminary plat, and that motion was seconded. Ann Clemons, the
Chairperson of the Commission, then asked that those commissioners in
favor of denying conditional approval of the preliminary plat raise their
right hand. All nine commissioners raised their right hand, and
Chairperson Clemons announced that the motion to deny conditional
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approval of the preliminary plat carried by a 9-0 vote. After the vote,
Chairperson Clemons polled some of the Commission's members as to the
reasons they had voted to deny conditional approval of the preliminary
plat. Commissioner Buddy Hardwich asserted that conditional approval
of the preliminary plat should be denied for safety reasons.
Commissioner Crews Reaves stated that he had voted to deny conditional
approval of the preliminary plat for reasons relating to safety, drainage,
and the applicability of the 2002 preliminary plat. Commissioner James
Reid stated that he had voted to deny conditional approval of the
preliminary plat because it did not conform with the 2002 preliminary
plat. Commissioner Frank Cook cited the lack of a traffic study and the
preliminary plat's deviations from the 2002 preliminary plat. The
remaining five commissioners did not vocalize their reasons for
disapproving of the preliminary plat.
On the following day, November 19, 2021, Thomas M. Tyson, Jr.,
the land-use-control administrator for the City and the Commission's
executive secretary, sent Flowers & White a letter stating that the
conditional approval of the preliminary plat had been denied for "safety
reasons, drainage, and … [failure to] conform to the preliminary plat that
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was approved in 2002." The minutes of the Commission's November 18,
2021, meeting were also considered and approved at its next meeting on
December 9, 2021. Those minutes contain the following entry:
"Presented by Flowers & White Engineering representing T Investments, LLC requesting preliminary approval of County Downs Addition Preliminary Plat located on the east end of Paddock Lane in an R-75-[S] (Single-Family Residential) Zoning Districts.
"ACTION: After thorough study and consideration and based on the facts as presented, a motion was made by Mr. Reaves, seconded by Mr. Dunn, and carried to deny this request for safety reasons, drainage, and this plat does not conform to the preliminary plat that was approved in 2002, by the following vote:
"AYES : UNANIMOUS 9 "NAYS : NONE 0 "RECUSED : NONE 0 "ABSTAINED : NONE 0 "ABSENT : NONE 0"
(Emphasis added.)
On December 30, 2021, T Investments and FHM petitioned the
circuit court for a writ of mandamus directing the Commission to
conditionally approve the preliminary plat submitted on November 18,
2021. The Homeowners Association of County Downs ("the HOA")
petitioned to intervene. The circuit court denied the HOA's petition, and
the HOA appealed. The Court of Civil Appeals upheld the circuit court's
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order denying the HOA's petition to intervene. County Downs
Homeowners Ass'n v. T Invs., LLC, [Ms. CL-2022-0572, Sept. 30, 2022]
___ So. 3d ___ (Ala. Civ. App. 2022) (table). The HOA, however, was
allowed to file an amicus curiae brief in the circuit court.
On October 26, 2022, the circuit court heard oral arguments. At oral
arguments, the Commission and the City conceded that T Investments
had not been required to provide a traffic study, stating that, "[w]ith a
planned unit development, you do have to have what they call a traffic
study. However, with a preliminary plat, you do not have to have a traffic
study." The Commission and the City additionally clarified that the lack
of a traffic study is "just one thing. It's not safety. It's not drainage." The
Commission and the City argued that the denial "wasn't based solely on
what the residents [were] saying. It wasn't based solely on the traffic
study. It wasn't based solely on the fact that the residents [were]
concerned about the 75-feet homes and the 100-feet homes. They were,
but it was also safety issues that [were] addressed." In addition, the
Commission and the City raised no arguments pertaining to T
Investments and FHM's failure to provide a traffic study in their answer
to the mandamus petition. Attached to the Commission and the City's
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answer, moreover, was the affidavit of Tyson, who stated that "T
Investments presented a preliminary plat, whereas, a preliminary plat is
a map of the property which can be used in any zoned district. For a
preliminary plat, a traffic impact study is not required."
