Posted by: Patricia Salkin | June 30, 2012

Alabama Appeals Court Holds Board of Adjustment Had Authority to Grant Extension of Time for Permit Where Delay was Caused by Litigation and that Increase in Height to Nonconforming Structure to Comply with FEMA Requirement was Permissible

Scott and Jacqui Callahan sought to rehab a pool house on their Mobile, Alabama property damaged during Hurricane Katrina in August 2005.  The pool house was located on a neighboring parcel owned by M.C. Canton Company under an easement, and did not conform to a City zoning ordinance regarding setbacks.  When the Callahans applied for a building permit to restore the pool house, Canton argued the easement had been extinguished and filed suit.  The City agreed to hold permitting negotiations in abeyance until the lawsuit had concluded. 

In October 2008, a circuit court held that the easement had not been extinguished and found in favor of the Callahans, noting that the couple had undertaken to complete the permitting process to fix the pool house within 120 days of the Hurricane.  The Callahans were instructed to proceed with the work in a reasonable amount of time, staying within the pool house’s original footprint, but told the time for completion would be extended if there was further litigation on the matter.  Canton appealed, requesting to transfer the case to state court.  The Alabama Supreme Court affirmed, and Canton petitioned for certiorari to the Court of Civil Appeals.  The petition was denied and the suit concluded.                   

The Callahans then renewed their permit application to restore the pool house and increase its height to comply with new Federal Emergency Management Agency regulations.  In March 2010, the City issued the permit and Canton appealed.  A hearing was held, at which Canton argued that the Callahans had failed to comply with a law which requires that those looking to restore nonconforming structures apply for a building permit within one year of the damage and complete construction within two years.  While the option to extend these deadlines was available, Canton argued the Callahans had failed to do so, and thus that they had abandoned the pool house and the City’s issuance of the building permit for its restoration was in error.  The Board decided in favor of the Callahans, and Canton appealed.  Canton’s motion for summary judgment on appeal was denied, and he here appeals that decision. 

Both the lower court and the Court of Civil Appeals found that the delays in the permitting and construction of the pool house were attributable to the actions of Canton in litigating the issue on multiple occasions, rather than any failure to act on the part of the Callahans.  While Canton argued that the Board’s decision to issue the permit was arbitrary, the lower court found and the appellate court upheld the finding that the Board’s decision was based on a sufficient evidentiary record that supported both the decision to issue the permit and the decision to extend the timelines for issuance of the permit, because of Canton’s extensive efforts to block the permit through litigation.  

The court held that the pool house could not be brought back to existence or use without complying with FEMA regulations, thus a restoration of the pool house required extending the height of the building.  Changing the height of the building would not change or increase the building’s noncompliance with city setback requirements, since the footprint of the structure would not change.  Thus, allowing the Callahans to increase the height of the pool house would not increase the structure’s nonconformity, so it was permissible. 

M.B. Canton Co. v. Board of Adjustment of the City of Mobile, 81 So.3d 1284 (Ala. Ct. Civ. Appls. 09/30/12) 

The opinion can be accessed at:

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