Rel: October 16, 2026
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2026-2027
SC-2025-0803
Ex parte City of Fairhope Planning Commission and City of
Fairhope
PETITION FOR WRIT OF MANDAMUS
(In re: 68V BTR Holdings, LLC
v.
City of Fairhope Planning Commission and City of Fairhope)
(Baldwin Circuit Court: CV-24-900981)
PARKER, Justice.
SC-2025-0803
68V BTR Holdings, LLC, wanted to develop two pieces of property
in the City of Fairhope, but Fairhope's Planning Commission denied
68V's project applications. 68V has challenged those denials on various
grounds, some of which are currently pending in the circuit court. For
now, though, only one of those grounds matters -- a claim for money
damages against the City and the Planning Commission premised on the
alleged negligence of the Planning Commission and City employees in
denying the applications.
Below, the City and the Planning Commission sought summary
judgment on this claim based on a combination of three different species
of immunity. But the circuit court denied that request. The City and the
Planning Commission now petition this Court for a writ of mandamus
directing the circuit court to enter judgment for the City and the Planning
Commission on 68V's negligence claim. Because both the City and the
Planning Commission are immune with respect to the negligence claim,
we grant the petition and issue the writ.
I.
The City created the Planning Commission and tasked it with
making decisions concerning the approval of subdivisions in accordance
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with the City's subdivision regulations. Cf. Ala. Code 1975, § 11-52-1 et
seq. The Commission consists of nine members who serve on a volunteer
basis. To assist the planning commissioners in fulfilling their duties, the
City employs planning staff; the Commission has no staff of its own.
68V filed applications with the Planning Commission seeking to
develop two townhome apartment complexes, one named "Skyline
Village" and the other named "Gables on Lawrence." Ultimately, the
Planning Commission denied those applications. According to meeting
minutes, the Planning Commission denied the Gables application
because of "adverse drainage effects," because certain "greenspace"
requirements were not met, because it failed to meet the Planning
Commission's "Comprehensive Plan," and because of "traffic problems."
According to the Commission meeting's minutes, it denied the Skyline
application because of "drainage issues" as well as issues concerning
"traffic," "health, safety and general welfare."
Dissatisfied by the denials, 68V sued the City and the Planning
Commission. 68V did not initially seek mandamus review in state court
to compel compliance with the relevant statutes. Cf. T Invs., LLC v. City
of Montgomery Plan. Comm'n, 393 So. 3d 55, 63 (Ala. 2023). Instead, 68V
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initially sued the City and the Planning Commission in federal district
court. After the federal court resolved all the federal claims against 68V
and declined to exercise supplemental jurisdiction over 68V's state-law
claims, 68V then refiled in state court. There, it sought damages against
the City and the Planning Commission based on their (or their
employees') alleged negligence "in the consideration and/or denial of [the]
applications." 68V's operative state-court complaint also asserted two
other claims -- one for equitable relief invalidating the denials based on
an alleged "arbitrary and capricious" denial of 68V's applications and
another for damages based on an alleged deprivation of 68V's property
"without substantive due process of law" under the Alabama
Constitution.
The City and the Planning Commission answered the amended
complaint and moved for summary judgment on all three of 68V's claims.
With respect to the negligence claim, the City and the Planning
Commission argued that the claim was barred by municipal immunity,
see § 11-47-190, Ala. Code 1975; volunteer immunity, see § 6-5-336(d),
Ala. Code 1975; and substantive immunity. The circuit court denied the
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summary-judgment motion, and this petition followed. This petition
seeks mandamus relief regarding only 68V's claim of negligence.
II.
As always, this Court will grant mandamus relief only when the
petitioner shows (1) a clear legal right to the order sought; (2) the trial
court's refusal to perform some "imperative duty"; (3) the lack of another
adequate remedy (such as an appeal); and (4) that it has properly invoked
the Court's jurisdiction. Ex parte Runnels, 364 So. 3d 979, 982 (Ala. 2022)
(citation modified).
Most of these prerequisites are not in dispute here. The circuit court
issued a written order denying the City and the Planning Commission's
immunity-based request for summary judgment, and this Court has held
that there is no viable alternative remedy for the wrongful denial of such
a request. See Ex parte Butts, 775 So. 2d 173, 176 (Ala. 2000). We also
perceive no jurisdictional problem in reviewing the City and the Planning
Commission's petition. For these reasons, the dispositive question boils
down to whether the City and the Planning Commission have shown a
clear legal right to such an order.
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III.
The City and the Planning Commission have carried this burden.
68V's claims against the City and the Planning Commission rely on a
theory of respondeat superior -- the notion that the City and the Planning
Commission should be held responsible for the on-the-job acts and
omissions of their agents. The converse of this principle is also true: If
the City and Planning Commission's agents are not liable, because of
immunity or otherwise, then the City and the Planning Commission also
cannot be liable based on those agents' actions. See Murey v. City of
Chickasaw, 385 So. 3d 903, 917-18 (Ala. 2023); Hollis v. City of Brighton,
885 So. 2d 135, 141-42 (Ala. 2004). Here, 68V has asserted that the City
and the Planning Commission should be held responsible for the
negligence of two categories of agents: the members of the Planning
Commission, on one hand, and certain city employees, on the other. For
the reasons that follow, both categories of agents are immune from 68V's
negligence claim. The City and the Planning Commission are thus also
immune.