On December 2, 2022, the circuit court entered a judgment
upholding the Commission's decision to deny conditional approval of the
preliminary plat and denying T Investment and FHM's petition for a writ
of mandamus. Specifically, the circuit court found that, although the
stated reasons of "drainage" and "failure to conform to the [2002
preliminary plat]" were legally insufficient grounds for denying
conditional approval of the preliminary plat, the Commission's decision
to deny approval based on "safety reasons" was valid. According to the
circuit court, it was upholding the Commission's decision to deny
approval based on "safety reasons" because (1) § III.A.3(j) of the City's
subdivision regulations "suggests a traffic analysis approved by the …
Commission may be necessary for approval of the preliminary plat (based
on the subdivision consisting of more than 50 dwelling units and/or where
deemed appropriate by the planning commission)," (2) there was no
traffic study provided at the time the preliminary plat was presented,
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and (3) the transcript of the November 18, 2021, meeting reflects that
Commissioner Cook stated that one of his reasons for denying the
conditional approval of the preliminary plat was the lack of a traffic
study. As the circuit court explained:
"The final reason cited by the … Commission for denying the preliminary plat was based upon 'safety.' The record reflects that at least one [c]ommissioner cited lack of a traffic study and potential danger to neighborhood residents caused by increased traffic in the area. While there was no objection to the preliminary plat from the traffic engineering department of the City of Montgomery, Sec. III(A)(3)(j) of [the City's subdivision regulations] governing requirements for preliminary approval of plats states:
" 'Data required as a basis for the preliminary plat in A(1) above shall include the following information:
" '[(j)] For all planned unit developments, subdivisions consisting of more than 50 dwelling units, and for any subdivision when deemed appropriate by the planning commission, a comprehensive traffic analysis, which must be approved by the planning commission, indicating the probable effect of the proposed subdivision on traffic patterns and capacities of adjacent streets in the immediate area.'
"Because the foregoing City [subdivision regulation] suggests a traffic analysis approved by the … Commission may be necessary for approval of the preliminary plat (based on the subdivision consisting of more than 50 dwelling units and/or where deemed appropriate by the planning commission), this Court cannot find that the decision to deny
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the plat due to safety concerns was arbitrary and capricious. While this Court may have reached a different decision than the … Commission, the standard of review requires that the Court uphold the Commission's decision unless it is arbitrary and capricious. While a close call, based upon the foregoing, the above-styled Petition for Writ of Mandamus is DENIED."
(Some emphasis added; some emphasis in original.) T Investments and
FHM subsequently appealed the circuit court's judgment denying their
petition for a writ of mandamus to this Court.
Standard of Review
" There is no dispute that the proper standard of review in cases based on an administrative agency's decision is whether that decision was arbitrary or capricious or was not made in compliance with applicable law.
" ' Our standard of review regarding administrative actions is very limited in scope. We review the circuit court's judgment without any presumption of correctness since that court was in no better position than this court to review the agency decision …. The special competence of the agency lends great weight to its decision. That decision must be affirmed unless arbitrary, capricious, or not made in compliance with applicable law …. Neither the circuit court nor this court may substitute its judgment for that of the administrative agency.' "
Ex parte City of Fairhope, 739 So. 2d 35, 38 (Ala. 1999) (quoting State
Dep't of Revenue v. Acker, 636 So. 2d 470, 473 (Ala. Civ. App. 1994)).
Discussion
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At issue in this appeal is whether T Investments and FHM are
entitled to a writ of mandamus directing the Commission to grant
conditional approval of the preliminary plat. T Investments and FHM
argue that the Commission failed to adequately state in writing its
reasons for denying conditional approval of the preliminary plat within
30 days of the plat's submission and that such failure should have
resulted in the automatic approval of the preliminary plat pursuant to
§ 11-52-32(a), Ala. Code 1975. We begin our analysis by reviewing the
law governing a planning commission's decision to disapprove a
subdivision plat.
I.
A planning commission's authority to regulate the subdivision of
land is derived from legislative act. Smith v. City of Mobile, 374 So. 2d
305, 307 (Ala. 1979). " '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.' " Id. (quoting Boulder Corp.
v. Vann, 345 So. 2d 272, 274 (Ala. 1977)).
