Real Estate

Birmingham case creates zoning concerns in Mobile

An Alabama Supreme Court ruling on a Birmingham construction project could leave city councils across the state with a little less wiggle room in zoning decisions – and possibly subject developers to additional delays while even the most minor changes are considered.

The Oct. 27 ruling concerned a lawsuit over a 17-story apartment complex being built in the Five Points South section of Birmingham. It didn’t necessarily settle that case: Work on the Vesta complex didn’t stop, and other litigation is ongoing.

But it did have a definite impact in Mobile: By Tuesday morning the City Council’s attorney, Jim Rossler, was telling council members that a zoning standard they’d used since 1999 was no longer valid. Ironically, that standard had been set by another Alabama Supreme Court ruling — one which came in a bitter fracas over a west Mobile restaurant development, resulting in a case that Mobile lost.

"I don’t think there’s room to wiggle on that point," Rossler said after the meeting. "Which does change the way things are done."

As it met on Thursday, Mobile’s Planning Commission got a similar advisory from Richard Olsen, the city’s deputy director of planning and zoning. "It’s going to, one way or another, going to change the course of business as we’ve been doing it for years," he told commissioners.

State law lays out guidelines for how municipalities handle zoning changes. A key provision is that when a city moves to rezone property – from residential to business, for example, or from a light business use to a heavier business use – public notice must be published so that anyone potentially affected by the change has a chance to weigh in with their concerns and argue for relief.

In the code of Alabama, sections 11-52-77 and 11-52-78 spell out the public notice mechanism. Basically they say an ordinance can’t be passed unless it has been advertised and opened to public comment, and that that also applies to changes and amendments.

In late 1995 a zoning dispute erupted in west Mobile and those clauses came into play. A developer wanted to put a big Roadhouse Grill restaurant at 6150 Airport Boulevard. Nearby residents objected, saying they’d been led to believe that only small boutique shops would be put on the property. When the zoning was approved they sued, saying that the changes hadn’t been duly published and therefore the zoning was invalid.

The Roadhouse Grill case became a punishing, long-running slugfest for residents, city officials and the developer. Between January 1997 and January 1999 the City Council voted three times to approve the zoning, trying to make it stick as two different circuit judges ruled the first two attempts invalid. Somewhere in the middle of the fracas, council members voted via secret ballot to yank Councilwoman Bess Rich – who’d advocated for neighboring residents in the case – off the city’s Planning Commission and replace her with another council member.

Meanwhile, the restaurant got built and opened for business. And it stayed in business after the Alabama Supreme Court ruled in 1999 in favor of Cardinal Woods apartments. The ruling that the city hadn’t properly handled the zoning did not result in a retroactive shutdown.

The developer of a 17-story apartment complex under construction on Highland Avenue in Birmingham’s Five Points South said they won’t stop work on the project despite an Alabama Supreme Court decison. The Supreme Court, on Friday, reversed two lower courts’ rulings and said the rezoning of the property of that subject property from 2014 was invalid. A stop work…

But the court did a funny thing. It suggested, in passing, that it might have been okay if Mobile had passed an ordinance with minor differences from the advertised zoning plan.

This led to the city to adopt what some have called the Cardinal Woods standard: The idea that it’s okay to tinker with a zoning ordinance as long as the changes are minor and don’t affect the fundamental use of the property.

Ever since, things have worked like this: When Mobile’s Planning Commission forwards a recommended zoning change to the City Council, it goes through a cycle of advertisement and the council allows a public comment period at one of its meetings. Then the council votes on the ordinance.

Usually it doesn’t change anything. Sometimes it makes a significant change, in which case the ordinance has to be re-advertised. But sometimes it makes a minor change, to achieve a little more harmony between developers and nearby residents.

This usually happens in cases where neighbors aren’t opposed to a new development, but want a little protection from it – wider buffers, more trees, slightly different traffic flow. Sometimes the council brokers a minor compromise on such points, and proceeds with a vote.

"The council oftentimes, with the agreement of the applicant, has made these minor, non-use changes," Rossler said. "Oftentimes it’s done with the agreement of the applicant and the neighboring property owners."

