This is an appeal from a judgment of the circuit court which affirmed an order of the Board of Adjustment granting a variance for the use of a portion of a lot in the city of Montgomery.
William J. Gordy, Jr. applied to the Board of Adjustment for authority to use the west part of the lot in connection with a filling station which applicant proposed
Gordy has contracted to purchase lot ABCDEF which is now owned by the Kysers. As originally platted, lots 8 and 9 were intended to front on Upper Wetumpka Road. Lot 8 is the figure BCDHIJE and Lot 9 is ABEJKGF. As sold off and actually used, lots 8 and 9 front on Capitol Parkway and now constitute three lots, to wit: ABCDEF owned by the Kysers, DEFGH owned by the appellants, and GHIJK owned by Mrs. Park.
When the zoning ordinance was enacted by the city in 1948, lot 8 of the subdivision
Gordy proposes to build a gasoline service station on area BCDE. That appears to be permissible because BCDE is already zoned local business. He desires, however, to place concrete on the area ABEF so that vehicles can use ABEF in connection with the service station. The appellants oppose granting the variance.
The area across Upper Wetumpka Road is zoned light industrial and there is a shopping center located there. The area BCXYIJE is zoned local business and there appears to be local business in the area CXYIHD.
On appeal to the circuit court, the appellants demanded a jury trial. The court granted appellee's motion to strike the jury demand and heard testimony ore tenus without a jury. The judgment states that the court has viewed the premises and sets out the following findings:
Appellants argue that because Gordy did not own the property when he applied for the variance, and does not own the property now, he is not a "person aggrieved" within the meaning of that term as it is used in § 781, Title 37, Code 1940. Gordy's petition to the Board of Adjustment alleges that he "has entered into a purchase agreement for the" property. The agreement was admitted in evidence and appears in the transcript. While the sellers are not parties in this case and rights under the contract are not before us, we deem it proper, in deciding the question raised by appellants, to observe that the contract is not a mere option but appears to be an agreement on the part of Gordy to purchase on condition that the variance now sought be granted.
In Slater v. Toohill, 276 App.Div. 850, 93 N.Y.S.2d 153, the court held that the purchaser under an agreement conditioned upon the procurement of the variance may be deemed to be the agent of the owner or an aggrieved person in applying for a variance. In Appeal of Elkins Park Imp. Ass'n, 361 Pa. 322, 64 A.2d 783, 785, the
We are of opinion that the above cited cases follow the better rule. To hold that the owner at the time a zoning ordinance is adopted may apply for a variance but cannot transfer or assign that right or appoint an agent to make application to exercise it, tends to make the right depend on the identity of the owner instead of the situation of the property and the facts and circumstances of the case.
There is authority to the contrary. Blumberg v. Feriola, 8 A.D.2d 850, 190 N.Y.S.2d 543; Minney v. City of Azusa, 164 Cal.App.2d 12, 330 P.2d 255; Elwyn v. City of Miami, Fla.App., 113 So.2d 849; Gleason v. Keswick Improvement Ass'n, 197 Md. 46, 78 A.2d 164.
In Arrow Transportation Co. v. Planning & Zoning Commission, Ky., 299 S.W.2d 95, 96, cited by appellants, the court held that the variance or exception allowed by the board in that case "* * * would in effect change the property from a B-3 zone to an M-2 zone. * * *" and that such action was beyond the board's authority. Moreover, the interest of the applicant there was under a lease with an option to purchase. We think the variance there was different from the variance here in that the variance here does not in effect rezone the property, and also that the applicant here under the conditional contract to purchase stands in a position different from that of a mere holder of an option.
We are of opinion that the petitioner, Gordy, as equitable owner of the property under a contract to purchase conditioned on the grant of the variance, is entitled to apply for it. The fact that he is such a purchaser is a matter to be considered, but does not bar his right to a variance.
Neither do we think that the fact that the Kysers bought the property in 1952 after the zoning ordinance went into effect bars their right to a variance. Their situation is at least as favorable to them as that of a contract purchaser, and, as assignees of whatever right the owner at the time the zoning ordinance was adopted then possessed, the Kysers are not barred, although the fact of purchase subsequent to passage of the ordinance is a material element in determining the existence of unnecessary hardship. Lumund v. Board of Adjustment, 4 N.J. 577, 73 A.2d 545; O'Neill v. Philadelphia Zoning Board of Adjustment, 384 Pa. 379, 120 A.2d 901.
Appellants insist that the judgment is in error because Gordy failed to prove peculiar and exceptional circumstances causing unnecessary hardship or that the spirit of the zoning ordinance will be observed in granting the variance.
