
    PROVIDENCE PARK, INC. v. MOBILE CITY PLANNING COMMISSION.
    2000134.
    Court of Civil Appeals of Alabama.
    Aug. 3, 2001.
    Rehearing Denied Sept. 21, 2001.
    
      Bradley R. Byrne of Adams & Reese, L.L.P., Mobile, for appellant.
    John L. Lawler of Finkbohner, Lawler & Ray, L.L.C., Mobile, for appellee.
   CRAWLEY, Judge.

Providence Park, Inc., is a corporation that owns the land upon which Providence Hospital is located; it also owns acreage surrounding the hospital, a total of approximately 265 acres. When Providence Park purchased it, the entire acreage was zoned B-3, a classification allowing heavy commercial uses such as automobile sales lots and nightclubs. When Providence Park first built Providence Hospital at its present location, off Airport Boulevard in Mobile, it developed a master plan for the development of the area. In 1991, Providence Park subdivided 45 acres of land and had it rezoned from B-3 to R-l, which is a single-family residential zone. It sold that land to Providence Estates, Inc., which developed a subdivision on the land. The subdivision contains homes valued between $200,000 and $500,000. When the subdivision lots were sold, the deeds contained restrictive covenants requiring that the landowners construct fences along the portion of their land abutting Providence Park’s land. In addition, Providence Park agreed to restrict the height of the buildings built within 250 feet of the Providence Estate property to two stories.

In March 2000, Providence Park applied to the Mobile City Planning Commission for a two-lot commercial subdivision of land abutting Providence Estates. The land, zoned B-3, was to be divided into two parcels, one which was to be developed as the site for a dentist’s office, which is actually a B-l, or light commercial, use. Providence Park had no plans, as of March 2000, for the other parcel. The original plans called for a 10-foot buffer zone, an undeveloped area left in its natural state, between the boundary of the Providence Estates subdivision and the utilization of the commercial property, for a parking lot or a landscaping area. Although the staff of the Planning Commission indicated approval of the plans, the Planning Commission itself, after a public hearing, approved the subdivision but with the requirement that the buffer zone be increased to 20 feet. Providence Park resubmitted its plans, again indicating the inclusion of only a 10-foot buffer zone, and, again, the Planning Commission approved the subdivision provided the buffer zone was increased to 20 feet.

Providence Park then petitioned the Mobile Circuit Court for a writ of mandamus directing the Planning Commission to approve the subdivision with only a 10-foot buffer zone. It argued that the Planning Commission’s requirement that the subdivision include a 20-foot buffer zone was arbitrary and capricious and exceeded its authority under the Subdivision Regulations of the City. After conducting a bench trial, the court denied the mandamus petition. Providence Park appeals.

The City Subdivision Regulation in question states:

“Buffer Planning Strips or Privacy Fence. Where a residential subdivision adjoins land zoned for or used for a railroad right-of-way, an industrial area, a commercial area, or other land use which would have a depreciating effect on the residential use of the land, a buffer planting strip or a wooden privacy fence of 6 feet in height may be required by the Planning Commission.”

A portion of the City’s Zoning Ordinances relating to buffers is also included in the record. It reads:

“1. PROTECTION BUFFER. Except as otherwise provided hereinafter, wherever the boundary of a building site in a B-l, B-2, B-3, B-4, I — 1, or 1-2 District adjoins an R-l, R-2, or R-3 District, there shall be provided on such building site a protection buffer strip not less than ten (10) feet in width.... The protection buffer provided may be a wall, fence, or screen planting that complies with the following regulations:
“(a) Wall or Fence. If a wall or fence is provided as a protection buffer, it shall be six (6) feet height, of a construction and a design approved by the Land Use/Code Administration Department.
“(b) Screen Planting. If screen planting is provided as a protection buffer, it shall be at least ten (10) feet in width, shall be planted with materials in sufficient density and of sufficient height (but in no case less than six (6) feet high at the time of planting) to afford protection to the residence district from the glare of lights, from blowing papers, dust and debris, from visual encroachment, and to effectively reduce the transmission of noise.”

