Alabama Supreme Court considers whether missed mailed notice invalidates Birmingham subdivision plat

The Supreme Court of Alabama on the record considered an appeal by 790 Montclair LLC seeking to invalidate a City of Birmingham planning commission subdivision plat approved in November 2020 on the ground that the commission failed to mail statutorily required notice to 790 Montclair as an adjoining landowner.

Diane Maughn, counsel for the appellant 790 Montclair LLC, told the court that under this court’s precedent the approval must be invalidated for failure to provide the required mailed notice. “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.

The dispute centers on whether the statutory and local regulatory notice requirements require strict compliance even if the adjoining owner suffered no demonstrable prejudice, and on what remedy follows. Maughn argued the court’s decision in Kennon and Associates v. Gentry requires invalidation where procedural notice provisions were not followed and that an Attorney General opinion reaching the same conclusion supports remanding the matter to the planning commission for a new hearing with proper notice.

Harris Haygood, counsel for appellee Birmingham Metro LLC, countered that Kennon addressed zoning ordinances and should not be extended to local subdivision regulations. Haygood also told the court that the statute's text and available county records meant the parties provided the notice called for and that the trial court properly concluded 790 Montclair suffered no legally cognizable injury. “In this case, there has been no prejudice. There no property rights have been revoked, removed, altered, amended, and there's been no damage to 790 Montclair,” Haygood said.

The lawyers agreed on the basic chronology in the record: 790 Montclair purchased the parcel in December 2018; Birmingham Metro purchased adjacent property in spring 2020 and submitted a subdivision application in October 2020; the planning commission held a hearing and approved the plat on Nov. 14, 2020; site preparation work for the approved development began in late 2022; an injunctive complaint was filed in August 2022.

A key factual dispute described at argument involved what ownership information was available to the applicant and the planning commission in 2020. Counsel for 790 Montclair relied on tax-assessor records showing the owner’s name and address in the Jefferson County tax assessor files, and argued that these records were sufficient to require mailed notice. Counsel for Birmingham Metro said the county GIS parcel lookup that was used at the time displayed a blank owner field for the parcel and that there is no record evidence establishing why the name was not part of the materials submitted with the subdivision application.

Justices pressed both sides on remedial questions. If the court were to invalidate the 2020 plat and remand, what would happen to transactions and site activity that relied on the recorded plat? Appellant counsel noted existing Alabama precedents allow a court to note a plat’s invalidity and that a subsequently approved plat could supersede an earlier recording; appellee counsel pointed to the practical consequences for innocent purchasers and site work completed in reliance on the recorded plat.

The court also discussed whether local subdivision regulations that require notice based on tax-assessor records impose a different obligation than the statute the justices read literally (Alabama Code section 11-52-32), and whether substantial compliance in practice can substitute for strict statutory compliance. Appellant counsel emphasized this court’s line of cases holding that failure to comply with mandatory mailed-notice provisions invalidates the municipal action irrespective of prejudice; appellee counsel urged a narrower reading tied to the statutory language and to finality and reliance interests.

No ruling was announced at the hearing. The court concluded oral argument and took the matter under advisement.