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A.
The members of the Planning Commission are entitled to
"volunteer immunity" under Alabama's Volunteer Service Act, Ala. Code
1975, § 6-5-336. 68V alleged that these commissioners acted "negligently,
neglectfully, carelessly or unskillfully" in considering or denying 68V's
applications. But as the City and the Planning Commission point out,
the Volunteer Service Act provides immunity for municipal volunteers if
they (1) were acting in "good faith" within the scope of their official
"functions and duties" and (2) were not engaged in "willful or wanton
misconduct." § 6-5-336(d). Under Alabama law, "[a]ll members of [a city
planning] commission shall serve without compensation," Ala. Code
1975, § 11-52-3(b), so the commissioners unquestionably qualify as
volunteers for a "governmental entity," § 6-5-336(d). Their consideration
and denial of 68V's applications is likewise "within the scope of [their]
official functions and duties." Id.; see Ala. Code 1975, § 11-52-32(a)
(authorizing municipal planning commissions to "approve or disapprove"
proposed plats). And 68V does not claim that the commissioners were
acting willfully or wantonly. As a result, the planning commissioners are
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immune from any alleged negligence in declining to approve 68V's
applications.
68V attempts to bring the planning commissioners' actions outside
the scope of volunteer immunity by asserting that the commissioners
acted in bad faith. But Alabama's municipal-immunity statute "limits a
municipality's liability for the acts of its agents to those acts that are
negligent, careless, or unskillful." Ex parte City of Tuskegee, 932 So. 2d
895, 910 (Ala. 2005) (applying Ala. Code 1975, § 11-47-190). The upshot,
as this Court has explained, is that the municipal-immunity statute also
immunizes "the acts of [municipal] agents that are carried out in bad
faith …." Id.1
1There does not appear to be any dispute between the parties that
the Planning Commission is entitled to municipal immunity in the same
way that the City is. Indeed, because the Planning Commission was
created by the City and acted as an administrative body of the City, it is
entitled to the protections of municipal immunity. See Hilliard v. City of
Huntsville Elec. Util. Bd., 599 So. 2d 1108, 1110 n.2 (Ala. 1992)
(recognizing that an entity is entitled to municipal immunity if it is
created by a city to serve as " 'a department or administrative arm ' " of
that city (quoting C. Keating and J. Perkowitz-Solheim, McQuillin's Law
of Municipal Corporations § 53.05b (3d ed., 1984 & 1991 Cum. Supp.));
and Mobile City Plan. Comm'n v. Stanely, 775 So. 2d 226, 228 (Ala. Civ.
App. 2000) ("When a planning commission exercises control over
subdivision lands within a municipality it acts in an administrative
capacity.").
8
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68V argues that conduct can be in bad faith while still counting as
negligence, thus sliding between the volunteer-immunity statute and the
municipal-immunity statute. This argument, however, is squarely
foreclosed by our cases holding that the municipal-immunity statute
precludes claims arising out of alleged bad-faith conduct. See, e.g., Rogers
v. Cedar Bluff Volunteer Fire Dep't, [Ms. SC-2025-0055, Aug. 29, 2025]
__ So. 3d __, ___ n.10 (Ala. 2025); see also Ex parte City of Tuskegee, 932
So. 2d at 910. If the planning commissioners acted negligently, then
volunteer immunity prevents this suit. If the planning commissioners
acted in bad faith, then municipal immunity prevents this suit. Either
way, 68V's suit against the City and the Planning Commission for
negligence cannot proceed based on the actions or inactions of the
planning commissioners.
B.
68V also contends that the City and the Planning Commission are
liable for negligence by certain nonvolunteer City employees. Although
these paid City employees are ineligible for volunteer immunity under
the Volunteer Service Act, they are immune for a different reason: the
doctrine of substantive immunity. This doctrine does not foreclose
9
SC-2025-0803
traditional means of compelling governmental compliance with state law,
such as a writ of mandamus. Cf. T Invs., 393 So. 3d at 63. But it does
provide immunity from tort liability for those governmental activities "so
laden with the public interest as to outweigh the incidental duty to
individual citizens." See Ex parte City of Muscle Shoals, 384 So. 3d 37,
41 (Ala. 2023) (citation modified). The idea is that, when government
actors are discharging some generalized duty owed to the public at large,
accountability should come at the ballot box rather than from judges
usurping the roles of elected local officials.
Here, 68V argues that three city employees were all negligent for
various roles they played in providing staff support to the Planning
Commission:
The City Planning Director. According to 68V, the City's
Planning Director relied on improper factors such as the City's
"greenspace" requirements and the Planning Commission's
comprehensive plan to recommend denial of the Gables
application. 68V also argues that the City Planning Director
failed to properly advise the Planning Commission to disregard
comments by a citizen-lawyer at a public hearing suggesting
(erroneously, in 68V's view) that the Commission possessed
discretion to deny the Skyline Village application.
The City Attorney. According to 68V, the City Attorney failed to
instruct the Commission that the comprehensive plan could not
properly be used as a factor in denying the Gables application.
68V complains that the City Attorney, like the City Planning
10
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Director, failed to properly advise the Planning Commission
about the validity of a citizen-lawyer's comments at the Skyline
Village public hearing.