The parties dispute whether this is a zoning case or a subdivision case. Under the caselaw dealing with actions like this one, it is clear that this case is not a zoning case; in such a case we would be concerned with the city’s legislative action in enacting a particular ordinance. Ryan v. City of Bay Minette, 667 So.2d 41, 43-44 (Ala.1995). Instead, this case involves the city’s administrative decision to approve or disapprove a particular land use under its zoning ordinances. Ryan, 667 So.2d at 44. The Planning Commission has no discretion but to approve a subdivision plan that conforms to those ordinances, see Smith v. City of Mobile, 374 So.2d 305, 307 (Ala.1979) (quoting E.C. Yokely, The Law of Subdivisions § 52 (1963 and Supp.1979)), and a mandamus action is available to compel such approval when it is denied for reasons unrelated to conformance with those ordinances. Smith, 374 So.2d at 308 (quoting E.C. Yokely, supra, The Law of Subdivisions § 53). “Mandamus is also appropriate where all applicable ordinances have been complied with, and the proposal is denied because adjacent property owners object.” Smith, 374 So.2d at 308.

Our supreme court has stated that planning commission regulations must “set forth sufficient standards to give applicants notice of what is required of them.” Smith, 374 So.2d at 308 (citing Powell, Law of Real Property, Chapter 79, “Subdivision Control,” 866). A planning commission is bound by its regulations, and those regulations, because they impose restrictions on the use of private property, are strictly construed. Id. at 307 (citations omitted). In addition, the regulations “ ‘must not admit of the exercise, or of an opportunity for the exercise, of any arbitrary discrimination by the municipal authorities.’ ” Id. (quoting Longshore v. City of Montgomery, 22 Ala.App. 620, 622, 119 So. 599, 600 (1928)).

After reviewing the City’s subdivision regulation in question, we conclude that the Planning Commission is clearly given the power to discriminate between property owners by determining, for example, the width of the buffer required. Providence Park was aware that a buffer might be required, and it in fact included a 10-foot buffer in its subdivision plans; however, it was not aware, and could not have known, what particular concerns might influence the Planning Commission to increase the buffer from 10 feet to 20 feet. Although we cannot disagree with the Planning Commission’s opinion that land uses permitted in a B-3 zone, such as automobile lots and nightclubs, might create light and noise “pollution” that would likely affect the residences in Providence Estates, the fact that the inartfully drawn regulation permits the totally discretionary determination of the size of the buffer needed in a particular location, unguided by any objective, clearly stated criteria, compels the conclusion that it fails to “set forth sufficient standards to give applicants notice of what is required of them.” See Smith v. City of Mobile, 374 So.2d at 308.

Accordingly, we conclude that the Planning Commission’s imposition of the additional 10 feet of buffer space was arbitrary and capricious and exceeded its power and that the trial court should have granted Providence Park’s petition for the writ of mandamus. The judgment of the trial court is reversed and the cause is remanded for entry of a judgment in accordance with this opinion.

REVERSED AND REMANDED.

YATES, P.J., and THOMPSON and PITTMAN, JJ., concur.

MURDOCK, J., dissents.

MURDOCK, Judge,

dissenting.

I respectfully dissent from the majority’s reversal of the trial court’s judgment; I would affirm the trial court’s denial of Providence Park’s petition for a writ of mandamus.

A petitioner seeking a writ of mandamus must demonstrate, among other things, “a clear legal right to the relief sought.” Alabama Dep’t of Mental Health & Mental Retardation v. State, 718 So.2d 74, 75 (Ala.Civ.App.1998). This court also has held that “in an appeal from the trial court’s denial of a petition for a writ of mandamus, [we] must indulge all reasonable presumptions favoring the correctness of the judgment appealed from.” Frazer v. Tyson, 587 So.2d 326, 328 (Ala.Civ.App.1990) (affirming decision of city planning commission). In addition, “[o]ur review ... is further limited by the strong presumption of correctness which attaches to the trial court’s findings when the evidence is presented ore tenus,” and “this court will not disturb the lower court’s findings unless there is a clear showing that the findings are plainly and palpably wrong.” Id.

The subdivision regulation that governs this case provides that

“[w]here a residential subdivision adjoins land zoned for or used by ... an industrial area, a commercial area, or other land use which would have a depreciating effect on the residential use of the land, a buffer planting strip or a wooden privacy fence of 6 feet in height may be required by the Planning Commission.”

(Emphasis added.) This regulation sets no maximum or minimum width for the buffer strip. (A separate Mobile zoning ordinance specifies that an owner of land zoned B-3 must provide a buffer zone of “not less than ten (10) feet in width,” but sets no maximum buffer width.) Thus, I interpret the subdivision regulation as allowing the Commission to exercise discretion in setting the width of a buffer strip it determines to be warranted in a given case. The Commission’s exercise of its discretion, done in an administrative capacity, is subject to revision only if its decision was arbitrary, capricious, or not in compliance with applicable law. Ex parte City of Fairhope, 739 So.2d 35, 38 (Ala.1999).

