
    Ernest KOKEN v. Hulan SMITH and The City of Huntsville.
    87-1542.
    Supreme Court of Alabama.
    Sept. 1, 1989.
    
      Danny D. Henderson of Clark, Scott, Spurrier, Rice & Henderson, Huntsville, for appellant.
    Clyde Alan Blankenship, acting City Atty., City of Huntsville, for appellees.
   ADAMS, Justice.

This case arises from a denial by the City of Huntsville of a building permit allowing the appellant, Ernest Koken, to construct a single-family dwelling on his property.

Koken purchased the acreage in question in May 1986. Twenty acres were located within the corporate limits of Huntsville; however, 80 acres were located outside the corporate limits, but within five miles of the corporate limits. See Ala.Code 1975, § ll-52-30(a). Although the property, when purchased, did not have access to a road, Koken thereafter purchased an easement to provide him with ingress to and egress from his land. This easement connected Koken’s property to Broad Armstrong Road.

Subsequently, Koken made application to the City of Huntsville for a building permit in order to construct a single-family dwelling. The permit was denied and the reason indicated was that Koken’s property did not access a public road. Koken then applied to the City of Huntsville Board of Adjustment for a variance, which was granted. Notwithstanding this fact, he was denied a building permit on the grounds that it would be a violation of Ala.Code 1975, § 11-52-35, which reads as follows:

“From and after the time when a planning commission shall have adopted a major street plan of the territory within its subdivision jurisdiction or part thereof, no building shall be erected on any lot within such territory or part nor shall a building permit be issued therefor unless the street giving access to the lot upon which such building is proposed to be placed shall have been accepted or opened as or shall otherwise have received the legal status of a public street prior to that time or unless such street corresponds with a street shown on the official master plan or with a street on a subdivision plat approved by the planning commission or with a street on a street plat made by and adopted by the commission or with a street accepted by council after submission to the planning commission by the favorable vote required in section 11-52-34.
“Any building erected in violation of this section shall be deemed an unlawful structure, and the building inspector or other appropriate official may cause it to be vacated and have it removed.”

(Emphasis added.) It is undisputed that in 1984, and again in 1988, the City of Huntsville adopted what purported to be a major street plan. Although Koken concedes that the map of the street plan encompasses his property, he argues that no streets are located there and, thus, that no plan has been adopted for that area. While we agree that the area Koken desires to build in is relatively barren with regard to the designation of future and/or present streets, we also note that a large portion of the area described by Koken encompasses Monte Sano State Park, which would not be subject to development. Furthermore, it is conceded by both parties that a portion of the land described by Koken is too mountainous to develop. It is clear to us from looking at the exhibits that a major street plan has been adopted by the City of Huntsville, and that that plan includes the area whereon Koken desires to build his house.

Koken next contends that this land is not within the subdivision jurisdiction of the City of Huntsville. However, a reading of the statute indicates otherwise. The correct wording of § 11-52-35 is not “From and after the time when a planning commission shall have adopted a major street plan within its subdivision jurisdiction.” Rather, the correct wording is “From and after the time when a planning commission shall have adopted a major street plan of the territory within its subdivision jurisdiction or part thereof.” Ko-ken’s property, while not subdivided, definitely falls within the territory within Huntsville's subdivision jurisdiction.

Finally, Koken argues that the easement giving him access to his property satisfies the requirements set forth in § 11-52-35, supra. While a technical reading of the statute indicates that this argument must fail, we are of the opinion that the statute is not so inflexible as the City of Huntsville contends it tó be. To hold that the statute prevents Koken from building on his property in any way would deny him his constitutional and common law right to use his property in a reasonable manner. Koken was originally granted a variance allowing him to build his single-family dwelling. To allow absolutely no room for variances where dictated by hardship would force us to hold § 11-52-35 unconstitutional. Because we are bound to ■construe a statute as constitutional if possible, we are of the opinion that the City may provide for variances in cases such as this one where there is obvious hardship. In cases such as this one, the building permit should be issued.

For the foregoing reasons, the judgment is due to be, and it hereby is, reversed, and the cause is remanded.

REVERSED AND REMANDED.

MADDOX, JONES, ALMON, SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur.

