Section 11-52-77, Ala. Code 1975 - Strict Compliance - Mootness: Ex Parte Frank S. Buck, Et Al.


Ex parte Frank S. Buck, et al., [Ms. 1151011, Oct. 27, 2017] __ So. 3d __ (Ala. 2017). This decision by Justice Shaw (Stuart, C.J., and Bolin, Main, Wise, and Bryan, JJ., concur; Parker and Sellers, JJ., dissent) reverses on certiorari review the decision of the Court of Civil Appeals affirming the trial court’s judgment in favor of the City of Birmingham in a challenge to a rezoning ordinance by property owners Frank and Martha Buck.

The Court granted certiorari review on the narrow question of “whether notice of ordinance 1949-G was properly published pursuant to § 11-52-77 and § 11-52-78.” Ms. *9.

While the case was pending before the Supreme Court on certiorari review, the city passed a new zoning ordinance replacing the zoning ordinance challenged by the Bucks. The Court declined to find the passage of the new ordinance to moot the controversy before it, because the Bucks had also filed a challenge to the new ordinance. Ms. *12. The Court reasoned that if the challenge to the new ordinance was sustained, the question of the validity of the zoning ordinance before the Court would be material. Ms. *13. Justices Sellers and Parker dissented from this holding. The dissenters would have dismissed the appeal for lack of a justiciable controversy. Ms. *32.

On the merits, the Court rejected the city’s contention that substantial compliance with § 11-52-77 is sufficient. The Court held

[T]he plain language of § 11-52-77 requires that the ordinance ultimately adopted be the same as the proposed ordinance that was published....

In this case, the proposed ordinance that was published in full was not the ordinance that was adopted; instead, the proposed ordinance that was published was later amended, and the amended ordinance was adopted. 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 § 11-52-77.

Ms. *29-30.

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