Agenda - Planning Commission - 10/06/2005

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PageS--August25,2605 g.g. Zoning Code -- City claims governmental use not subject to code Neighbors argue warehouse in residential area is a nuisance Citation: Cunningham v. City of Attalla, Court of Civil Appeals of Alabama, No. 2031024 (2005) ALABANLK (06/30/05) -- The city of Attalla owned a warehouse to store city property and equipment. The building housed a spare fire truck, tractors and mowers, seasonal decorations, PVC pipe, cold-mix asphalt, and Other city equip- ment and materials. The warehouse was located in a residential district. Neighboring property owners sued, claiming the warehouse was a nui- sance and that the city was violating the zoning code. The court rUled in favor of the city, finding the city was not subject to its own zoning ordinance because it was using the Prbperty for a-governmental, as opposed to a corporate or proprietary, function. The property owners appealed, arguing the city was protected only from its zoning code when it was legally mandated to use or build on the property. DE CZ,sION: Affirmed. The city's use of the warehouse should be classified as a protected govern- mental function. The lower court's focus on mandatory activities was misplaced. The ap- peals court found there was no reason to believe the warehouse would be subject to the city zoning regulations if the structure had been one the county was authorized, but not mandated, to build. The city had the power and legal authority to own or operate the building or to make use of the items stored therein. Plus, the city was authorized to acquire, own, and operate the building by several statutes. The items stored in the building were likewise necessary and proper to carrying out various functions the city was authorized and empowered to carry out. Finally, the ordinary meanings of the terms =overnmental and "propri- · etary' supported the conclusion that the city's use of the building was =overnmental. The commonsense meaning of "governmental" included those activities reasonably necessary to carry out the city's autl~orized functions and activities. Conversely, the building and the items stored in the building were not "proprietary" in the usual sense of that word because the city had no commercial or business purpose for the building or the stored items; the city received no revenue from the-use of the building or the stored ~tems; the city did not make the building available to the public or to commercial establishments; and the building was not part of any com- mercial activity. see also: Bailey v, R.i~. Garrison Tr[~cking Co., 834 So.2d ]22 (2002). see also: Lane v. Zoning Board of Adjustment of Tatladega, 669 So.2d 958 (1995).. © 2005 Quinian Publisi~ing Group. Any reproduction is prohibited. For more information please call (617) 54g-0048. 2O2