IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA

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Ronald Jefferson
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ELECTRONICALLY FILED 12/18/2012 2:11 PM CV-2012-000428.00 CIRCUIT COURT OF MADISON COUNTY, ALABAMA JANE C.

1 ELECTRONICALLY FILED 12/18/2012 2:11 PM CV CIRCUIT COURT OF MADISON COUNTY, ALABAMA JANE C. SMITH, CLERK IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA JEFFERSON JOSEPH P, ) Plaintiff, ) ) V. ) Case No.: CV ) BROWN ANN, ) BOARD OF ADJUSTMENT OF THE ) CITY OF HUNTSVILLE AL, Defendants. ) FINAL ORDER This case came for final hearing before the undersigned Circuit Judge with the parties being personally present and represented by their respective attorneys of record. This case is an appeal from the decision of the Defendant, Board of Adjustment of the City of Huntsville, Alabama, granting an application filed by the Defendant, Ann Brown, for a zoning variance requesting a reduction in the number of the required parking spaces for the property located at 2366 Whitesburg Drive, Huntsville, Alabama, which she owns and uses to operate her business known as Ann s School of Dance. Alabama law imposes a burden on an applicant for a variance from a municipal zoning ordinance to show that a literal application of the zoning ordinance would result in an unnecessary hardship to the property. Ala. Code Sec (d)(3) Subjective claims of perceived hardship of a financial or personal nature are legally insufficient to prove unnecessary hardship. Priest v. Griffin, 222 So.2d 353 (Ala., 1969); Board of Zoning Adjustment of Dothan v. Britt, 456 So.2d 1104 (Ala.Civ.App., 1984); Ex parte Chapman, 485 So.2d 1161 (Ala., 1986). A self-created hardship cannot form the basis for relief. Behm v. Board of Zoning Adjustment of Mobile, 571 So.2d 315, 316 (Ala.Civ.App., 1990); Ferraro v. Bd. Of Zoning Adjustment of City of Birmingham, 970 So.2d 299, 307 (Ala.Civ.App., 2007) In an appeal of this type, the power and jurisdiction of a circuit court is the same as that conferred on the board of adjustment. Nelson v. Donaldson, 50 So.2d 244, 248 (Ala., 1951). The scope of this Court s inquiry is limited to only those issues which could properly be presented to the Board of Zoning Adjustment. City of Homewood v. Caffee, 400 So.2d 375, 377 (Ala., 1981). A board of adjustment, and therefore this Court on an appeal tried de novo, has the power [t]o authorize upon appeal in

2 specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done. Ala. Code, Sec (d)(3)(1975). When a variance is being sought, this Court must consider the public interest, the interest of the people in the given use district, and whether the zoning ordinance will result in an unnecessary hardship for the individual requesting the variance. Board of Adjustment of Prichard v. Creel, 500 So.2d 1147, 1148 (Ala.Civ.App., 1986). The issuance of the existence of the requisite hardship is the pivotal and primary consideration. Priest v. Griffin, 222 So.2d at 356 (Ala., 1969); see also Lawless v. Smith, 481 So.2d 1144, 1146 (Ala.Civ.App., 1985) citations omitted). [W]hether an unnecessary hardship exists is a question of fact and the resolution of this issue requires an application of the law to the facts. Bd. Of Zoning Adjustment for City of Fultondale v. Summers, 814 So.2d 851, 855 (Ala., 2001)(citing Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So.2d 415, 417 (Ala., 1994). The requisite hardship must be related to the land itself without regard to mere personal hardship-economic or otherwisethat an individual property owner perceives that he may face at any given period of ownership of the land. Ex parte Chapman, 485 So.2d 1161, 1164 (Ala., 1986); Ferraro v. Bd. of Zoning Adjustment of City of Birmingham, 970 So.2d 299, 307 (Ala.Civ.App., 2007). Economic hardship alone does not provide sufficient justification for the Board (or the Court) to grant a variance from the Zoning Ordinance. Board of Adjustment of Prichard v. Creel, 500 So.2d 1147, 1148 (Ala.Civ.App., 1986)(citing Board of Zoning Adjustment v. Britt, 456 So.2d 1104 (Ala.Civ.App., 1984). FINDINGS OF FACT This is a complex and difficult case. Ann s Studio of Dance has served this community for 44 years, during which it has educated children in dance and gymnastics, has sent some of its students to colleges and universities on scholarships for dance, has mentored school programs and productions, and has participated in charitable events across the City of Huntsville. Ann Brown is the sole owner of the business and the real property which is the subject of this case, which is zoned C-1, and sits on two (2) lots owned by Ann Brown in Gwyn Home Sites Subdivision, which is primarily a residential area, except for businesses which front on Whitesburg Drive and on Bob Wallace Avenue on the north side of the subdivision.