Rich – who currently serves as the council’s representative on the Planning Commission — said it’s been satisfying to help people find middle ground, and has found such negotiations a valuable step in the process. "It does give voice to people who will be affected, to see if it can be mitigated in any manner," she said.

The idea, under the Cardinal Woods precedent, has been that that’s okay: If the change doesn’t affect the fundamental use of the property, and if everybody agrees to it voluntarily, the proposed ordinance doesn’t need another cycle of public notice and comment, and can be approved as-is.

That is no longer the idea.

In the ruling issued Oct. 27 in Ex parte Frank S. Buck and Martha Jane Buck, the court was brutally clear about that. At considerable length, it hammered home the point that "the plain language of SS 11-52-77 requires that the ordinance ultimately adopted be the same as the proposed ordinance that was published … To hold that only a proposed ordinance need be published, but something else, whether an ordinance that is insignificantly different from the proposed ordinance or an ordinance that is radically different, could be adopted, is contrary to the plain language of SS 11-52-77."

This doesn’t just change things in Mobile: It changes things for any city where the council might have been inclined to tweak zoning ordinances before voting.

"I think it does shake things up," said Lori Lein, general counsel for the Alabama League of Municipalities.

However, Lein said she didn’t necessarily think the change would be disruptive. "From our perspective, yes, perhaps this case is a further narrowing," she said. "but I don’t see it as overruling anything."

Lein said she often presents advice to municipalities on zoning procedures, and that questions about a Cardinal Woods-type approach don’t often come up. She’s not sure how commonly it’s used, she said. Her overall advice isn’t going to change much. Whatever you’re doing, "your city attorney’s got to be comfortable with it."

Unlike Rossler, she said she thinks there might still be some wiggle room. "That’s going to be a judgment call," she said.

For city councils, the scariest aspect of the change might be the possibility that previous zoning votes could now be challenged in court. But Rossler said he doesn’t expect that. For one thing, he said the Cardinal Woods standard was "the law of the land" at the time.

Rich said she also didn’t expect old cases to be reopened. "We were very cautious," she said of the council. It didn’t try to pass major changes off as minor tweaks. If it made a change that affected the use of the property, she said, the council sent the ordinance back to be advertised again.

For developers, the worst-case scenario is that when a city council makes even the most trivial change, their plans get put on hold. Rossler said re-advertising a zoning change would mean "a minimum of six weeks, if not an eight-week delay."

But maybe it won’t come to that. Several people involved in the discussion have said that they hope the process will change to accommodate the new status quo.

If city planners encourage more discussions up front, and developers make more of an effort to work with neighboring residents, they suggest, maybe less tweaking will be necessary when an ordinance finally hits the council agenda.

Olsen told the Mobile Planning Commission that there’d been talk of pushing developers to hold community meetings. "That’s something that’s in discussion," he said. "I’m not sure where it might go."

Nick Amberger, Mobile’s city engineer, told the Planning Commission that developers have a new incentive "to get all the wording resolved" at the planning commission stage, or face delays later.

"This might make everybody do their homework up front," said Libba Latham, a Realtor who is vice chairman of the Planning Commission.

Time will tell whether or not that’s wishful thinking. The Mobile City Council has something else to ponder: Next year it expects to consider a completely revised zoning code. Rossler and council members have expressed concern that they will have to be careful about that process, or get caught in a loop of lengthy delays.

For Rich, the matter also serves as a reminder of the hard-fought Roadhouse Grill case, which showed that residents can win the court battle, but still lose the development war.

"Nothing changed, as far as the building was built" by the time the Alabama Supreme Court ruled in 1999, she said. The Roadhouse Grill closed in 2007, after a decade in business. It was replaced by a Texas Roadhouse, meaning the impact on the surrounding neighborhoods stayed much the same.

"I always think about that when I drive by it," Rich said. "And I drive by it a lot."

Democratic Senate candidate Doug Jones, right, discusses health care issues with reporters in Huntsville last week. He’s accompanied by Huntsville cardiologist David Drenning. (Paul Gattis/
Prince Miteb bin Abdul Aziz, son of Saudi King Abdullah bin Abdul Aziz al-Saud, leaves the equestrian club following a horse racing competition in Janadriyah in the outskirts of the Saudi capital Riyadh, Saudi Arabia on October 23, 2008.

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