The Mayor. Finally, the Mayor, in receipt of complaints from
6 8V about the application process, assured 68V that, "if it
followed the Department's utility plan, 'there should not be a
problem,' " but "[s]he did 'nothing else' " and did "nothing to
prevent or rectify any of the illegitimate and bad faith conduct
by the Commission members, the [City Planning] Director, and
the City Attorney." 68V's answer p. 36.
But even if these employees acted negligently as described by 68V, their
activity in question is the discharge of a generalized duty to the public,
carrying at most only an incidental duty to any individual citizen.
1.
Ample precedent supports this conclusion. The Court of Civil
Appeals has explained that a governmental body's exercise of zoning
powers is a "public-service activity to be exercised for the benefit of the
governmental entity and for the well-being of the governed." Payne v.
Shelby Cnty. Comm'n, 12 So. 3d 71, 78 (Ala. Civ. App. 2008). As a
necessary corollary, such powers "may not be exercised for the benefit of
individual landowners to the exclusion of the interests and well-being of
all citizens of a county of municipality." Id. Similarly, this Court has
observed that enactment of a zoning plan and enforcement of existing
11
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ordinances regarding zoning are "public-policy decisions made in
connection with the City's responsibility to provide for the public's safety,
health, and general welfare." Ex parte City of Muscle Shoals, 384 So. 3d
at 44. Substantive immunity applies to such decisions. See id.
68V argues that consideration of development applications is a
"ministerial act" and therefore beyond the scope of substantive
immunity. But Alabama statutory law says otherwise, expressly
"deem[ing]" the approval of a proposed plat to be "an amendment of …
the municipal plan and a part thereof." § 11-52-32(b). The power to
amend the municipal plan, like the passage of any zoning ordinance, is a
legislative act. See Ex parte Baldwin Cnty. Plan. & Zoning Comm'n, 68
So. 3d 133, 138 (Ala. 2010) (quoting Ex parte Nathan Rodgers Constr.,
Inc., 1 So. 3d 41, 49 (Ala. 2008)). And again, substantive immunity
applies to local legislative actions in the zoning context, just as it applies
to the enforcement of zoning ordinances. See, e.g., Ex parte City of Muscle
Shoals, 384 So. 3d at 42; Payne, 12 So. 3d at 80.
2.
In resisting this conclusion, 68V mistakenly relies on a nonbinding
opinion in Lee v. Houser, 148 So. 3d 406 (Ala. 2013). In Lee, a three12
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justice plurality of this Court, joined by two members who concurred only
in the result, allowed a tort lawsuit to proceed after municipal employees
actively sought to exercise "extraterritorial jurisdiction" over the
property in question -- before the planning commission even enacted
zoning regulations -- to delay consideration of a citizen's plat application
and prevent development of the property. Id. at 415. On those unique
facts, the plurality opinion reasoned that the municipal employees
"seemingly lacked a public-interest reason" for their actions. Id. at 419.
In the present case, by contrast, the City's nonvolunteer employees
acted (1) through its established Planning Commission, (2) without
delay, (3) without an ulterior motive, and (4) in accordance with the City's
established subdivision regulations. Although 68V asserts that certain
employees improperly considered the Comprehensive Plan in their
recommendation, the Planning Commission referenced other,
independently valid reasons to deny the applications, making that
allegedly invalid reason "irrelevant." Ex parte Baldwin Cnty. Plan. &
Zoning Comm'n, 68 So. 3d at 146 n.4. Lee is thus distinguishable from
this case, even if it were binding. Lee thus does not undermine our
conclusion that the City employees' conduct here amounted to "a public13
SC-2025-0803
service activity" protected under substantive immunity. Payne, 12 So. 3d
at 78.
IV.
Our holding today does not leave municipal planning commissions
free to grant or deny development applications arbitrarily. It does not
address 68V's claims that are still pending in the circuit court. Nor does
it foreclose a remedy via a mandamus petition like the one 68V chose to
forgo previously. Cf. T Invs., 393 So. 3d at 63. Indeed, even today, 68V
and its amici may work through the political process to influence the
Planning Commission or to seek legislative change.
Instead, our holding today is narrow: Under the circumstances
present in this case, the City and the Planning Commission have shown
a clear legal right to immunity from 68V's negligence claim for money
damages. For this reason, we grant the petition and issue a writ of
mandamus directing the circuit court to enter summary judgment in
favor of the City and the Planning Commission on that claim.
PETITION GRANTED; WRIT ISSUED.
Wise, Sellers, and Cook, JJ., concur.
14
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Stewart, C.J., concurs in the result, with opinion, which McCool, J.,
joins.
Shaw and Bryan, JJ., concur in the result.
Mendheim, J., concurs in the result, with opinion.
15
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STEWART, Chief Justice (concurring in the result).
I generally agree with the view expressed by Justice Mendheim,
and, therefore, I concur only in the result.
McCool, J., concurs.
16
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MENDHEIM, Justice (concurring in the result).