3 In 2005, Ann Brown decided to renovate the property in which Ann s School of Dance was located, including tearing down an old house which fronted on Whitesburg Drive, replacing it with a three-story brick building, and renovating the two dance studios that she had constructed earlier behind the old home. She hired an architect who prepared building and site plans which were submitted to the City of Huntsville for approval. However, those plans misrepresented the square footage of the buildings to be renovated and constructed on the property, as well as misrepresenting the number of parking spaces which would service the constructed/renovated property. The plan submitted by her architect to the City of Huntsville for approval actually misrepresented that there would be more parking spaces on the property after renovation than would be required by the zoning ordinances of the City of Huntsville in effect at that time. As a result of that misrepresentation, a variance for parking was not deemed necessary, nor was a parking variance requested at that time. There were variances that were needed, requested, and approved for the front setback and landscaping for the renovated building. A certificate of occupancy was thereafter granted by the City of Huntsville on July 14, 2006, and the business opened in the constructed/renovated buildings in August, Ann Brown expended a substantial amount of money for the renovations to be done on her property, including the installation of specialized floors for dance studios, in an attempt to make Ann s School of Dance an elite and specialized dance studio. The Defendant, Ann Brown, is an assertive, successful businesswoman. However, she is unskilled and untrained in the areas of architecture and construction, and those services were performed for her by the architect and contractor she chose and hired for the construction/renovation project on her property. The architect made significant mistakes in the preparation of the building plans submitted to the City of Huntsville, including not taking into consideration what should have been the requirements for the size of a parking space on the property and the number of required parking spaces for the property in its renovated state. In fact, the buildings as constructed and renovated contain approximately 8000 square feet, with the remaining land only able hold 18 lawfully sized and situated parking spaces, not the 24 parking spaces determined by the City of Huntsville to be required, based on the zoning ordinance of the City of Huntsville in effect in It appears to this Court that not only the Defendant, Ann Brown, but also the City of Huntsville, relied on the purported expertise of the architect in approving the building and site plans submitted for approval, and in issuing the required certificate of occupancy for the buildings as constructed and renovated. A complaint was lodged with the City of Huntsville in 2012, and the Zoning Board for the City of Huntsville issued a notice to Ann Brown that she

4 was in violation of the zoning ordinances of the City of Huntsville, with the violation being that she needed 24 parking spaces to service her property. Thereafter, she requested a variance, which was denied. She then appealed to the Board of Adjustment for the City of Huntsville, seeking a reduction in the required number of parking spaces for her property to 18, which was granted, subject to a condition that the employees of the business park offsite. That decision has been appealed to this Court. Even though her business has fewer students now than it did in 2005, it still has 582 students at present, most of whom are under driving age, and must be dropped off and picked up for classes at Ann s School of Dance, which begin after school at approximately 3:30 p.m., and end at approximately 9:00 p.m. on week nights during the school year. When her patrons, as Ann Brown referred to them in her testimony, come to pick up the dance students, they do not come in and park in the parking spaces provided on her lot; but instead, they enter, as required by Ann Brown, through the driveway located on Center Avenue, line up in rows of two, sideby-side, pick up their students, and exit one vehicle at a time through a more narrow exit onto Whitesburg Drive, which is a heavily traveled road, through a funneling procedure. Some patrons are allowed to even turn left onto Whitesburg Drive as they exit the Ann s School of Dance property, even though it is illegal to do so. Numerous patrons picking up dance students line up in their vehicles along Alabama Street and Center Avenue, waiting to enter the Ann s School of Dance entrance on Center Avenue, creating an extremely congested traffic situation and a dangerous and unsafe condition, not only for those patrons, but for any other citizens who travel on Alabama Street and Center Avenue during that period of time. In addition, the owners of homes in that subdivision, known as Gwyn Home Sites, are often denied access to their own driveways, and the opportunity to even park on the street in front of their homes, as a result of the severe traffic congestion created by the patrons waiting to pick up the students from Ann s School of Dance. Even though Ann Brown staggers somewhat the starting and ending times for her classes, the traffic congestion is so bad that it denies the owners and occupants of homes in that area, including the Plaintiff, Joseph P. Jefferson, the quiet enjoyment of their own homes to which they are entitled. It does not appear from the evidence that the enforcement of the applicable traffic laws by the City of Huntsville has had any significant impact on the traffic congestion caused by the patrons of Ann s School of Dance. Marie Bostick, an official for the City of Huntsville, testified that her department had been receiving complaints about the traffic congestion for over five years. In addition, concerns have been expressed that the resulting traffic congestion prohibits the use of Alabama Street and Center Avenue for emergency