HORNSBY, C.J., concurs in the result.

HORNSBY, Chief Justice

(concurring in the result).

The Court reaches a conclusion with which I concur. I agree that Mr. Koken’s right to build on his land has been unreasonably interfered with; however, I reach this conclusion via a path different from that taken by the majority. I would hold that the strictures of Ala.Code 1975, § 11-52-35, relied on by the authorities of the City of Huntsville to deny Koken a building permit, do not apply in this particular instance.

My reasoning in this matter rests upon the proposition that zoning laws and planning laws that restrict the use an owner may make of land must be strictly construed. In Smith v. City of Mobile, 374 So.2d 305, 307 (Ala.1979), construing § 11-52-30 et seq., this Court stated:

“Since the Planning Commission's power to regulate subdivisions is derived from the statute, it follows that it cannot use that power to further goals not designated by that statute. As the Court of Appeals of Maryland stated in a case similar to this one, ‘... Municipal agencies can exercise only so much of the police power as may be expressly granted or necessarily implied_ The power' delegated to the Commission to formulate and publish rules and regulations is not a blank check; it cannot make ad hoc decisions which deny to a citizen the right to use his land lawfully.’ Baltimore Planning Com’n v. Victor Development Co., 261 Md. 387, 275 A.2d 478, 481 (1971). Statutes or ordinances which impose restrictions on the use of private property are strictly construed and their scope cannot be extended to include limitations not therein included or prescribed. E.C. Yokley, The Law of Subdivisions, § 53 (1963 and Supp.1979), citing Knutson v. State, 239 Ind. 656, 157 N.E.2d 469 (1959), affirmed on rehearing, 239 Ind. 656, 160 N.E.2d 200 (1959). See, also: Boxell v. Planning Com ’n of City of Maumee, 10 Ohio App.2d 25, 225 N.E.2d 610 (1967).”

It is clear from this language in Smith that restrictions on use that do not further the goal of the challenged statute must not be allowed. Section 11-52-35 does allow the planning commission to deny a building permit to a landowner when he lacks “access” to a street, as set out in the statute. There can be no clearer case of a restriction on use than the instance in.which a landowner is denied the right to build a house on his land. Thus, § 11-52-35 and its related sections must be strictly construed so that they may not be used as a vehicle to achieve goals not contemplated by the larger statute.

Section 11-52-35 is contained within Article 2, Chapter 52, of Title 11. Article 2 is entitled “Control of Subdivisions Generally.” All of the provisions of Article 2 are directed toward the control and management of subdivisions. Because the purpose of Article 2 is to control the growth of subdivisions, its terms should not apply to tracts of land that are not subdivided or are not part of larger subdivided tracts. This is in keeping with the strict construction analysis set out in Smith v. City of Mobile, 374 So.2d 305 (Ala.1979). Thus, because Mr. Koken’s property is neither subdivided nor part of a larger subdivision, § 11-52-35 does not apply and the denial of a building permit based on that section is unlawful, because there is no subdivision to control.

To allow the planning commission to continue its present practice would be impractical. Presently, the planning commission may, if it wishes to do so, adopt a major street plan within its five-mile “subdivision jurisdiction” and then stop all development of property that is not provided with “access” to streets that the commission draws on a planning map. Thus, the commission has power to pick and choose who may and who may not have “access” to a street and, consequently, who may receive a building permit. Thus, large undeveloped tracts of land, like Mr. Koken’s, may be rendered useless for the purpose intended by their owners. Such a power is patently beyond the contemplation of Article 2.

Section 11-52-35, thus, should not apply where a subdivision is not in place or is not contemplated. To allow otherwise goes beyond the stated purpose of Article 2, Chapter 52, Title 11. 
      
      . Koken proposed to locate his home on the 80 acres outside the city limits of Huntsville.
     
      
      . Again, we emphasize that Koken is not trying to build a subdivision or develop his property in an unreasonable manner. He merely desires to build a single-family dwelling.
     
      
      . We note again that much of the land surrounding Koken’s property on the major street plan did not have streets located there. To hold that the owners therein could build nothing on their properties and to provide them with no recourse for undue hardship would be inequitable.
     