In my view, it is unfortunate that the concept of immunity must be
broached at all in this dispute between 68V BTR Holdings, LLC ("68V"),
and the City of Fairhope ("the City") and the City of Fairhope Planning
Commission ("the Planning Commission"). The gravamen of the dispute
is 68V's belief that the Planning Commission arbitrarily and capriciously
denied 68V's development applications for the Skyline and Gables
properties. Relief from such decisions by a planning commission is
overwhelmingly sought by filing a petition for a writ of mandamus in a
circuit court.2
In Boulder Corp. v. Vann, 345 So. 2d 272 (Ala. 1977), the developer
plaintiff filed a declaratory-judgment complaint against the Planning
Commission of the City of Mountain Brook, asking the trial court to
declare that a proposed plat should have been approved. In response, the
defendant members of the planning commission "asserted that
2See, e.g., T Invs., LLC v. City of Montgomery Plan. Comm'n, 393
So. 3d 55 (Ala. 2023); Chandler v. City of Vestavia Hills Plan. & Zoning
Comm'n, 959 So. 2d 1124 (Ala. Civ. App. 2006); Mobile City Plan. Comm'n
v. Stanley, 775 So. 2d 226 (Ala. Civ. App. 2000); Mobile City Plan.
Comm'n v. Southern Region Devs., Inc., 628 So. 2d 739 (Ala. Civ. App.
1993); Sadie v. Tyson, 539 So. 2d 1066 (Ala. Civ. App. 1988); Noojin v.
Mobile City Plan. Comm'n, 480 So. 2d 587, 590 (Ala. Civ. App. 1985).
17
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mandamus was the exclusive remedy, [and so] the plaintiff [developer]
amended its complaint and sought relief by way of mandamus." Id. at
273. On appeal, this Court held that the developer had "shown a clear
legal right to the approval of its plat." Id. at 276. See, e.g., C & G Dev. v.
Planning Comm'n of Homewood, 548 So. 2d 451, 453 (Ala. 1989)
(" '[M]andamus will lie to compel the approval of a subdivision plan where
a council, vested with the authority to approve, gives reasons for its
refusal to approve that are unrelated to the question of conformance of
the plan with applicable ordinances.' " (quoting Smith v. City of Mobile,
374 So. 2d 305, 308 (Ala. 1979))).
The reason relief is sought through a petition for a writ of
mandamus in a circuit court is that
"[a] planning commission's authority to regulate the
subdivision of land is derived from legislative act. Smith v.
City of Mobile, 374 So. 2d 305, 307 (Ala. 1979). ' "In exercising
its function approving or disapproving any particular
subdivision plat, [a planning commission] acts in an
administrative capacity, and is bound by any limitations on
its authority contained in the legislation authorizing it to act,
as well as any restrictions contained in its own regulations." '
Id. (quoting Boulder Corp. v. Vann, 345 So. 2d 272, 274 (Ala.
1977))."
18
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T Invs., LLC v. City of Montgomery Plan. Comm'n, 393 So. 3d 55, 62-63
(Ala. 2023). In other words, a planning commission acts in an
administrative capacity under legislative authority with respect to
regulating the subdivision of land.3 See § 11-52-1 et seq., Ala. Code 1975.
For this reason,
"[j]udicial review of a city planning commission's action
is limited. Noojin v. Mobile City Planning Comm'n, 480 So. 2d
587 (Ala. Civ. App. 1985). ... A planning commission's decision
should not be invalidated 'unless it is clearly arbitrary and
unreasonable, having no substantial relation to the public
health, safety, morals, or general welfare.' Noojin, 480 So. 2d
at 588."
Mobile City Plan. Comm'n v. Stanley, 775 So. 2d 226, 228 (Ala. Civ. App.
2000).
However, instead of availing itself of the relief afforded by a petition
for a writ of mandamus in the circuit court, 68V first decided to
commence an action in the United States District Court for the Southern
District of Alabama for alleged violations of due process. After two years
3This Court also has explained that " ' "[s]ubdivision legislation is
part of planning legislation, as is zoning; they are all predicated on the
police power of the state." ' " Beachcroft Props., LLP v. City of Alabastar, 949 So. 2d 899, 904 (Ala. 2006) (quoting City of Dothan v. Eighty-Four
West, Inc., 822 So. 2d 1227, 1236 (Ala. Civ. App. 2001), quoting in turn
City of Mobile v. Waldon, 429 So. 2d 945, 947 (Ala. 1983)).
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of litigation in federal court that yielded no favorable result for 68V
because the federal district court entered a summary judgment for the
defendants as to all of 68V's federal claims (and declined to assert
supplemental jurisdiction over 68V's state-law claims), 68V commenced
the current action in the Baldwin Circuit Court.
The circuit-court action includes a claim for the alleged denial of
"substantive due process" under the Alabama Constitution even though
a similar claim under the United States Constitution was denied by the
federal district court. The action also includes a claim that looks
suspiciously like a petition for a writ of mandamus, asserting that "[t]he
City and [the Planning] Commission's actions and/or inactions in denying
68V BTR's applications for the Skyline and Gables plats were arbitrary
and capricious, unreasonable, not in accordance with law, and an abuse
of power" and asking the circuit court to "order and declare [that] the
[Planning] Commission's denials of the development plats for the Skyline
and Gables properties are invalid and/or void [and] order and declare the
development plats for those properties are approved."4 The third claim
4In the circuit court, 68V defended its filing of a claim seeking
invalidation of the Planning Commission's denials of 68V's plat
20
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applications by citing Lee v. Houser, 148 So. 3d 406, 423 (Ala. 2013), a
plurality of this Court stated:
"The Town of Magnolia Springs and its planning
commission maintain that the proper remedy was not an
action seeking damages for tortious conduct but a writ of
mandamus directing the planning commission to consider the
application. Mandamus is an extraordinary remedy.