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Alabama's subdivision-control statutes, § 11-52-30 et seq., Ala.
Code 1975, impose certain limitations on a planning commission's review
of subdivision applications. As relevant here, § 11-52-32(a) provides that
a 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." Section 11-52-32(a) further
mandates that "[t]he ground of disapproval of any plat shall be stated
upon the records of the municipal planning commission."
Appellate decisions interpreting § 11-52-32(a) make clear that the
reasons assigned for the denial of a subdivision application must be both
(1) valid and (2) "sufficiently clear … to inform a developer 'wherein the
plan failed to meet the requirements of the regulations.' " Ex parte Pine
Brook Lakes, Inc., 617 So. 2d 1014, 1016 (Ala. 1992) (quoting E.C. Yokely,
The Law of Subdivisions § 54 (2d ed. 1981); see Smith, 374 So. 2d at 308
(" 'Where a subdivision plan is disapproved, valid reasons must be given
for such action.' " (quoting Yokely, supra, § 54 (1963 and Supp. 1979)));
Mobile City Plan. Comm'n v. Southern Region Devs., Inc., 628 So. 2d 739,
740 (Ala. Civ. App. 1993) (affirming a trial court's decision to grant
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mandamus relief to developer when planning commission cited existence
of vague "concerns" and "questions" as reasons for denying developer's
subdivision application).
As this Court explained in Sigler v. City of Mobile, 387 So. 2d 813
(Ala. 1980),
"[i]n passing judgment on a landowner's proposed subdivision, [a planning commission] must assign its reasons for denial within thirty (30) days. If it does not do so, approval is automatic under the statute. An invalid reason is equivalent to no reason …."
Id. at 814 (emphasis added). Importantly, in addition to being both valid
and unambiguous, the reasons for a planning commission's disapproval
of a proposed subdivision plat must also be sufficiently recorded to
comply with § 11-52-32(a). See Sadie v. Tyson, 539 So. 2d 1066, 1068 (Ala.
Civ. App. 1988) (concluding that § 11-52-32(a) "requires that the grounds
for the disapproval of any plat shall be stated upon the records of the
planning commission within thirty days of the submission of the plat ….")
II.
As noted above, the Commission cited three reasons for its denial
of conditional approval of the preliminary plat: (1) "safety reasons," (2)
"drainage," and (3) "this plat does not conform to the preliminary plat
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that was approved in 2002." The circuit court found that all but one of
those reasons were invalid. In particular, the circuit court concluded that,
although some of the residents had expressed concern that the proposed
development of the subject property would exacerbate existing drainage
issues, "no data or other evidence was presented to bolster those
concerns." The circuit court additionally concluded that "[t]he fact that a
prior preliminary plat was approved calling for 100 ft. lots nearly two
decades ago d[id] not serve as a valid legal basis for rejecting a
preliminary plat that otherwise conform[ed] to the zoning requirements
for the area."3
The circuit court, however, upheld the Commission's decision to
deny conditional approval of the preliminary plat for "safety reasons."
The circuit court asserted that, because a provision of the City's
subdivision regulations "suggests a traffic analysis approved by the …
Commission may be necessary for approval of the preliminary plat, … [it
could] not find that the decision to deny the plat due to safety concerns
3In its judgment denying the mandamus petition, the circuit court
also noted that the Commission and the City had raised the issue of standing, but it found that T Investments and FHM did have standing to seek mandamus relief.
20 SC-2023-0017
was arbitrary and capricious." In reaching that conclusion, the circuit
court acknowledged that the Commission had not mentioned the lack of
a comprehensive traffic analysis as a ground for denial in the minutes for
the November 18, 2021, meeting, but it stated that the submissions to
the circuit court did reflect that at least one commissioner had cited the
"lack of a traffic study and potential danger to neighborhood residents
caused by increased traffic in the area" as a reason for his vote to deny
conditional approval of the preliminary plat.
III.
