PARKER, Justice.
Anne Bates Gibbons appeals the Shelby Circuit Court's summary judgment in favor of the Town of Vincent ("the Town"), the planning commission of the Town of Vincent ("the planning commission"),
White Rock owns 888 acres of undeveloped land situated within the corporate limits of the Town ("the land") and 86 acres of undeveloped land adjacent to the 888 acres and originally situated in an unincorporated area in Shelby County, outside the Town's corporate limits; the 86 acres has been annexed by the Town and is now within its corporate limits. Gibbons's complaint challenged the Town's rezoning of the land based on a rezoning application submitted by White Rock and its annexation of the 86 acres. White Rock sought the rezoning and annexation so that it could construct and operate a rock quarry on the property. Relevant to Gibbons's claims is an amendment to the Town's zoning code adopted in 2009 pursuant to which the land was rezoned ("the 2009 amendment") and the process by which the Town adopted the 2009 amendment. Specifically, Gibbons alleges that the Town did not satisfy the notice requirements of the statutes that give municipal corporations in Alabama the power to enact zoning ordinances and that set out the requirements for enacting such ordinances, § 11-52-70 et seq., Ala.Code 1975 ("the zoning statutes"), in adopting the 2009 amendment.
Marler testified that on June 24, 2009, she posted notice of another public hearing to be held by the planning commission on July 14, 2009; the purpose of the July 14, 2009, public hearing was to hear public comments on and to consider updating the Town's zoning code. A copy of the 2009 amendment was made available to the public at the July 14, 2009, public hearing.
Marler testified that on August 11, 2009, she posted notice of a public hearing to be held by the Town's council ("the council")
Marler testified that on September 9, 2009, she posted notice of the council's regular meeting to occur on September 22, 2009; on the agenda for the council's regular meeting, among other things, was "updating the present zoning ordinance." Marler testified that at its regular meeting on September 22, 2009, the council adopted the 2009 amendment. Marler also testified that on September 23, 2009, she posted the Town's zoning code, which included the changes made by the council's passage of the 2009 amendment.
On October 21, 2009, White Rock filed an application with the Town requesting that the Town rezone the land from "agricultural district" and "rural residential" to "special district" pursuant to § 5.14 of the Town's zoning code and allow White Rock to construct and operate a rock quarry on the land ("the rezoning application"). Section 5.14.5 of the Town's zoning code was added by the 2009 amendment. In response to a request by the Town, White Rock amended its rezoning application on November 3, 2009, with a survey of the land, as well as the 86 acres in the unincorporated area of Shelby County.
The Town does not employ land planners to assist with zoning applications. Instead, land planners at the Shelby County Department of Development Services advise and assist the Town with land-planning issues pursuant to a contractual agreement. Kristine Goddard, a land planner with the Shelby County Department of Development Services, assisted the planning commission and the council with processing and reviewing the rezoning application.
On February 16, 2010, the council held a regularly scheduled meeting, which members of the planning commission and the Zoning Board of Adjustment for the Town ("the ZBA") attended. Discussed at the meeting was the potential impact of the rezoning application on property adjacent to the land, which is owned by EBSCO Industries.
On February 26, 2010, Gibbons, as a property owner and resident of the Town, filed a complaint against the Town and the planning commission. Gibbons sought a writ of mandamus directing the Town and the planning commission "to cease considering the [rezoning] [a]pplication under the provisions of Section 5.14.5 of the [Town's zoning code],
On March 23, 2010, the planning commission held a specially called meeting to vote on the rezoning application. The planning commission unanimously agreed to recommend that the council "approve [the rezoning application] as modified, amend the [Town's] Comprehensive Plan and adopt an ordinance rezoning the [land] to Special Use District."
On April 6, 2010, White Rock petitioned the Town to annex the 86 acres situated outside the Town's corporate limits ("the annexation petition"). On April 14, 2010, White Rock filed a motion to intervene in Gibbons's action against the Town and the planning commission. The circuit court granted White Rock's motion on June 9, 2010.
On May 28, 2010, White Rock presented to the council proposed ordinances granting the rezoning application and the annexation petition ("the White Rock ordinances"). On June 1, 2010, the council held a public work session to discuss the White Rock ordinances. Following the work session, a regularly scheduled council meeting was held, during which the White Rock ordinances were introduced and read before the council for the first time. The parties do not indicate whether notice for this meeting was posted.
On June 2, 2010, Marler posted notice of a public hearing to be held on June 17, 2010, by the council; the purpose of the public hearing was to hear public comments on the White Rock ordinances. The June 17, 2010, public hearing was held.
On July 7, 2010, Marler posted notice of a special session of the council to be held on July 15, 2010; the purpose of the special session was to read and discuss the White Rock ordinances and to vote on their adoption. At the July 15, 2010, special session, the council considered and voted on the White Rock ordinances, passing them.