Regardless of whether such a writ was appropriate here, Lee
did nothing wrong by suing in tort. One need not seek an
extraordinary remedy before seeking the ordinary remedy."
But 68V ignored the unique litigation context for the Lee Court's
comments. The relevant plaintiff in Lee with respect to the above-quoted
passage, Deidre Lee, had purchased property that originally was within
the planning jurisdiction of Baldwin County, not the Town of Magnolia
Springs. The Baldwin County Planning Commission tabled Lee's
application for a subdivision plat. Shortly thereafter, jurisdiction over
Lee's property switched to the newly formed planning commission of
Magnolia Springs. The Magnolia Springs Planning Commission placed a
moratorium on subdivisions. Lee then initiated an action against the
Baldwin County Planning Commission by filing a petition for a writ of
mandamus directing Baldwin County to approve her application and to
enjoin Magnolia Springs from exercising jurisdiction over her property.
Subsequently, the trial court allowed Lee "to add two causes of action
against the Town of Magnolia Springs and its planning commission for
negligent and wanton failure to consider or to approve Lee's subdivisionplat application." 148 So. 3d at 413. Those claims against Magnolia
Springs were submitted to a jury, and the jury ruled in Lee's favor,
awarding Lee $735,000. Thus, as the Lee Court observed, initially "Lee
did first seek mandamus relief as to Baldwin County in the Baldwin
Circuit Court." 148 So. 3d at 423 n.3.
21
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alleges that "[t]he City and/or the [Planning] Commission negligently,
neglectfully, carelessly, or unskillfully failed to properly consider or grant
68V BTR's application for the Skyline and Gables projects."
It is with respect to that third claim that the City and the Planning
Commission seek immunity. The main opinion finds that all the
defendants are entitled to immunity through a convoluted combination
of volunteer immunity under § 6-5-336, Ala. Code 1975, municipal
immunity derived from § 11-47-190, Ala. Code 1975, and substantive
immunity that ultimately arises from this Court's decision in Rich v. City
of Mobile, 410 So. 2d 385 (Ala. 1982).
In my view, there is no need to proceed beyond a proper
understanding of § 11-47-190, which is the basis of 68V's negligence
claim. Section 11-47-190 provides, in relevant part:
"No city or town shall be liable for damages for injury
done to or wrong suffered by any person or corporation, unless
such injury or wrong was done or suffered through the
neglect, carelessness or unskillfulness of some agent, officer,
or employee of the municipality engaged in the work therefor
and while acting in the line of his or her duty."
(Emphasis added.)
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That statute clearly has in mind action or inaction by a municipal
employee, not an administrative decision derived from legislative action
under the imprimatur of police powers.5
"For many years that section of the code [§ 11-47-190] was
judicially misinterpreted, for the same section was held by
this court to limit the liability of municipalities to injury
suffered through 'neglect, carelessness or unskillfulness.' To
construe that language to include an action for damages for
errors made in quasi judicial decisions would be to expand the
words beyond their normal meaning. It does not permit an
action to lie against a municipality for malicious prosecution.
Neighbors v. City of Birmingham, 384 So. 2d 113 (Ala. 1980).
Until the legislature chooses to expand the liability of
municipalities to include damages for wrongful decision
making, this court will continue to limit such liability to only
those injuries caused by 'neglect, carelessness or
unskillfulness.' "
Ott v. Everett, 420 So. 2d 258, 260 (Ala. 1982) (emphasis added). See,
e.g., Lee v. Houser, 148 So. 3d 406, 419 (Ala. 2013) (plurality opinion)
("To prevail on a claim of negligence, a party must show that another
party's negligence is more than mere 'wrongful decision making.' Ott v.
Everett, 420 So. 2d 258, 260 (Ala. 1982). Municipal immunity does not
apply when a town's agents act negligently ....").
5The main opinion itself notes that the "power to amend the
municipal plan ... is a legislative act." __ So. 3d at __.
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The fact that § 11-47-190 refers to actions or inactions of municipal
employees or agents and not to judgments of municipal decision-making
bodies is precisely why a petition for the writ of mandamus is the
appropriate remedy for correcting a planning commission's approval or
disapproval of subdivision application. That remedy limits the scope of
review and recognizes the discretion that must be afforded to such bodies.
See, e.g., Russell v. Lee, 282 Ala. 504, 508, 213 So. 2d 236, 239 (1968)
(recognizing the writ of mandamus as "a special remedy" that
"command[s] the performance of an act which the law specially enjoins
as a duty resulting from an office, trust, or station"); Alabama State
Tenure Comm'n v. Mountain Brook Bd. of Educ., 343 So. 2d 522, 524-25
(Ala. 1976) (noting that "[a] fundamental concept of judicial review of
administrative action is that it is a limited review" and that mandamus
is "an extraordinary remedy which, traditionally, will not lie for the
purpose of review, nor to revise or control, the exercise of discretion
reposed in administrative or other governmental bodies").