On these issues we note that the area on north side of Upper Wetumpka Road is zoned Light Industrial, is occupied by a shopping center and a gasoline service station opposite or nearly opposite ABC DEF; that on the west side of Capitol Parkway opposite, or nearly opposite, the lot of appellants there is a nonconforming business use; and that the variance does not authorize construction of any building
The witness Sellers, who had been in the real estate business ten years, testified that he was interested in the proposed sale of the Kyser property and was familiar with it, that in his opinion there was no practical way to develop the business portion of the Kyser lot without a variance except by constructing on it "* * * a cheap or small service station or drive-in * * * but the class of structure in operation would be * * * extremely undesirable * * *," that he would consider such a development "* * * in the sense of a sacrifice of this piece of property * * *," that if the business portion of the lot be developed for business ten or twelve feet of the house would be cut off, and that if the remainder of the house were allowed to stand it would rent for a nominal amount and rental income would be small.
The variance granted is set out in the order of the board as follows:
The rule as to burden of proof has been expressed as follows:
* * * * * *
Whether a variance should be granted depends on the facts of each case.
In a situation similar to the instant case, the holding appears to be that the use of land zoned for residence purposes for access to a gasoline filling station did not constitute a violation of the zoning ordinance. Faulkner v. City of Keene, 85 N.H. 147, 155 A. 195. We are not to be understood as holding as a matter of law that such use does not violate the zoning ordinance in the instant case. That question is not before us. We do hold, however, that the facts here support a finding that the variance to permit such use observes the spirit of the zoning ordinance.
We have carefully examined all the evidence offered by both parties. Without undertaking to set out all of it here, we are of opinion that the evidence presented is sufficient to sustain the burden of proof and, under the rules above set out, is sufficient to support a finding that unnecessary hardship will result from literal enforcement of the ordinance and that the variance granted observes the spirit of the ordinance. The assignments of error taking the point that the findings of the court are not supported by the evidence are without merit.
Assignments of error 14, 15, and 16 assert that the court erred in admitting in evidence certain drawings and a plot plan of the proposed service station. The only objection argued in brief is that these exhibits are irrelevant on the question of unnecessary hardship. It may be that the documents were not related to the issue of unnecessary hardship. That, however, was not the only issue. Another issue was whether or not the granting of the proposed variance would be in keeping with the spirit of the zoning ordinance. The exhibits tend to show the buildings to be constructed on the lot and the use of it that will result from granting the variance. They are relevant to the latter issue. In Housing Authority v. Decatur Land Co., 258 Ala. 607, 64 So.2d 594, the court held that map of a proposed replatting of property was admissible to show a plan to make lots more valuable. In Etowah County v. Clubview Heights Company, 267 Ala. 355, 102 So.2d 9, it was held that a map was properly admitted in connection with the testimony of a witness to show the use to which the land could be put. So in the instant case, the exhibits were relevant to show the use to be made if the variance be granted. The objection that the exhibits were irrelevant is not well taken.
When appellants appealed to the circuit court, they demanded a jury trial. Appellee moved to strike the jury demand on the ground that neither § 783, Title 37, Code 1940, nor any other statute, nor the Constitution, provides for or requires a jury trial on such appeal to the circuit court. The court granted the motion to strike and ordered a trial without a jury. This action is assigned as error.
If the court erred in striking the demand for jury trial the judgment must be reversed. Nooe's Ex'r v. Garner, 70 Ala. 443, 447; Ex parte Sumlin, 204 Ala. 376, 377, 86 So. 810; King v. Holtam, 219 Ala. 410, 122 So. 405. Whether that action was error depends upon the construction of the statute. As we understand appellants' argument, no issue of constitutional right to a jury trial is presented. The question is: Does the statute provide for jury trial when a party demands it? Section 783, Title 37, Code 1940, recites as follows:
We will refer to the cases cited by appellee to support the contention that the statute does not provide for a jury in the circuit court.
In re One Chevrolet Automobile, 205 Ala. 337, 87 So. 592, was an action to condemn an automobile under § 13 of the Prohibition Act of 1919, General Acts 1919, pp. 6, 13. The act provided that the proceedings be instituted "* * * in the circuit court by petition in equity * * *." The opinion does not indicate that the appellant even contended that the statute provided for jury trial. His contention was that § 11 of Constitution of 1901 guaranteed a jury. The court held that the constitutional guaranty did not apply.
Miller v. Gaston, 212 Ala. 519, 103 So. 541, was a suit in equity to quiet title to land under the in rem statute. There is no discussion as to whether or not the act provided for a jury trial. It appears to have been conceded that the act did not so provide. The opinion states:
The court held that because the bill alleged that complainants were in actual, peaceable, possession, it would seem that the bill was well filed as an in personam proceeding, and in that proceeding no right to a jury was guaranteed by the Constitution.
In Ex parte Thompson, 228 Ala. 113, 152 So. 229, 107 A.L.R. 671, the court held that the Constitution did not guarantee a jury trial in disbarment proceedings. The appeal was to review action of the Board of Commissioners of the State Bar before whom the proceedings were had. There appears no suggestion that the statute provided for jury trial.