On September 21, 2010, the circuit court held a status conference at which, the parties agree, the circuit court orally bifurcated the case into procedural due-process and substantive due-process issues. The parties also agree that the circuit court ordered the parties to file summary-judgment motions concerning the procedural due-process issues.
On October 11, 2010, Gibbons amended her complaint, alleging that the Town's passage of the White Rock ordinances violated her procedural and substantive due-process rights; Gibbons also contested the Town's passage of the 2009 amendment. Specifically, Gibbons alleged in her amended complaint that "the Planning Commission's actions pursuant to Article 11 [of the Town's zoning code, as amended by the 2009 amendment,] are violative of the relevant substantive and procedural due process standards and constitute actions beyond the Planning Commission's statutorily created power."
On May 24, 2011, the Town and the planning commission filed a motion for a summary judgment. On the same day, White Rock also filed a motion for a summary judgment. In their summary-judgment motions, the appellees argued, among other things, that the Town's zoning code complies with Alabama law. Specifically, the appellees argued:
In her response to the appellees' summary-judgment motions, Gibbons argued that Article 11 of the Town's zoning code violated the zoning statutes in that Article 11 "improperly bestows the power to rezone property solely upon the Planning Commission, a framework that is clearly in contravention to Alabama law." On May 25, 2011, Gibbons filed a motion for a summary judgment. The circuit court held a hearing on the summary-judgment motions on August 4, 2011.
On November 3, 2011, the circuit court granted the appellees' summary-judgment motions, as follows:
Also on November 3, 2011, Gibbons filed a motion to dismiss her substantive due-process claims without prejudice. On December 14, 2011, the circuit court granted Gibbons's motion to dismiss, thereby adjudicating all of Gibbons's claims. Gibbons appealed.
We set forth the standard of review applicable to our review of a summary judgment in Martin v. Cash Express, Inc., 60 So.3d 236, 244 (Ala.2010), as follows:
First, Gibbons argues that the Town failed to comply with the notice requirement set forth in § 11-52-77(1), Ala. Code 1975, thereby rendering the 2009 amendment void. Section 11-52-77 provides, in pertinent part:
Gibbons argues that the Town failed to comply with the requirement of § 11-52-77(1) that notice of the 2009 amendment be posted at least 15 days in advance of its passage.
The appellees argue that, although the September 9, 2009, notice was posted only
Gibbons's argument ignores the fact that the Town posted notice on August 11, 2009, indicating that the council, the Town's legislative body, would hold a public hearing on the 2009 amendment on September 1, 2009. Nothing in § 11-52-77(1) requires the Town to post a 15-day notice of every meeting held concerning the 2009 amendment. Instead, § 11-52-77(1) requires that notice of the 2009 amendment be posted at least 15 days before the adoption of the 2009 amendment, which the Town accomplished by posting notice of the 2009 amendment on August 11, 2009, 43 days before its adoption by the council at its regular meeting on September 22, 2009. Therefore, the Town complied with the notice requirement of § 11-52-77, and we affirm the circuit court's judgment insofar as it held that the Town's adoption of the 2009 amendment complied with the notice requirements in the zoning statutes.
Gibbons also argues that the Town's passage of the ordinance annexing the 86 acres into the Town's corporate limits violated the notice requirements of § 11-52-77. Gibbons argues that the Town's zoning code, as amended by the 2009 amendment, "provide[s] that when a property is annexed into the Town it is, by ordinance, rezoned to A-1, one of the Town's statutorily created zoning classifications.... Thus, the Annexation Ordinance, if valid, effected a rezoning and therefore must comply with the fifteen (15) day notice requirement in section 11-52-77." Gibbons's brief, at pp. 36-37. We disagree.
Gibbons's argument is based upon a faulty premise. Article IV, § 4, of the Town's zoning code provides that, "[u]nless initially classified, any property hereafter annexed to the town shall be classified A-1 Agricultural District." (Emphasis added.) The zoning ordinance annexing the 86 acres into the Town's corporate limits specifically provides "that upon annexation, the [86 acres] will without further action be zoned and become a part of the Special District — Other Uses (Industrial) zoning district and be subject to all provisions of [the rezoning ordinance]." The 86 acres was not rezoned but, pursuant to the Town's zoning code, was annexed into the Town's corporate limits as a part of the special district. Therefore, Gibbons's argument that the 86 acres was rezoned and thus subject to the notice requirements of § 11-52-77 fails.
