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Alabama Supreme Court hears dispute over mailed notice for Birmingham subdivision plat
Summary
At oral argument, justices questioned whether the City of Birmingham Planning Commission’s approval of a 2020 subdivision plat must be invalidated because adjoining owner 790 Montclair LLC did not receive mailed notice; counsel split over whether precedent requires strict mailed notice and whether any concrete injury occurred.
The Supreme Court of Alabama on Tuesday heard argument over whether the City of Birmingham Planning Commission’s approval of a subdivision plat in November 2020 must be invalidated because an adjoining landowner, 790 Montclair LLC, was not mailed notice of the hearing.
The question matters because, counsel for the appellant argued, state precedent requires strict compliance with mandatory notice provisions and the failure to mail notice to adjoining landowners renders the planning commission’s action invalid regardless of whether the landowner showed prejudice. Appellees countered that subdivision regulations differ from zoning rules honored in precedent and that the record does not show a cognizable injury that would warrant undoing an approved and recorded plat.
Diane Maughn, counsel for appellant Montclair LLC, told the court: "Following this court's precedent, the answer to that question is undeniably yes, and the approval of the subdivision plat is due to be invalidated." Maughn said Jefferson County tax-assessor records show 790 Montclair’s name and address and argued the proper remedy is to invalidate the approval and remand the matter to the planning commission so adjoining owners can be given notice and a new hearing.
Harris Haygood, counsel for appellee Birmingham Metro LLC, responded that Kennon v. Gentry — a case the appellant invoked — addressed zoning ordinances and should not be expanded to require the same remedy for subdivision approvals. "I do have a theory about how all this happened, and I do not believe that Kennon should be expanded into the subdivision regulation realm," Haygood said, arguing the applicable statute and the city’s subdivision regulations should control and that the record does not show a present injury.
The justices pressed both sides on factual and legal points. Justice Cook asked whether, had 790 Montclair received mailed notice, it would have opposed the plat; the appellant’s counsel said yes and emphasized the landowner’s right to due process and an opportunity to be heard. The court also questioned how county records appeared at the time of the application: counsel for the appellees pointed to screenshots of the Jefferson County GIS parcel lookup that at one time showed a blank owner field for the parcel, while appellant counsel said the tax assessor’s records attached to the trial-court filings did show the owner and mailing address.
The parties disputed what constituted adequate inquiry for mailed notice. Appellees described Scholl Engineering’s standard operating procedure of checking multiple sources for adjacent-owner information and argued that the city mailed notices as required by the statute. Appellant counsel emphasized Alabama Code § 11-52-32 (as quoted during argument) and cited the court’s decision in Kennon and an Alabama Attorney General opinion applying that decision to subdivision plats.
Appellees urged the court to affirm the trial court’s grant of summary judgment, which concluded there was no legally cognizable injury to 790 Montclair and therefore no redressable controversy. Appellees also argued that any reliance interests in the interim — purchasers or developers acting in reliance on the recorded plat — are protected under precedent such as Thomas v. Cowan, and that recorded conveyances to innocent purchasers would not be invalidated even if a plat were later declared invalid.
During argument the parties and several justices discussed remedies if the court were to find a procedural defect: the most commonly described remedy was to invalidate the planning commission’s approval and remand the matter so that notice could be mailed and a new hearing held. Appellant counsel said that at a new hearing adjoining owners could raise objections regarding omitted reciprocal easement agreements and restrictive-covenant language on the plat that the appellant contends conflict with preexisting easements.
No decision was announced at the hearing. The court’s eventual ruling will determine whether the failure to mail notice, as alleged by 790 Montclair LLC, requires invalidation of the plat and a remand to the planning commission, or whether the trial court’s finding of no justiciable injury should be upheld.