In short, 68V's allegation that the Planning Commission wrongly
denied its applications for the Skyline and Gables plats is not a
cognizable claim of "neglect, carelessness, or unskillfulness of some
24
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agent, officer, or employee of the municipality" under § 11-47-190.
Moreover, to the extent that 68V accuses some planning commissioners
of acting in bad faith, § 11-47-190 immunizes those actions, as the main
opinion notes. Consequently, I see no need to discuss volunteer immunity
or substantive immunity in this case.
I am particularly leery of the main opinion's willingness to extend
substantive immunity to the City and the Planning Commission. As I
have noted, because I do not believe that a cognizable negligence claim
exists against the Planning Commission under § 11-47-190, I see no need
to discuss whether substantive immunity would apply in this case.
However, even if someone disagrees with my interpretation of § 11-47-190, I believe the application of substantive immunity to the Planning
Commission in this instance sends that doctrine down the wrong path,
and I am not alone in that assessment. Indeed, the main opinion neglects
to mention that the federal district court examined at length whether
substantive immunity should apply in this case and, unlike the main
opinion, found the arguments in favor of its application to be lacking.
Because I find the federal district court's reasoning persuasive, I quote it
at length here.
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" 'A municipality ... is generally chargeable with the
negligence of its employees acting within the line and scope of
their employment.' Rich v. City of Mobile, 410 So. 2d 385, 387
(Ala. 1982). The Rich Court carved out an exception to this
general rule, which it termed 'substantive immunity.' Id. The
doctrine, which is based on public policy considerations,
'prevent[s] the imposition of a legal duty, the breach of which
imposes liability, in those narrow areas of governmental
activities essential to the well-being of the governed, where
the imposition of liability can be reasonably calculated to
materially thwart the City's legitimate efforts to provide such
public services.' Id. '[T]he substantive immunity rule of this
case must be given operative effect only in the context of those
public service activities of governmental entities ... so laden
with the public interest as to outweigh the incidental duty to
individual citizens.' Id. at 387-88. The exception must be given
'the narrowest of constructions,' and its amorphous
parameters must be fleshed out 'on a case by case basis.' Id.
at 387.
"The movants cite no case applying substantive
immunity in the context of the enforcement of subdivision
regulations. Instead, they stress that the regulations were
adopted to promote the public welfare and not to benefit any
individual landowner. Because that fact is presumably true of
any ordinance or regulation enacted by any municipality or
organ thereof, it is inadequate to demonstrate that
subdivision regulations fall within the 'narrow' subset of
governmental activities to which substantive immunity may
attach.
"The movants point to two cases applying substantive
immunity in what they contend is the analogous context of
zoning ordinances. In Payne v. Shelby County Commission,
112 So. 3d 71 (Ala. Civ. App. 2008), the defendant county
planning commission adopted a resolution conditionally
rezoning a certain parcel from residential to office. Id. at 74.
After the property was developed, a neighbor sued the county
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and the planning commission for negligently 'failing to enforce
[the conditions in] the rezoning resolution.' Id. at 76-77. The
Payne Court ruled that substantive immunity applied. Id. at
80-81. The Court in Bordelon v. Baldwin County, [No. 20-0057-C, Oct. 28, 2022] (S.D. Ala. 2022) [(not reported in
Federal Supplement)], relied on Payne without further
analysis in ruling that substantive immunity extended to the
issuance of a stop work order allowed under a zoning
ordinance. Id. ...
"When, as here, the highest state court has not already
decided the issue, a federal court sitting in diversity 'must
predict how the highest court would decide th[e] case.' Molinos
Valle del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1348 (11th
Cir. 2011). 'Decisions of the intermediate appellate courts ...
provide data for this prediction.' Id. When an intermediate
appellate court has decided the issue under consideration, the
federal court generally must follow its guidance, but it may
decline to do so 'if persuasive evidence demonstrates that the
highest court would conclude otherwise.' Id. Because it did not
involve a challenge to a municipality's enforcement of
subdivision regulations outside its corporate limits against a
landowner attempting to subdivide its own property, Payne
did not decide the issue presented here. The Court therefore
is not required to follow Payne absent a persuasive showing
that the Alabama Supreme Court would disagree with it.
Nevertheless, the Court has reason to question whether
Payne accurately reflects the Supreme Court's jurisprudence.
"The Payne Court noted that the defendant planning
commission was created pursuant to state statute to provide
for the public welfare, such that the exercise of zoning powers
is a public service activity exercised for the benefit of the
government and the governed and not for the primary benefit
of individual landowners. 12 So. 3d at 78-79. The Payne Court
leapt directly from this unremarkable proposition to the
conclusion that neither the adoption of the rezoning
resolution nor the enforcement of it supported an actionable
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duty in favor of the adjacent landowner plaintiffs. Id. at 79,
80.
"The Court respectfully suggests that Rich requires a
more nuanced approach. As has been said with respect to the
movants' similar analysis, presumably any municipal
ordinance or regulation is designed to serve the public welfare
and not, in the first instance, the interests of an individual
citizen. Making that the test of substantive immunity would
seemingly transform this 'narrow exception[,]' [Long v.
Jefferson Cnty., 623 So. 2d 1130, 1135 (Ala. 1993),] into the
general rule and do to the general rule of municipal liability
for negligence precisely the 'violence' that Rich forbids. 410
So. 2d at 387.