T Investments and FHM argue that the circuit court erroneously
concluded that the "safety reasons" articulated in the meeting minutes
were legally sufficient grounds for denying conditional approval of the
preliminary plat. In response, the Commission and the City contest T
Investments', and by extension FHM's, standing to petition the circuit
court for a writ of mandamus. Alternatively, the Commission and the
City contend that, assuming that T Investments did have standing to
seek mandamus relief, the circuit court correctly concluded that the
Commission's denial of conditional approval of the preliminary plat for
"safety reasons" was legally sufficient. We first address the Commission
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and the City's challenge to T Investments' standing to seek mandamus
relief.
A.
The Commission and the City argue that, because FHM, and not T
Investments, is the owner of the subject property, "T Investments was
not the proper party to present the preliminary plat to the …
Commission, and therefore, had no standing and no legal right to petition
the trial court for [a] writ of mandamus." The Commission and the City's
brief at 17. The Commission and the City's argument is premised on § I.B
of the City's subdivision regulations, which provides:
"B. Limits of jurisdiction. From and after the effective date hereof, these regulations shall govern all subdivision of land within the corporate limits of the City of Montgomery and its police jurisdiction. Any owner of land within the area governed by these regulations wishing to subdivide land shall submit to the Planning Commission a plat of the subdivision which shall conform at least to the minimum requirements and procedures set forth in these regulations."
The Commission and the City insist that, because the above provision
states that the "owner of land … shall submit to the … Commission a plat
of the subdivision," only FHM could have properly presented a
preliminary plat to the Commission. Thus, according to them, T
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Investments had no "standing"4 to seek mandamus relief from the circuit
court.
Notably, the Commission and the City's argument overlooks other
relevant language in the City's subdivision regulations -- namely, the
provisions of the regulations that pertain to the procedures for approval
of a preliminary plat. As relevant here, those provisions provide (1) that
"the subdivider may … proceed to prepare the preliminary plat for
4Although couched in terms of standing and jurisdiction, the Commission and the City's argument actually concerns whether T Investments and FHM have shown a clear legal right to a writ of mandamus. Importantly, the Commission and the City do not dispute that T Investments, as the intended developer of the subject property, has a legally cognizable interest that has been injuriously affected by the Commission's decision to deny conditional approval of the preliminary plat. See Ingle v. Adkins, 256 So. 3d 62, 71 (Ala. 2017) (plurality opinion) ("[T]o have standing to bring an action, the plaintiff must have an interest in the outcome of the action and show that he or she has suffered or imminently will suffer an injury."). Rather, they argue that, because T Investments was not the proper party to present the preliminary plat to the Commission, T Investments and FHM could not demonstrate that the Commission owed T Investments a clear duty to comply with § 11-52- 32(a). See Campbell v. City of Hueytown, 289 Ala. 388, 390, 268 So. 2d 3, 4 (1972) ("An indispensable requirement for mandamus is the presence of a right in the applicant to the thing applied for."). Thus, the Commission and the City confuse T Investments and FHM's entitlement to a writ of mandamus with the circuit court's jurisdiction to consider the mandamus petition. In any event, and as discussed below, the Commission and the City's assertion that T Investments could not properly present the preliminary plat to the Commission is without merit.
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submission," § II.A.2 of the City's subdivision regulations, and (2) that
"the subdivider shall cause to be prepared a preliminary plat together
with other supplementary material as deemed necessary by the Planning
Commission and specified in section III." Id., § II.B.1.
As previously noted, the City's subdivision regulations define a
subdivider as "[a]ny person or corporation or duly authorized agent who
undertakes the subdivision of lands defined herein." Id., § IX.C (emphasis
added). Thus, the City's subdivision regulations allow an agent of the
landowner to prepare and present a preliminary plat. Here, T
Investments and FHM presented the circuit court with affidavit
testimony indicating that T Investments was acting as FHM's agent
when it filed the application for conditional approval of the preliminary
plat. 5 The City and the Commission do not acknowledge, much less
dispute the accuracy of the facts alleged in, those affidavits.
