Appeal From Board of Zoning Adjustment – Indispensable party

Herfuth and Anderson v. Gulf Shores Board of Zoning Adjustment, [Ms. 2200636, Feb. 4, 2022] __ So. 3d __ (Ala. Civ. App. 2022). The court (Edwards, J.; Thompson, P.J., and Hanson and Fridy, JJ., concur; Moore, J., concurs in the result) reverses the Baldwin Circuit Court’s judgment granting an area variance to Marc Bradley on a lot in Gulf Shores. “‘An area variance permit[s] deviation from zoning requirements regarding the construction and placement of structures on the property whereas a use variance permit[s] deviation from the zoning requirements regarding the use of the property.’” Ms. *2, n.1., quoting Ferraro v. Board of Zoning Adjustment of Birmingham, 970 So. 2d 299, 304 (Ala. Civ. App. 2007) (some internal quotation marks omitted).

Adjoining owners Herfuth and Anderson had appealed to the circuit court a decision of the Gulf Shores Board of Zoning Adjustment (“the board”) granting an area variance to Bradley. Herfuth and Anderson did not name Bradley in their de novo appeal to circuit court and Bradley did not intervene. Ms. *14.

The court “notes that § 11-52-81 [Ala. Code 1975] authorizes an appeal to the circuit court from the decision of a board of adjustment and that ‘the action in such court shall be tried de novo.’ On appeal from a decision of a board of adjustment, ‘[t]he circuit court sits as the Board of Zoning Adjustment and proceeds as if no hearing has ever been held. And, as a consequence, the applicant for a ... variance has the burden of proving again its need for the variance.’ Board of Zoning Adjustment of Hueytown v. Warren, 366 So. 2d 1125, 1127 (Ala. 1979).” Ms. *7.

The court concludes that Bradley (who testified at the trial de novo) was a necessary party and explains

When a party who is required to be added pursuant to Rule 19 is present at trial and testifies, “it [is] incumbent upon the trial court, sua sponte, pursuant to the mandate of Rule 19, to order that [he or she] be made a party defendant and to proceed to adjudicate the respective interest of the parties.” Davis v. Burnette, 341 So. 2d 118, 120 (Ala. 1976). The failure to add such a party in the trial court “necessitates” that the appellate court “dismiss[] the cause without prejudice or ... revers[e] with directions to allow the cause to stand over for amendment.” J.C. Jacobs [Banking Co. v. Campbell, 406 So. 2d 834, 850-51 (Ala. 1981)].

Ms. **11-12.

The court reverses and remands for failure to join Bradley and notes “[t]he disadvantage to Bradley’s ability to protect his interests as to his own variance application can be seen by considering his position as a nonparty if the trial court had ruled against, rather than in favor of, that application, because Bradley, as a nonparty, would not have been able to appeal that decision.” Ms. **14-15.

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