"Substantive immunity applies only to that 'narrow'
subset of governmental activities that: (1) are 'essential to the
well-being of the governed'; and (2) as to which 'the imposition
of liability can be reasonably calculated to materially thwart
the City's legitimate efforts to provide such public services.'
Rich, 410 So. 2d at 387. It is only when these conditions are
met that the activity under attack may be said to be 'so laden
with the public interest as to outweigh the incidental duty to
individual citizens.' Id. at 387-88. The Payne Court quoted
these portions of Rich, 12 So. 3d at 78, but it made no
discernible ruling as to either of the enumerated essential
requirements for substantive immunity.
"The Payne Court relied on Hilliard v. City of
Huntsville, 585 So. 2d 889 (Ala. 1991), for the proposition
that, while individual citizens may benefit from a
governmental activity, such individual benefit ' "is merely
incidental to the benefit derived by the citizens in general." '
12 So. 3d at 79 (quoting Hilliard, 585 So. 2d at 891). That
proposition may satisfy the 'incidental duty' portion of Rich,
but to satisfy the 'so laden' requirement, it must be further
shown that the governmental activity at issue is essential to
the well-being of the governed and that imposing tort liability
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will predictably thwart the municipality's provision of such
services.
"The Hilliard Court, unlike Payne, made these
necessary determinations. The Alabama Supreme Court
concluded that electrical inspections to ensure that the
building code is satisfied 'are essential to the well-being of the
governed.' 585 So. 2d at 892. The Court then concluded that,
because cities are not compelled by law to perform such
inspections, recognizing a tort duty in this area would 'ten[d]
to increase the probability that the imposition of tort liability
in this area would serve only to destroy the municipality's
motivation or financial ability to support this important
service.' Id.
"The movants have provided no guidance as to how to
determine what constitutes an 'essential' governmental
activity, and the Court declines to assume on their behalf that
a municipality's regulation of the development of
subdivisions, especially outside its corporate limits, falls
within that category. Nor have the movants attempted to
show that allowing a negligence claim against municipalities
and their planning commissions for negligent enforcement of
such regulations can reasonably be expected to 'materially
thwart' their efforts to provide such services.
"The only case cited by either side that involves
subdivision regulations is Lee v. Houser, 148 So. 3d 406 (Ala.
2013), on which the plaintiff heavily relies. In Lee, the lead
plaintiff owned property in an unincorporated area of Baldwin
County ('the County'). When the newly incorporated Town of
Magnolia Springs ('the Town') learned that the plaintiff had
submitted to the county planning commission an application
for preliminary subdivision plat approval, it informed the
County of its intention to extend its planning jurisdiction to
include the plaintiff's property, prompting the County to table
the plaintiff's application. The Town established a planning
commission which, at its first meeting, adopted a moratorium
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on subdivisions, at a time it had no rules or regulations in
place with which to regulate subdivisions. The plaintiff
submitted an application to the Town, which it never ruled
on. After several months, while the moratorium was still
pending, the plaintiff filed suit. As ultimately amended, the
complaint included a claim against the Town and its planning
commission for 'negligent ... failure to consider or to approve
[the plaintiff's] subdivision-plat application.' The claim
proceeded to trial and resulted in a verdict for the plaintiffs.
148 So. 3d at 411-13.
"On appeal, the defendants argued they were protected
by substantive immunity. The Alabama Supreme Court
acknowledged the Rich requirements for invoking the
doctrine but focused on the defendants' tactics and motive.
The Court noted that the Town 'seemingly lacked a publicinterest reason for delaying the consideration of the plaintiff's
plat application and for thereby thwarting the development of
her private property.' Substantive immunity, the Court said,
'cannot extend to protect a municipality for the actions of its
agents who sought extraterritorial jurisdiction over the
private property of a citizen so that the municipality could
prevent development of that property.' Because the jury 'could
infer that the activities of [the defendants] were neither
legitimate nor aimed at the public welfare but were meant to
prevent a private citizen from developing her private property
for her economic benefit as well as for the economic and social
benefit of the community,' substantive immunity was
unavailable. 148 So. 3d at 419-20.
"While the exact parameters of Lee may be uncertain, it
appears to stand for the general proposition that a municipal
defendant may not invoke successfully substantive immunity
when, although it acted within a legitimate sphere of
governmental activity, it did not do so by neutrally following,
or attempting to follow, the applicable rules and accepting the
outcome they dictated but instead bent or ignored the rules in
order to achieve its desired result in a particular case. The
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plaintiff argues that Lee compels the denial of the movants'
motion to dismiss Count III. The movants offer several
reasons to avoid this result, but none of them hit the mark.
"First, the movants discount Lee as a mere 'plurality
opinion.' Lee was decided, pursuant to Alabama Rule of
Appellate Procedure 16, by a panel of five Justices, out of nine
on the Alabama Supreme Court. All five concurred in the
result, but only three joined the opinion. 148 So. 3d at 425.
This may prevent the opinion from being binding precedent,
but the movants have not explained how it prevents the
opinion from being indicative of how the Supreme Court
would rule.