5Specifically, the T Investments and FHM submitted the affidavits
of James B. Marshall, Jr., a partner in FHM, and Foy Tatum, the owner of T Investments, who both testified (1) that FHM had entered into an agreement with T Investments to develop the subject property and (2) that, as part of that agreement, FHM had authorized T Investments to serve as its legal agent in presenting "the City … and the … Commission [with] documents needed for approval of a preliminary plat, construction permitting, final platting, and any other items needed to gain approval to develop the [subject] property."
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Furthermore, the Commission never indicated that T Investments was
not permitted to present the preliminary plat, and it did not cite that as
a basis for its disapproval of the plat. Because the City's subdivision
regulations permit the duly authorized agents of property owners to
present preliminary plats to the Commission, and because the affidavits
confirm the existence of an agency relationship between T Investments
and FHM, the Commission and the City's argument that T Investments
could not properly request the Commission's approval of the preliminary
plat is without merit.
B.
We now turn to the merits of the arguments raised in T Investments
and FHM's brief. T Investments and FHM contend that the Commission's
denial for "safety reasons" was impermissibly vague and speculative and
that the circuit court improperly "endeavored on a fact-finding mission to
resolve this vagueness by reasoning that … 'safety reasons' could be
broadly interpreted to mean there was a lack of the traffic study." T
Investments and FHM's brief at 29 (emphasis in original). According to
them, the meeting minutes control whether, pursuant to § 11-52-32(a),
the Commission sufficiently stated its grounds for denying conditional
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approval of the preliminary plat. T Investments and FHM additionally
say that the Commission "did not and could not" base its disapproval on
the lack of a traffic study because the City, as evidenced by Tyson's
affidavit testimony, did not require a traffic study at the conditional-
approval stage. Id. at 32.
The Commission and the City dispute T Investments and FHM's
contention that judicial review of the Commission's decision in this case
should be limited to the reasons recorded in the meeting minutes.
Instead, they urge this Court to consider, cumulatively, the minutes of
the meeting, the transcript of the meeting, and all other evidence in the
record in determining whether the Commission adequately stated its
grounds for denying conditional approval of the preliminary plat.
According to the Commission and the City, because that evidence reflects
that a traffic study was discussed during the meeting, and that one
commissioner cited the lack of a traffic study as a reason for his vote to
deny conditional approval of the preliminary plat, the circuit court
correctly concluded that the Commission's denial for "safety reasons" was
not impermissibly vague. They further contend that the discussions that
took place during the meeting provided the Commission with a
26 SC-2023-0017
reasonable basis for its decision to deny conditional approval of the
preliminary plat for "safety reasons."
As a threshold matter, we agree with T Investments and FHM's
contention that the meeting minutes, standing alone, fail to comply with
the requirements of § 11-52-32(a). This Court has held that "[n]otification
of disapproval must be accompanied by reasons sufficiently clear and
definite to inform a developer 'wherein the plan failed to meet the
requirements of the regulations.' " Ex parte Pine Brook Lakes, Inc., 617
So. 2d at 1016 (quoting Yokely, supra, § 54). In Ex parte Pine Brook
Lakes, Inc., we concluded that the "planned county roadway
construction" cited by Jefferson County as the basis for its disapproval of
a preliminary-plat application was insufficient under our statutes and
caselaw. Id. As we explained, "the purported explanation utterly fail[ed]
to apprise [the developer] of the nature of the deficiency, and,
consequently, of the nature of such amendments as would render the
plans acceptable." Id. Here, the "safety reasons" stated in the meeting
minutes gave no indication as to how T Investments and FHM could have
altered their application to address the Commission's concerns.
27 SC-2023-0017
As noted, however, the Commission and the City dispute T
Investments and FHM's contention that review of the Commission's
decision should be limited to the reasons recorded in the minutes of the
Commission's November 18, 2021, meeting. Although this Court has held
that a planning commission's reasons for denying a subdivision
application must be recorded, we have not interpreted § 11-52-32(a) as
requiring that those reasons be recorded in any specific type of document.
Thus, we reject T Investments and FHM's contention that planning
commissions can rely only on meeting minutes to satisfy § 11-52-32(a)'s
requirement that valid grounds for a planning commission's denial of
approval of a plat be adequately "stated upon the records of the municipal
planning commission."
