White v. Board of Adjustment of City of Burmingham , 245 Ala. 48 ( 1943 )

The appeal is from a judgment of the Circuit Court of the Tenth Judicial Circuit of Alabama, affirming the action of the Board of Adjustment of the city of Birmingham, in sustaining the refusal of the building inspector to issue a permit, and in denying the petition of appellant, Mrs. Ethel White, for the right to continue renting apartments in her dwelling located at 3603 Cliff Road.

The city of Birmingham pursuant to express legislative authority, General Acts 1923, page 581 (carried into the Code of 1940 as sections 710 et seq. Title 62), entered into a comprehensive zoning scheme, passing an ordinance effective August 4, 1926, by which the city is divided into two major districts, one relating to the use of property, and the other to the matter of height and area. City of Birmingham Code of 1930, page 336.

No point is made touching the validity of the ordinance, and the principal question raised is the proper construction of subsection (e), paragraph 2 of section 45 thereof.

The pertinent part of the legislative enabling act, carried into the Code of 1940 as section 717, Title 62, reads as follows: "The governing body of the city shall provide for the appointment of a board of adjustment, and in the regulations and restrictions adopted pursuant to the authority of this section shall provide that the said board of adjustment shall, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent, and in accordance with general or specific rules therein contained. The board of adjustment shall consist of three members, each to be appointed by the governing body of the city, and shall hold office, and be removable at the will and pleasure of the governing body of such city. The board shall adopt rules in accordance with the provisions of any ordinance adopted pursuant to this subdivision. Meetings of the board shall be held at the call of the chairman and at such other times as the board may determine. Such chairman, or in his absence, the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of the board shall be open to the public. The board shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board and shall be a public record. Appeals to the board of adjustment may be taken by any person aggrieved or by any officer, department, board, or bureau of the municipality affected by any decision of the administrative officer. Such appeal shall be taken within a reasonable time as provided by the rules of the board by filing with the officer from whom the appeal is taken and with the board of adjustment a notice of appeal specifying the ground thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken. An appeal stays all proceedings in furtherance of the action appealed from unless the officer from whom the appeal is taken certifies to the board of adjustment after the notice of appeal shall have been filed with him that by reason of facts stated in the certificate a stay would in his opinion cause imminent peril to life or property. In such case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of adjustment or by a court of record on application or notice to the officer from whom the appeal is taken and on due cause shown. The board of adjustment shall fix a reasonable time for the hearing of the appeal, give public notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing any party may appear in person or by agent or by attorney. The board of adjustment shall have the following powers: To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this subdivision or of any ordinance adopted pursuant thereof. To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance. To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinances shall be observed and substantial justice done. In exercising the above mentioned power such board may, in conformity with the provisions of this subdivision, reverse or affirm wholly or partly or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken. The concurring vote of two members of the board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant or any matter upon which it is required to pass under any such ordinance or to effect any variation in such ordinance. The board of adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified."

In pursuance with the foregoing authority, the ordinance of August 4, 1926, established a board of adjustment and defined its powers and duties. In pertinent part it provides: Section 45 — Powers and Duties. "(e) The Board shall modify the strict application of the provisions of this ordinance and cause a permit to be issued upon such reasonable conditions as it may prescribe, in the following cases: * * * 2. For the conversion of a dwelling existing at the time of the passage of this ordinance in an 'A' residence district, into a two-family or multiple dwelling, provided said dwelling when so converted, shall otherwise comply as to height, area and other requirements, with the regulations herein provided for an 'A' residence district and for the height and area district within which it is located."

The dwelling now owned and occupied by appellant was built by another in 1911 and purchased by appellant in 1940. It was therefore in existence at the time the ordinance, supra, was passed in 1926. It contains nineteen rooms and five baths. Other than being converted into a multiple dwelling, it complies as to height, area and other requirements with the regulations provided for in said ordinance for an "A" residence district.

Appellant insists that the whole purpose underlying the adoption of paragraph 2, subsection (e) of section 45 of the ordinance, was to make sure that the provisions of the ordinance preventing multiple dwellings in "A" residence districts would not apply to "a dwelling existing at the time of the passage of the ordinance," provided said residence was converted in compliance with other regulations as to height, area, etc., for "A" residence districts. We cannot agree that such is a proper construction.

Rules governing in the construction of State statutes are likewise applicable to municipal ordinances. American Bakeries Co. v. City of Opelika, 229 Ala. 388, 157 So. 206. The legislative intent must be gathered from the four corners of the ordinance, and, if lawful, given effect by the courts. State ex rel. Ellis v. Griggs, 227 Ala. 681, 151 So. 850; City of Birmingham v. Southern Exp. Co., 164 Ala. 529, 51 So. 159.

One of the principal purposes of the board of adjustment is to apply the discretion of experts to exceptional instances where permits are desired, not strictly conforming to the regulations provided in the ordinance. That this is so is clearly indicated by the very language of section 717 of the enabling act, and subsection (e), quoted above. To rule in accordance with appellant's insistence would defeat the very purpose underlying the enactment of subsection (e) paragraph 2. It would render the board of adjustment useless in respect to the matters here considered. The intent of the ordinance controls, and when the spirit and purpose of the ordinance require the word "shall" to be construed as permissive, it will be done. Clearly, that construction of the word "shall" in subsection (e) is necessary to effectuate the purpose of the subsection. Montgomery v. Henry, 144 Ala. 629, 39 So. 507, 1 L.R.A., N.S., 656, 6 Ann.Cas. 965; Kinney v. House, 243 Ala. 393, 10 So. 2d 167; 57 Corpus Juris 552.

Section 719, Title 62, Code of 1940, provides: "Any party aggrieved by any final judgment or decision of the board of adjustment, may within fifteen days thereafter appeal therefrom to the circuit court or court of like jurisdiction, by filing with such board a written notice of appeal specifying the judgment or decision from which appeal is taken. In case of such appeal such board shall cause a transcript of the proceedings in the cause to be certified to the court to which the appeal is taken and the cause shall in such court be tried de novo."

The appeal before us is from the judgment of the Circuit Court of the Tenth Judicial Circuit of Alabama, rendered upon a trial de novo, in accordance with the foregoing Code section, of the issues heard and passed upon by the board of adjustment. The testimony was taken orally before the trial judge, without a jury. Where this procedure is followed, his judgment, unless palpably wrong, will not be here disturbed. Puckett v. Puckett,240 Ala. 607, 200 So. 420; Bonds v. Bonds, 234 Ala. 522,175 So. 561; McClurkin v. McClurkin, 206 Ala. 513, 90 So. 917; Wade v. Miller, 208 Ala. 264, 93 So. 905; Murphy v. May, 243 Ala. 94, 8 So. 2d 442.

There is nothing in the record to justify a disturbance of the finding of the trial judge.

We find no error in the record, and the judgment is due to be and is affirmed.

Affirmed.

GARDNER, C. J., and THOMAS, BOULDIN, and STAKELY, JJ., concur.

BROWN, J., dissents.

FOSTER, J., not sitting.