In Ex parte Homewood Dairy Products Co., 241 Ala. 470, 3 So.2d 58, the court held that § 226, Title 22, Code 1940, does not provide for jury trial in the circuit court on review of an order of the Milk Control Board by certiorari. The statute provides that any person aggrieved by an order of the board may "* * * have such order * * * reviewed by a writ of certiorari by filing in the circuit court * * * a verified petition * * * and such court shall only consider such matters as contained in the petition. Upon such petition being so filed a writ of certiorari shall be issued out of such court * * * requiring said board to file an answer to said petition * * * and the case considered on said petition, the record of said board, and the answer filed by said board, but no new or additional evidence shall be taken or heard by the court. * * *" The statute there substantially differs from the instant statute, § 783, Title 37, Code 1940, which provides that appeals to the circuit court "be tried de novo."
In Tillery v. Commercial Nat. Bank of Anniston, 241 Ala. 653, 4 So.2d 125, the court held that § 216, Title 61, Code 1940, was not unconstitutional for failing to provide for jury trial in determination of validity of claims against solvent estates. The statute, as it then read, recited that, "* * the judge of the court * * * shall * * hear and pass on the validity of such claim * * *." The statute there considered also differs substantially from the instant statute.
In Campbell v. State, 242 Ala. 215, 5 So.2d 466, 471, the court affirmed a decree overruling demurrer to bill for injunction to restrain taxpayer from selling personal property at retail until he paid a sales tax assessment. In discussing the contention that because a sales tax assessment "* * is in legal effect a personal judgment, the
In City of Huntsville v. Pulley, 187 Ala. 367, 65 So. 405, this court stated the rule for construction of statutes with respect to the right to a jury trial on appeal to the circuit court. The sections of the Code of 1907 there considered recite as follows:
The court held that the foregoing Code sections provided for a trial by jury. Cf. §§ 545, 550, Title 37, Code 1940. The court said:
* * * * * *
In Ex parte City of Florala, 216 Ala. 351, 113 So. 312, 313, the court said: "We reaffirm the Pulley case as still the law." See, also: City of Tuscaloosa v. Hill, 14 Ala.App. 541, 69 So. 486.
It is clear that "trial by jury is not plainly inhibited" by § 783, Title 37, Code
In Ex parte Homewood Dairy Products Co., supra, commenting on City of Huntsville v. Pulley, supra, the court said [241 Ala. 470, 3 So.2d 61]: "* * * on such an appeal whether the trial should be without a jury or with a jury depends upon the issue to be tried. If it is a question of fact, the jury must act as a part of the court, when demanded. * * *"
On the question of allowing or disallowing a variance, there are issues of fact. In Norcross v. Board of Appeal, 255 Mass. 177, 150 N.E. 887, the court reviewed on petition for certiorari, an order of the Board of Appeal of the Building Department of the City of Boston. The board had granted a variance permitting erection of a building to the height of one hundred and fifty-five feet in a district where the height could not exceed one hundred feet under the general provision of the zoning law. The court said that the power to authorize variances is designed to be sparingly exercised, only in exceptional circumstances, and only for relief of specific instances peculiar in their nature; that that power to grant variances does not extend to modification of essential particulars of the scheme of the zoning act or to include changes in boundary lines of districts; that the chief purpose of zoning statutes relates to the public welfare; that protection of health and safety are important factors; and that the preservation of the property of others in the neighborhood is a matter of importance. In concluding that the order granting the variance was not without warrant of law, the court said:
In affirming an order granting a variance the Kentucky court said: "* * * Under the circumstances shown, the question of hardship is a question of fact. * * *" Stout v. Jenkins, Ky., 268 S.W.2d 643, 645.
The Appellate Court of Indiana reviewed a judgment which reversed an order of the Board of Zoning Appeals whereby the board had denied a variance. The standards for granting or refusing a variance set out in the opinion are similar to those in our statute, § 781, Title 37, Code 1940. The court said:
The court held that the evidence sustained the finding that the order denying the variance did not rest on a rational basis. See also City of East Chicago, Ind. v. Sinclair Refining Co., 232 Ind. 295, 111 N.E.2d 459, 465.
In Nelson v. Donaldson, 255 Ala. 76, 84, 50 So.2d 244, 251, we said:
"* * * Section 781, Title 37, supra, in so far as it relates to the power of the board to permit variances from the terms of the zoning ordinance merely delegates the power and authority, coupled with the duty to perform the function of hearing testimony, to determine if the facts are such as was intended by the legislature to entitle the property owner to a variance from the terms of the zoning ordinance. * *
* * * * * *
"The testimony was taken orally before the trial judge and his findings on the facts had the effect of a verdict of a jury * * *." (Emphasis supplied.)
Submission of issues of fact to a jury in zoning cases is not altogether unknown to the law. Barrington v. City of Sherman, Tex.Civ.App., 155 S.W.2d 1008, was a suit to compel issuance of a permit to build a garage. The appellate court held that the trial court erred to reversal in failing to submit to the jury the issue as to whether or not an amendment to the zoning ordinance changing proposed site of the garage from a manufacturing to a residential zone was dictated by public necessity.
One of the propositions of law in appellee's brief recites as follows:
We are of opinion that § 783, Title 37, Code 1940, provides for jury trial on timely demand of either party. It follows that striking appellants' demand was reversible error.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.