Nevertheless, even when we consider the Commission's meeting
minutes, the transcript of the meeting, and other evidence in the record
cumulatively, as the Commission and the City urge, that evidence does
not reveal that the Commission recorded a sufficiently specific basis for
its decision to deny conditional approval of the preliminary plat within
30 days -- or that the "safety reasons" cited in the meeting minutes
pertained to the lack of a traffic study.
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Crucially, although the transcript of the Commission's November
18, 2021, meeting reflects that several potential reasons for denying
conditional approval of the preliminary plat -- both valid and invalid --
were raised and debated throughout the course of that meeting, at the
time the commissioners voted to deny conditional approval of the
preliminary plat, only four of the nine commissioners in attendance
articulated their reasons for doing so. Of those four commissioners,
moreover, only one, Commissioner Cook, referenced the lack of a traffic
study, but he did not otherwise mention any safety concerns arising from
the lack of a traffic study.6 Furthermore, the two commissioners who
expressly referenced safety as a reason for their votes to deny conditional
6Although the circuit court's judgment states that "[t]he record reflects that at least one [c]ommissioner cited lack of a traffic study and potential danger to neighborhood residents caused by increased traffic in the area," the transcript does not reflect that Commissioner Cook, or any other commissioner, cited the danger posed by increased traffic as a reason for disapproving the preliminary plat. According to the transcript, when asked for his reasons for denying conditional approval of the preliminary plat, Commissioner Cook responded as follows:
"Mr. Cook: My reason is that the interconnectivity of the roads, the traffic -- I don't think there's a question about [whether] the traffic study has to be done. And I've got a question about the, uh, the change with the plat -- with the preliminary plat that was done in 2002."
29 SC-2023-0017
approval of the preliminary plat made no effort to identify with any
particularity the bases for their stated safety concerns. Accordingly,
although the transcript of the meeting may reflect that T Investments
and FHM were made aware of various potential bases for the
Commission's decision to deny conditional approval of the preliminary
plat, the transcript does not indicate that T Investments and FHM were
provided with meaningful notice of the actual basis for the Commission's
collective decision to deny conditional approval of the preliminary plat.
The evidence in the record, moreover, undermines the circuit
court's conclusion and strongly suggests that the Commission's
disapproval of the preliminary plat was not actually related to the lack
of a traffic study. As previously discussed, neither the meeting minutes
nor the denial letter mentioned a traffic-study requirement. The
Commission and the City's answer to the mandamus petition also made
no reference to T Investments and FHM's failure to provide a traffic
study.
Most importantly, attached to the Commission and the City's
answer was the affidavit of Tyson, the City's land-use-control
administrator, who stated that "T Investments presented a preliminary
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plat, whereas, a preliminary plat is a map of the property which can be
used in any zoned district. For a preliminary plat, a traffic impact study
is not required." (Emphasis added.)
Likewise, at oral arguments before the circuit court, the
Commission and the City expressly conceded that T Investments and
FHM were not required to provide a traffic study for conditional approval
of a preliminary plat, stating: "With a planned unit development, you do
have to have what they call a traffic study. However, with a preliminary
plat, you do not have to have a traffic study." (Emphasis added.)
Crucially, at no point in the proceedings before the circuit court did
the Commission and the City argue (1) that § III.A.3(j) of the City's
subdivision regulations required T Investments and FHM to submit a
traffic study or (2) that the lack of a traffic study was a valid or actual
basis for the Commission's disapproval of the preliminary plat. Thus, the
record of the proceedings before the circuit court indicate that the
Commission deliberately declined to adopt the lack of a traffic study as a
basis for its disapproval in the meeting minutes and denial letter and
that the Commission did not intend for the stated ground of "safety
31 SC-2023-0017
reasons" to encompass T Investments and FHM's purported failure to
submit a comprehensive traffic analysis.
