This opinion is subject to formal revision before publication in the advance sheets of
On Application for Rehearing.
This court's opinion of May 5, 2017, is withdrawn, and the following is substituted therefor.
Shoal Creek Land & Cattle, LLC ("Shoal Creek"), appeals from a judgment entered by the Marshall Circuit Court ("the circuit court") upholding a determination of the City of Arab Historic Preservation Commission ("the AHPC") denying an application by Shoal Creek for a certificate of appropriateness ("COA"). We reverse the judgment.
In 2009, Shoal Creek purchased a building ("the building") in downtown Arab. In January 2014, the City of Arab established the City of Arab Downtown Historic District ("the historic district"),
The AHPC meeting minutes from November 25, 2014, indicate that the AHPC denied the COA application on the ground that the replacement windows "do not meet the approved window guidelines." On November 26, 2014, the AHPC sent a letter to Shoal Creek explaining that the AHPC had denied the application for the COA for the following two reasons:
At trial, Michael Gullion, the chairperson of the AHPC, testified that the AHPC had denied the COA for the two reasons quoted above.
Gullion specifically testified that the windows violated the window-design standards contained on page 21 of the AHPC's "General Design Guidelines," which provide, in pertinent part:
Gullion testified that, in violation of the window-design standards set forth above, the replacement windows installed by Shoal Creek contained vinyl and did not maintain the glazing pattern of the original windows installed in the building.
On January 5, 2015, Shoal Creek filed a notice of appeal to the circuit court.
After a trial, the circuit court entered a final judgment on May 10, 2016, upholding the AHPC's decision to deny the application for a COA and ordering Shoal Creek "to install appropriate windows, as approved by [the AHPC,] and [notifying Shoal Creek] that further changes to the structure shall be in compliance with the City of Arab's Historic Preservation Ordinance." On June 9, 2016, Shoal Creek filed a postjudgment motion, which the circuit court denied on July 15, 2016. On August 26, 2016, Shoal Creek filed its notice of appeal to the supreme court, which deflected the appeal to this court.
On appeal, Shoal Creek argues that the AHPC had no discretion to deny its COA application because, it says, the AHPC's window-design standards do not apply to the building and because, it says, the AHPC exceeded its authority by requiring Shoal Creek to restore the windows to their original, 1930s appearance. We find the first issue to be dispositive, so we do not address the second issue.
City of Arab Ordinance No. 2013-1 ("the 2013 ordinance") and City of Arab Ordinance No. 2014-4 ("the 2014 ordinance") vest the AHPC with the authority to prohibit the modification of the exterior appearance of buildings within the historic district by denying an application for a COA. However, the power to deny an owner of private property the right to modify the appearance of that property must be circumscribed by uniform standards applicable to all citizens. As explained by our supreme court in
374 So. 2d at 308 (quoting
Section 11-68-9(c), Ala. Code 1975, provides that "[t]he [historic preservation] commission shall adopt general design standards which shall apply in considering the granting and denial of certificates of appropriateness." Section 11-68-11(a), Ala. Code 1975, provides, in pertinent part:
(Emphasis added.) The legislature intended that historic preservation commissions should formulate design standards by which the commissions would adjudge whether a proposed change should be permitted to the exterior appearance of a building within a historic district. The design guidelines represent the specific rules and conditions to which owners of buildings within a historic district must comply and control the discretion of a historic preservation commission by establishing certain standards that the commission must follow in denying an application for a COA in order to prevent it from arbitrarily discriminating against citizens based on vague or unspecified criteria.
Section V(I) of the 2013 ordinance complies with § 11-68-9(c) by requiring the AHPC to adopt general design standards that "shall apply in considering the granting and denial of Certificates of Appropriateness." The AHPC complied with the law and the 2013 ordinance by adopting "General Design Guidelines" on April 8, 2014. Article VII, § 2.b.8., containing the window-design standards at issue in this case, provides, in pertinent part:
Michael Gullion, the AHPC chairperson, testified that the AHPC denied the application for a COA filed by Shoal Creek because Shoal Creek had violated the window-design standards by installing vinyl windows with a different glazing pattern than that contained in the original windows installed in the 1930s.
Shoal Creek points out that the window-design standards fall within the "Standards for Rehabilitation and Alteration," which apply solely to "contributing buildings and structures within the district." Shoal Creek argues that the window-design standards do not apply to the building because it is undisputed that the building is classified as a "noncontributing" building. When a historic preservation commission establishes a historic district, it must classify every building within the district as either "contributing," meaning that it "contributes to the district," or "noncontributing," meaning that it "does not contribute to the district." 2013 ordinance, § IV(B)(3). The AHPC classified the building as "noncontributing" because the exterior appearance of the building had been substantially modified from its original 1930s condition. Shoal Creek contends that the AHPC window-design standards did not prohibit it from replacing the windows in the building, a noncontributing building, using the vinyl material and glazing pattern it selected. We agree.