"Second, the movants argue that Lee must be limited to
its peculiar facts, which included (unlike in this case) an
abrupt assertion of planning jurisdiction beyond the Town's
corporate limits and a failure to consider an application at all
(rather than a failure to consider it fairly). That is not how
judicial reasoning works. A precedent extends beyond its
precise facts unless there is reason to conclude that the court's
ruling was dependent on those precise facts. The movants
offer no such reason, and the Court discerns none. The Lee
Court expressed its reasoning three times, in the three
passages quoted above, and in none of them did the Court
restrict its ruling to the precise facts of the case. On the
contrary, Lee emphasized that the defendants acted not in the
public interest but for the purpose of preventing an individual
landowner from developing her property. That is a principle
extending beyond the precise methodology employed by a
municipal defendant in pursuit of its illegitimate object.
Given the breadth of its statements, and its failure to include
a 'peculiar facts qualifier, the Court cannot conclude that Lee
is limited to its precise factual scenario.
"Third, the movants argue that the amended complaint
contains insufficient allegations to implicate Lee. The
movants acknowledge that the amended complaint alleges
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that the denials of the plaintiff's applications 'were neither
legitimate nor aimed at the public welfare,' but they dismiss
these allegations as mere legal conclusions. The movants
assert that the amended complaint fails to allege that they
acted 'for the purpose of restricting [the plaintiff's]
development' and that it alleges only that they 'reached the
wrong result.' The movants greatly understate the relevant
allegations.
"The amended complaint expressly alleges that
members of the Commission admitted on tape that there was
no legitimate reason to deny the applications but that it could
be done anyway, 'because they did not want Plaintiff's multioccupancy complexes built.' The amended complaint alleges
that another Commissioner admitted that the Commission
denied the applications for pretextual reasons, and that the
real reason for denial was that the Commission did not want
lower-rent complexes like the ones the applications
envisioned. The amended complaint further alleges that this
Commissioner predicted the plaintiff's principal would not
bring suit to challenge the denials because the Commission
could retaliate by denying future applications from the
principal's businesses concerning other projects. Opposition to
lower-rent complexes and the clientele they would attract led
the Commission to engage in a coordinated effort to deny the
applications (including by adding vague, inconsistent, and
unprecedented demands) 'without regard to legitimacy.' All of
these allegations are incorporated in Count III.
"It is difficult to imagine that these statements fail to
allege 'that the activities of [the defendants] were neither
legitimate nor aimed at the public welfare but were meant to
prevent a private citizen from developing [its] private
property for [its] economic benefit as well as for the economic
and social benefit of the community.' Lee, 148 So. 3d at 419.
The cited excerpts -- which the movants ignore -- appear
patently to allege that the defendants acted for the purpose of
restricting the plaintiff's development and that they
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manipulated and violated the rules to achieve their desired
result rather than that they merely reached the wrong result.
The movants' failure to address these allegations obviates
further consideration of their argument.
"As with defendants generally, 'before liability for
negligence can be imposed upon a governmental entity, there
must first be a breach of a legal duty owed by that entity.'
Hilliard, 585 So. 2d at 890. The duty alleged by the plaintiff
in Count III is a duty 'to consider its application fairly.' The
movants argue that there is no such duty under Alabama law,
either at all or of such force as to withstand substantive
immunity.
"The movants identify no Alabama authority rejecting
the existence of a duty to consider a subdivision application
fairly. Instead, they argue only that Lee did not affirmatively
recognize such a duty, on the grounds that Lee involved a
failure to consider an application at all. For reasons discussed
above, it would seem difficult to distinguish an unfair nonconsideration from an unfair consideration, but in any event
the movants misapprehend their burden on motion to dismiss.
Their task is not merely to show that a particular case did not
recognize such a duty but to show either that Alabama has
affirmatively rejected such a duty or that this Court, using a
proper Erie[ R.R. v. Tompkins, 304 U.S. 64 (1938),] analysis,
should predict that the Alabama Supreme Court would reject
such a duty were the question presented. Having attempted
neither, the movants cannot sustain their burden.
"The movants insist that 'any duty owed regarding
administration and enforcement of the Subdivision
Regulations is owed to the public[,] not specifically to [the
plaintiff] or any other applicant' and that only a duty
'uniquely owed' to the plaintiff can survive substantive
immunity. Thus, even if there is a duty to fairly consider
subdivision applications, it is owed to the public at large and
either not at all to the plaintiff or not 'uniquely' to the
33
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plaintiff. In either event, because the duty to the plaintiff is
at best 'incidental,' substantive immunity bars any claim
based on a breach of the duty. However, to the extent that Lee
supports a duty to fairly consider a subdivision application, it
also supports a denial of substantive immunity based on a
breach of that duty, since it held that substantive immunity
did not apply where the jury could find a breach of duty."
68V BTR Holdings, LLC v. City of Fairhope, Civil Action No. 22-0430-WS-B, Oct. 5, 2023 (S.D. Ala. 2023) (not reported in Federal Supplement)
(footnotes and record citations omitted; emphasis added).
I grant that the federal district court reached its conclusion within
the confines of a motion to dismiss rather than a motion for a summary
judgment and that, therefore, its view of the facts could differ from our
assessment. But the main opinion's discussion of the facts is so lacking
that I find that difference to be no impediment to agreeing with the
central observations made by the federal district court. Application of the
substantive-immunity doctrine deserves more caution and scrutiny than
the main opinion provides, and, therefore, I cannot agree with its
conclusion on that front.
34