5 vehicles, such as fire trucks and ambulances, if access to that area were to be needed in an emergency situation. This Court finds that a literal application of the zoning ordinance of the City of Huntsville in this particular case would result in an unnecessary hardship to the subject property. In addition, this Court does not find that the unnecessary hardship was self-created or self-inflicted by the Defendant, Ann Brown. However, this Court is also required to take into consideration the public interest and the interest of the people in the area around the subject property. As a result, this Court finds, after taking into consideration the evidence presented and all of the factors which it must consider in this case, that the granting of the requested variance should only be approved with the imposition of the certain specific conditions, to balance the interest of the Defendant, Ann Brown, and her continued use of her property for the operation of Ann s School of Dance, and the interest of people in the adjoining subdivision, who have a right to the quiet use and enjoyment of their own homes. ORDERS OF COURT This Court, having considered the sworn testimony presented ore tenus, the exhibits admitted into evidence in the trial of this case, and the arguments and contentions of the parties and counsel, enters the following orders: 1. The variance requested by the Defendant, Ann Brown, to reduce the required number of parking spaces on the property located at 2366 Whitesburg Drive, Huntsville, Alabama, to 18 lawful parking spaces is granted; subject, however, to the following express conditions: (a) All of the required 18 parking spaces must be lawfully sized and located as required by the ordinances of the City of Huntsville, Alabama; and, (b) The Defendant, Ann Brown, must provide and utilize an appropriate shuttle service for the transportation of the students to and from the Ann s School of Dance property, with the meeting place for pick up and return of the students to be at a site which is located outside of Gwyn Home Sites Subdivision. This shuttle service shall be the exclusive method for students of Ann s School of Dance to be brought to and taken from Ann s School of Dance for the classes they are to attend on the subject property; and,

6 (c) Otherwise, all other persons who enter the subject property in a motor vehicle, including employees, staff, vendors, parents and others, shall be required to enter into and park in one of the 18 lawful parking spaces herein allowed on the subject property, and shall not be allowed to park their vehicle, other than in one of the lawful parking spaces herein allowed; and, (d) Appropriate signage shall be prepared and installed at the Whitesburg Drive exit on the subject property which requires and allows only a right turn out of the subject property onto Whitesburg Drive. 2. While this Court understands and appreciates that the specific conditions set out above will cause the Defendant, Ann Brown, to incur additional operating expenses for her business, and will no doubt cause some inconvenience for the patrons of that business, the specific conditions set out above are deemed by this Court to be necessary to balance the granting of the requested variance with the interests and rights of the owners and occupants of the homes in that adjoining residential area; and are deemed by this Court to be necessary for the spirit of the zoning ordinance to be observed and substantial justice done. 3. This Court expects the appropriate agencies of the City of Huntsville to properly monitor and enforce the conditions herein imposed on the granting of the requested variance. 4. All other claims presented in this case are denied. 5. The costs of court incurred in this action are taxed one-half (1/2) to the Defendant, Ann Brown, and one-half (1/2) to the Plaintiff, Joseph P. Jefferson, for which execution may issue as provided by law. DONE this 18 th day of December, /s/ WILLIAM K. BELL CIRCUIT JUDGE

Variance Application And Notice of Appeal To The Board of Adjustment

MUST BE FILED IN CITY CLERK'S OFFICE BY 9:00am ON HEARING DATE:10:00am Variance Application And Notice of Appeal To The Board of Adjustment Part 1. General Information 1. Application Form. Be sure to thoroughly