The Commission and the City, for the first time in their briefing to
this Court, now contend that the Commission's denial based on "safety
reasons" was really because of the lack of a traffic study and therefore
was not overly broad and vague. However, beyond approvingly
reiterating the circuit court's findings and stating -- in conclusory fashion
-- that Tyson's affidavit testimony "cannot override" the City's
subdivision regulations,7 the Commission and the City do not explain
how the circuit court could have reasonably concluded that the
Commission's denial of conditional approval of the preliminary plat for
"safety reasons" was actually based on the T Investments and FHM's
purported failure to comply with § III.A.3(j) of the City's subdivision
regulations when, in proceedings before the circuit court, they never
alleged that the lack of a traffic study was a ground for the Commission's
decision and when their own employee swore that providing a traffic
7We note that the question whether the City's subdivision regulations requires the submission of a traffic study is distinct from whether the Commission (1) actually based its denial T Investments and FHM's purported failure to provide a traffic study or (2) adequately stated its reasons for the denial.
32 SC-2023-0017
study was not a requirement for conditional approval. See Noojin v.
Mobile City Plan. Comm'n, 480 So. 2d 587, 590 (Ala. Civ. App. 1985) ("The
commission would have this court judge the validity of the denial of
approval, not just in terms of the reason given in the official denial letter
…, but also in terms of the four purposes … set forth in the subsequent
letter …. This we cannot do.").
The Commission and the City, moreover, distinguished the issue of
the traffic study from the safety concerns cited by the Commission,
explaining that the Commission's denial of conditional approval of the
preliminary plat "wasn't based solely on the traffic study … [or] the fact
that the residents w[ere] concerned about the 75-feet homes and the 100-
feet homes. They were, but it was also safety issues that w[ere]
addressed." (Emphasis added.)
For these reasons, we conclude that the Commission failed to
satisfy § 11-52-32(a)'s requirement that valid and sufficiently specific
grounds for its denial of approval of a subdivision plat be "stated upon
the records" of the Commission within 30 days of the submission of the
plat. See Ex parte Pine Brook Lakes, Inc., supra. Because that failure
resulted in the automatic approval of the preliminary plat pursuant to
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§ 11-52-32(a), T Investments and FHM are entitled to a writ of
mandamus directing the Commission to conditionally approve the
preliminary plat. See Sigler v. City of Mobile, supra.
Conclusion
Based on the foregoing, we reverse the judgment of the circuit court
and remand the case with instructions that the circuit court grant the
petition for the writ of mandamus.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ., concur.
Bryan, J., concurs in the result.
Sellers, J., dissents, with opinion, which Wise and Stewart, JJ.,
join.
34 SC-2023-0017
SELLERS, Justice (dissenting).
I respectfully dissent. This Court has long held that municipal
planning commissions operate in an administrative capacity when
"exercising [their] function approving or disapproving any particular
subdivision plat." Boulder Corp. v. Vann, 345 So. 2d 272, 275 (Ala. 1977).
Although the Alabama Administrative Procedure Act, § 41-22-1 et seq.,
Ala. Code 1975, does not apply to the City of Montgomery Planning
Commission ("the Commission"), the majority correctly notes that, due to
the administrative nature of municipal planning commissions as arms of
municipal government, we must still accord the Commission's decision
considerable deference and affirm it " 'unless [it was] arbitrary,
capricious, or not made in compliance with applicable law.' " Ex parte City
of Fairhope, 739 So. 2d 35, 38 (Ala. 1999) (quoting State Dep't of Revenue
v. Acker, 636 So. 2d 470, 473 (Ala. Civ. App. 1994)). But the majority's
invocation of this standard of review appears to be nominal at best
because it proceeds to do exactly that which the standard of review
forbids: The majority " 'substitute[s] its judgment for that of the
[Commission].' " Id. Notably, in its de novo review of the trial court's
judgment upholding the Commission's decision, the majority accepts
35 SC-2023-0017
certain conclusions without any explanation, yet it ultimately reverses
the trial court's judgment by parsing the judgment and reweighing the
evidence before the Commission, deeming the Commission's recorded
reasons legally insufficient to support the denial of conditional approval
of the preliminary plat.