I cannot conclude that the facts of this case compel the conclusion that the Commission’s requirement of a 20-foot buffer (or only 10 feet in addition to the minimum required by the zoning ordinance) was arbitrary, capricious, or outside applicable law. The applicable subdivision regulation clearly provides that the Planning Commission may do what it has done in this case — require such buffer as it reasonably deems necessary to further the regulation’s stated goal of preventing depreciation in value of adjoining residential property. That distinguishes this case from Smith v. City of Mobile, 374 So.2d 305 (Ala.1979), upon which Providence Park and the majority rely.

In Smith, the subdivision ordinance under review stated that the characteristics of lots “shall be appropriate to the location of the subdivision,” but then set forth specific criteria regarding minimum lot size, maximum depth, position of lots in relation to streets, and other characteristics. These criteria were such as to allow for town-house developments like the one proposed, and the lots in Smith fully complied with them. Nonetheless, the surrounding neighborhood was an old one with large lots and abundant shrubbery and trees, and the neighbors objected to the proposed construction of townhouses in their neighborhood. As a result, the planning commission denied the subdivision request altogether, on the ground that it would be “out of character” with the neighborhood.

In striking down the Commission’s decision, our Supreme Court explained in Smith that the planning commission could not use its power “to further goals not designated by [the] statute.” 374 So.2d at 307. The Supreme Court concluded that the planning commission’s denial of approval of the requested subdivision on the ground that it was “out of character” with the neighborhood was “unrelated to its conformance with the Planning Commission’s own regulations and exceeded its statutory grant of power.” The same cannot be said in the present case. To the contrary, in the present case, the Commission is approving the requested subdivision, subject only to a condition that is expressly permitted by this applicable subdivision regulation. The Commission cannot be said to have exceeded its authority, as the municipal body did 'in Smith, because it is authorized by the terms of the regulation to require a buffer strip. It therefore may do so so long as the buffer strip it requires is not arbitrary and is in furtherance of the goal of the regulation.

Expert testimony before the trial court tended to show that commercial development allowed in an area zoned “B-3” (which allows for bars and nightclubs, grocery and department stores, taxicab services, automobile repair, and skating rinks) would cause depreciation in the value of adjacent residential properties such as those located in Providence Estates, which are of substantial value (from $200,000 to $500,000). Other testimony indicated that the Commission has previously required buffer strips of a similar width to protect adjacent residential property from noise, dust, pollution, and light associated with commercial activities, all of which cause adjacent property to depreciate. While Providence Park has a natural incentive to maximize the amount of its property it can market for development, its interests did not necessitate a finding by the trial court that the Commission’s requirement of a buffer strip of 20 feet is arbitrary or capricious such that a writ of mandamus was due to be issued.

In light of the facts in this case and the applicable standards of review, I cannot conclude that the trial court “plainly and palpably” erred in determining that Providence Park had not met its burden of proving the elements required for issuance of a writ of mandamus, including particularly that of a “clear legal right to the relief sought.” 
      
      . The restrictive covenants require that the fences be uniform in height, that they be constructed of the same materials, and that they join. The testimony at the hearing indicated that the fences in existence were seven feet high.
     
      
      . The zoning ordinance, while prescribing a minimum 10-foot protective buffer, which may consist of either a wall, a fence, or a screen planting, goes on to add that "[i]f a screen planting is provided as a protection buffer, it shall be at least ten (10) feet in width.” (Emphasis added.)
      In addition to the zoning ordinance's added emphasis on the fact that the 10-foot width of a buffer on B-3 zoned property is a minimum, it is equally or more important to note that the buffer contemplated by the zoning ordinance is a "screen planting.” A "screen planting” buffer, for purposes of the ordinance, is one in which the owner must plant materials "in sufficient density and of sufficient height (but in no case less than six (6) feet high at the time of planting) to afford protection to the residents’ district from the glare of lights, from blowing papers, dust and debris, from visual encroachment, and to effectively reduce the transmission of noise.” In contrast, the 20-foot buffer the Planning Commission required of the landowner in the present case was an undeveloped area left in its natural state.
      
     