Agenda - Planning Commission - 04/01/1997

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Page 8 -- February 25, 1997 Z.B. to deny the permit. The court ruled the board's denial was proper, and Adelman appealed. DECISION: Reversed and returned to the trial court. The lower court should not have affirmed the board's decision because the decision was not supported by enough reliable evidence. An applicant for a conditional-use permit was entitled to a trial-type hearing, not a public hearing. The question to be decided at the hearing was whether Adelman had the right to a conditional permit. While the public could attend the hearing, the purpose of the hearing was to consider evidence, not public opin!on. The board should not have considered the residents' concerns and opinions when making its decision. The "ploy" of swearing in members of the public did not change their comments into reliable evidence. The public offered only their concerns and opinions, for which there was little or no factual support. Furthermore, while Adelman was cross-examined by members of the public, Adelman did not have the opportunity to question those who testified against the permit. I~ re Rocky Point Plaza Corp., 621 N.E. 2d 566 (1993). Right-of-Way -- Did owners on one side of street abut property on other side? Scott & Scott lnc. v. City of Mountain Brook, 682 So. 2d 42 (Alabam. a) 2996 The Bagbys and Scott & Scott Inc. owned property across the street from each other in the city of Mountain Brook, Ala. A right-of-way ran between the two properties. The right-of-way consisted of the street itself, plus a 20-foot strip on the Bagbys' side of the street. The outer 20 feet was used as the Bagbys' lawn. The Bagbys and the city sought to vacate the 20-foot portion of the right- of-way. Under state law, this could be done with the consent of abutting landowners. Scott & Scott objected, and asked a court to permanently prohibit it. Both parties asked for judgment without a trial. The court granted the Bagbys and the city judgment. It found the Bagbys were the only abutters to the 20-foot strip, so they didn't need Scott & Scott's consent to vacate it. Scott & Scott appealed. It argued the court incorrectly found it did not abut the right-of-way. DECISION: Reversed and returned to the triaI court. Scott & Scott abutted the right-of-way, so its consent was needed before the 20-foot strip could be vacated. It was undisputed that the right-of-way as a whole abutted Scott & Scott's property. While it may have appeared that the street separated the 20-foot strip from Scott & Scott's property, it did not. It didn't matter that the street was paved and the outer strip wasn't -- both were part of the same right-of-way which abutted the length of Scott & Scott's property.