The "Standards for Rehabilitation and Alteration" "shall be applied to all rehabilitation or alteration of
The adjective "contributing" does not modify solely the word "buildings" so that the window-design standards apply to all "structures," whether contributing or noncontributing, as Gullion testified at trial. As explained above, the legislature requires historic preservation commissions to adopt design guidelines to inform citizens within a historic district of the rules and regulations to which they must comply. A historic preservation commission must use plain language that follows the rules of grammar so that citizens can readily determine the meaning of the design standards.
We acknowledge that the authority of the AHPC extends to all buildings within the historic district. Section 11-68-9 expressly provides that no change to "any building" within a historic district can be made unless a COA has been approved by the governing historic preservation commission. That statute, along with the 2014 ordinance, gives the AHPC the authority to review changes to the exterior appearance of noncontributing buildings within the historic district to assure compliance with applicable design standards. Indeed, some of the passages within the AHPC design guidelines generally apply to all buildings within the historic district and other specific design guidelines adopted by the AHPC also may well apply to noncontributing buildings. However, the window-design standards, the only design standards at issue in this case, do not apply to noncontributing buildings, so we decline to address in the abstract the scope of the authority of the AHPC over such buildings.
Article III of the AHPC's design guidelines provides, in pertinent part, that "[t]he Commission shall deny a Certificate of Appropriateness ifit finds that the proposed work is not consistent with the Design Guidelines." The AHPC denied the COA application filed by Shoal Creek because it found that the replacement windows violated the window-design standards. The AHPC did not rely on any other provision in its design guidelines for denying the COA application. We conclude that the AHPC based its denial on a faulty interpretation of the window-design standards. The window-design standards do not provide a rational basis for the determination of the AHPC, which otherwise had no other specific criteria upon which to deny the COA application.
Because Shoal Creek did not violate the window-design standards, the AHPC could not deny its COA application on the alternative ground that the style of the replacement windows conflicted with the general historical character of the building
Based on the reasoning of
In reviewing the actions of the AHPC, the circuit court was limited to determining whether the AHPC had a rational basis for denying the COA application or whether it acted in an arbitrary manner.
APPLICATION OVERRULED; OPINION OF MAY 5, 2017, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED WITH INSTRUCTIONS.
Pittman, Thomas, and Donaldson, JJ., concur.
Thompson, P.J., concurs specially.
THOMPSON, Presiding Judge, concurring specially.
The language set forth in the
I write specially to point out that the language in Article VII, § 2.b., appears to be an aberration. In enacting the law that authorizes municipalities to require a certificate of appropriateness for changes to buildings within an historic district, the Alabama Legislature appears to have contemplated that
Similarly, the City of Arab ("the city") adopted Ordinance No. 2013-1 on January 8, 2013, establishing the AHPC. The purpose of the ordinance is "to establish a uniform procedure for use in providing for the protection, enhancement, perpetuation and use of places, districts, sites, . . . in accordance with the provisions of the Ordinance." § I, Ordinance No. 2013-1. The ordinance provides that a "certificate of appropriateness" is required to make "a change [to a building or structure] that will effect either the exterior architectural or environmental features of an historic property or
I note that Ordinance No. 2013-1 provides that, regarding the recommendation and designation of proposed historic districts and properties, the evaluation of historic districts calls for properties within the district to be classified as either "contributing (contributing to the district)" or "non-contributing (does not contribute to the district)." § IV(B)3, Ordinance No. 2013-1. Section IV also sets forth the criteria the AHPC is to consider when selecting an historic district. I believe that the city intended for the distinction between a contributing building and a noncontributing building to apply only in the initial determination as to whether a proposed historic district met the required criteria to warrant designation as an historic district.
Section V of Ordinance No. 2013-1 provides:
§ V(A), Ordinance No. 2013-1 (emphasis added). The plain language of the ordinance does not create an exception for the need of a COA for "noncontributing" buildings or structures. The guidelines themselves also provide that proposed projects for exterior work on "
Based on the language in the authorizing statute, the applicable city ordinance, and the guidelines themselves, I believe that the intent of the legislature and of the city was to have the guidelines apply to each building or structure within a designated historic district. However, the plain language of the section of the guidelines setting forth the standards for the replacement of windows, among other alterations, explicitly excludes the applicability of those standards from the building at issue in this case. Therefore, I reluctantly agree with the main opinion that the AHPC had no basis on which to enforce the guidelines against Shoal Creek.