Relying on a series of appellate decisions construing § 11-52-32(a),
Ala. Code 1975, the majority contends that a municipal planning
commission's reasons for disapproving a preliminary plat must be not
only valid but also "sufficiently clear" to apprise a developer of its plan's
deficiencies. Ex parte Pine Brook Lakes, Inc., 617 So. 2d 1014, 1016 (Ala.
1992); see Smith v. City of Mobile, 374 So. 2d 305, 308 (Ala. 1979).
Applying this standard requiring fair notice to the developer, the
majority concludes that the "safety reasons" espoused by the Commission
did not relate to the lack of a traffic study and that the Commission failed
to record a sufficiently specific basis for denying conditional approval of
the preliminary plat. In so concluding, the majority, in my view, applies
the "sufficiently clear" prong in too exacting a manner, requiring a level
of specificity well beyond what our precedents mandate. Indeed, the two
cases the majority cites that applied this standard involved reasons for
36 SC-2023-0017
denial that were so vague that the developer in each case had no guidance
regarding "the nature of [the] amendments [that] would render the plans
acceptable." Ex parte Pine Brook Lakes, Inc., 617 So. 2d at 1016 (noting
that the planning commission's citation to a "planned county roadway
construction" would authorize indefinite suspension of real-estate
development, which was at odds with the commission's own regulatory
time constraints); see Mobile City Plan. Comm'n v. Southern Region
Devs., Inc., 628 So. 2d 739, 740 (Ala. Civ. App. 1993) (affirming a trial
court's granting mandamus relief to a developer when the planning
commission based its denial merely on "concerns" and "questions").
Such is not the case here. The trial court found that the
Commission's decision to deny conditional approval of the preliminary
plat because of "safety reasons" was valid, noting that at least one
commissioner had cited as the bases for his vote the lack of a traffic study
and -- more importantly -- the "potential danger to neighborhood
residents caused by increased traffic in the area." And unlike the
majority, I believe that § 11-52-32(a) requires only that the "ground of
disapproval of any plat shall be stated upon the records of the municipal
planning commission." It is logical to conclude that, based on all the
37 SC-2023-0017
evidence presented at the Commission's November 18, 2021, meeting
(which the trial court had before it), the addition of 244 houses in a
subdivision will result in increased traffic and an increase in other
attendant dangers, about which the current residents expressed their
concerns. Surely the developers knew of those concerns as a result of
discussions they had with the residents before the Commission's
November meeting and as a result of views expressed by residents at the
meeting. I do not believe the "sufficiently clear" prong required the
Commission to record each safety concern that can be readily inferred
from the residents' expressions of concern and the circumstances at the
level of specificity the majority demands in order to affirm the trial
court's judgment and uphold the Commission's decision.
One final note. The majority rests its decision on a series of cases
interpreting § 11-52-32 as imposing rather specific and onerous time
constraints and recording requirements. See Boulder Corp., 345 So. 2d at
276 (requiring a planning commission that disapproves a plat to record
its ground for doing so within 30 days of the submission date); Sigler v.
City of Mobile, 387 So. 2d 813, 814 (Ala. 1980) (holding that a proposed
plan should have been automatically approved because "[a]n invalid
38 SC-2023-0017
reason is equivalent to no reason"); Ex parte Pine Brook Lakes, Inc., 617
So. 2d at 1016 (requiring that the "[n]otification of disapproval ... be
accompanied by reasons sufficiently clear and definite to inform a
developer 'wherein the plan failed to meet the requirements of the
regulations' "). But in so doing, I am concerned that the majority is
impliedly reaffirming interpretations of § 11-52-32 that are inconsistent
with the statute's plain meaning and that divest the Commission of its
proper authority and the deference its decisions are due to be afforded,
thereby rendering the arbitrary-and-capricious standard of review a
nullity. Seeing as no party has asked that we overrule any of the decisions
in those cases, however, I will withhold judgment on this matter until a
later date.
Regardless of the questionable tenability of those aforementioned
decisions, I believe the Commission recorded a valid and sufficiently clear
reason for its denial; therefore, I would affirm the trial court's judgment.
Wise and Stewart, JJ., concur.