Appeal of Final Decision Of Zoning Board of Adjustment

Teachers’ Retirement System of Alabama, et al. v. Baldwin County Planning and Zoning Dept., et al., [Ms. CL-2022-0697, Aug. 11, 2023] __ So. 3d __ (Ala. Civ. App. 2023). In a unanimous (Thompson, P.J., and Moore, Edwards, Hanson, and Fridy, JJ., concur) per curiam opinion, the court affirms the Baldwin Circuit Court’s judgment affirming a final decision of the Baldwin County Board of Adjustment (“the Board”) reversing the county zoning administrator’s determination that RSA was entitled to the issuance of a land-use certificate under the applicable Baldwin County zoning ordinance to construct a 5-story building with 23 separate lodging units on a narrow strip of land located just north of the marina at the Grand Hotel.

The court first rejects RSA’s argument that it was entitled to de novo review of the Board’s decision rather than the record review conducted by the circuit court and reiterates “‘[t]he general rule for review of administrative agency action …, the [reviewing] court is limited in its review to the record made in the agency’s proceedings.’” Ms. *5, quoting Waldrop v. Alabama State Bd. of Pub. Acct., 473 So. 2d 1064, 1066 (Ala. Civ. App. 1985), some internal quotation marks omitted. The court notes that, like the circuit court, the appeals court “accord(s) a presumption of correctness to the decision of the Board…. In effect, as PCPOA [Point Clear Property Owners Association] correctly notes, RSA must disprove the proposition that substantial evidence exists as to all of the six grounds relied upon by PCPOA before the Board.” Ms. **6-7.

RSA attacked the Board’s jurisdiction on the ground that “the Board should not have heard PCPOA’s appeal because …, PCPOA was not, under § 45-2- 261.11 [Ala. Code 1975] , a ‘person’ that was ‘aggrieved’ by the administrator’s decision to issue a land-use certificate …” Ms. *10.

Before the Board, RSA did not lodge any objection to PCPOA’s allegation that it was a ‘person aggrieved’ with a right to appeal. The court holds “[b]ased on the reasoning in [City of Mobile v.] Lee[, 274 Ala. 344, 148 So. 2d 642 (1963)], RSA thereby waived that particular challenge, and, thus, that challenge could not be considered in subsequent appellate proceedings.” Ms. *12.

The court also rejects RSA’s argument that PCPOA had no right to appeal because “Section 18.2.6 refers only to appeals by applicants who have been denied land-use certificates.” Ms. *14. The court holds “[b]y identifying the right of an applicant to appeal from the denial of a land-use-certificate application, § 18.2.6 of the applicable local zoning ordinance does not negate the broad right of appeal established in § 45- 2-261.11 [Ala. Code 1975] – a state statute – because an ordinance cannot prohibit an action that is provided by its own enabling act. See Riverbend P’ship v. City of Mobile, 457 So. 2d 371, 371 (Ala. 1984). Further, § 18.2.6 cannot properly be construed so as to conflict with the broad right of appeal set forth in § 18.5.2 of the zoning ordinance because the various provisions of a single zoning ordinance relating to the same subject matter should be read in pari materia.” Ms. *15.

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