Next, Gibbons argues that "the rezoning procedures set forth in the [Town's] 2009 zoning code violate Alabama law." Gibbons's brief, at p. 24. Specifically, Gibbons argues that Article 11 of the Town's zoning code contravenes the zoning statutes in that Article 11 of the Town's zoning code grants the planning commission, which is not the Town's legislative body, the authority to rezone property. Section 11.1 of Article 11 provides:
Gibbons argues that the Town's zoning code violates the zoning statutes because, under the zoning statutes, a municipality's legislative body has the sole authority to rezone property and a planning commission may act only in an advisory capacity. As a result, Gibbons argues, the Town has failed to enact a zoning code allowing it to rezone property.
The Town argues that, regardless of § 11.1, § 5.14.5 complies with the zoning statutes by enabling the council, the Town's legislative body, to rezone property. The Town argues that § 5.14.5, which states in pertinent part that "[t]he location [of a special district] shall be recommended by the Planning Commission and approved by the Town Council," properly authorizes the council to rezone property. Gibbons argues in response that § 5.14.5 does not vest the council with the authority to rezone property. We agree with the Town.
In Ball v. Jones, 272 Ala. 305, 309-10, 132 So.2d 120, 123 (1961), this Court held:
Further, in Ferraro v. Board of Zoning Adjustment of Birmingham, 970 So.2d 299, 303 (Ala.Civ.App.2007), the Alabama Court of Civil Appeals held:
Section 11-52-70, Ala.Code 1975, allows a municipality to adopt "such ordinances as necessary to carry into effect and make effective the provisions of this article," thereby vesting the municipality with the legislative authority to zone land within its corporate boundaries. Further, § 11-52-71, Ala.Code 1975, allows only the "local legislative body" to "divide the municipality into districts...." In order for a municipality
Consistent with our precedent, the parties agree that a planning commission can act only as an advisory body. In Peebles v. Mooresville Town Council, 985 So.2d 388 (Ala.2007), this Court held that, pursuant to the zoning statutes, a planning commission is an advisory body and cannot be vested with the power to rezone property:
Peebles, 985 So.2d at 397. Further, in Fleetwood Development Corp. v. City of Vestavia Hills, 282 Ala. 439, 442, 212 So.2d 693, 694 (1968), this Court stated:
See also W.E. Shipley, Attack on Validity of Zoning Statute, Ordinance, or Regulation on Ground of Improper Delegation of Authority to Board or Officer, 58 A.L.R.2d 1083, 1089 ("It has frequently been held that the legislative body may not delegate to administrative officials the power to establish zones or zone boundaries, since this power is of the essence of the legislative function.").
Consistent with the zoning statutes, the Town enacted § 5.14.5 enabling the council, the Town's legislative body, to rezone property within the Town's municipal limits as a special district. Section 5.14.5 properly recognizes the planning commission as an advisory body by limiting its function to recommending the location of the proposed special district. Under § 5.14.5, the council, after receiving a recommendation from the planning commission,
Based on our holding that the Town's enactment of § 5.14.5 properly authorized the council to rezone property as a special district and that the Town's rezoning of the land, as well as the adjacent 86 acres annexed by the Town, as a special district was proper under § 5.14.5, we need not determine whether the remainder of the Town's zoning code complies with the zoning statutes.
Lastly, Gibbons argues that "the Town's purported rezoning of the 86 acres was void ab initio." Gibbons's brief, at p. 34. Gibbons argues that the Town failed to comply with § 11-52-85, Ala.Code 1975, which authorizes a municipality to pre-zone property that is in the process of being annexed into that municipality's corporate limits. Specifically, Gibbons argues that the Town did not comply with § 11-52-85(d), which provides:
White Rock filed the rezoning application, which included a request to rezone the adjacent 86 acres, on October 21, 2009. On March 23, 2010, the planning commission unanimously agreed to recommend that the council approve the rezoning application. On April 6, 2010, White Rock filed the annexation petition to annex the adjacent 86 acres into the Town's corporate limits. Gibbons argues that because the planning commission agreed to recommend that the council approve the rezoning application before White Rock filed the annexation petition, the annexation process relating to the adjacent 86 acres had not yet begun and, thus, the Town failed to comply with § 11-52-85(d).
We disagree. The process of annexing the 86 acres into the Town's corporate limits began when White Rock filed the annexation petition on April 6, 2010. Although White Rock filed its rezoning application before the annexation process began, the Town did not pre-zone the 86 acres until it passed the White Rock ordinances on July 15, 2010, which was after the annexation process began on April 6, 2010. Therefore, we hold that the Town complied with § 11-52-85 by pre-zoning the 86 acres after the annexation process began.
Based on the foregoing, we affirm the circuit court's judgment.
AFFIRMED.
MALONE, C.J., and WOODALL, STUART, BOLIN, SHAW, MAIN, and WISE, JJ., concur.
MURDOCK, J., concurs in the result.
