City of Huntsville Motion To Dismiss

DOCUMENT 11
ELECTRONICALLY FILED
10/11/2022 5:06 PM
47-CV-2022-900946.00
CIRCUIT COURT OF
MADISON COUNTY, ALABAMA
DEBRA KIZER, CLERK
IN THE CIRCUIT COURT FOR MADISON COUNTY, ALABAMA
KENNETH WELCH, SHERI WELCH, )

KELLY WELLS, BERTRAM MORRIS, )
KATHERINE MORRIS, NEIL ) CASE NO.: 47-CV-2022-900946.00
CZAJOWSKI and AVA CZAJOWSKI, )
)
Plaintiff, )
)
v. )
)
THE CITY OF HUNTSVILLE, a )
Municipal Corporation and SEE )
FOREVER DEVELOPMENT )
PARTNERS LLC )
)
Defendants. )
MOTION TO DISMISS OF
DEFENDANT CITY OF HUNTSVILLE, ALABAMA
Defendant City of Huntsville, Alabama (“City”), hereby moves the Court to dismiss it as a
defendant in this action. Plaintiffs’ complaint fails to state any claims whatsoever against the City,
and certainly fails to state any claims upon which relief may be granted. In support of this motion,
the City states as follows:
1. This is a highly unusual and irregular case in which plaintiffs contend that the City’s
act of passing an ordinance re-zoning certain property somehow violated other city ordinances
setting out the previous zoning restrictions that used to govern that very same property. However,
Alabama law grants municipalities plenary zoning authority, including the authority to amend
zoning ordinances as they see fit. Ala. Code §§ 11-52-70, 11-52-78. Instead of challenging the
City’s right to amend its zoning ordinances, plaintiffs instead seek “to require the City of
Huntsville to enforce its [previous] ordinances” against the owners of the property that the City
rezoned. (Complaint, Doc. 2, at 2). Plaintiffs also seek a court order declaring Ordinance 22-235
“void and invalid.” (Complaint, Doc. 2, at 7).

DOCUMENT 11
2. At the outset, the complaint itself fails to state any claims upon which relief may
be granted. Ala. R. Civ. P. 12(b)(6). More than that, the complaint actually fails to assert any claims
whatsoever, falling short of even the most basic level of notice pleading. See Ex parte Burr &
Forman, LLP, 5 So. 3d 557, 566 (Ala. 2008); Metcalf v. Pentagon Fed. Credit Union, 155 So. 3d
256, 260 (Ala. Civ. App. 2014). The lack of any claims is compounded by the complaint’s violation
of Ala. R. Civ. P. 8 and 10, as it confusingly contains no paragraph numbers, no page numbers,
and no separate counts.
3. Beyond these pleading defects which fail to provide notice of any claims against
which the City must defend, plaintiffs impermissibly ask the Court to compel the City to enforce
its ordinances, including ordinances that have been modified or superseded. Yet plaintiffs lack
standing for such a request, as the Alabama Supreme Court has made clear that an individual’s
mere belief or opinion that a law should or should not be enforced is insufficient on its own to
impart standing to challenge that law or require its enforcement. Munza v. Ivey, 334 So. 3d 211,
218 (Ala. 2021).
4. Moreover, Alabama courts have repeatedly held that private citizens do not have
the right to sue municipalities for the “failure to enforce local ordinances.” Payne v. Shelby Cnty.
Comm’n, 12 So. 3d 71, 80 (Ala. Civ. App. 2008). See also Nichols v. Town of Mount Vernon, 504
So. 2d 732, 733 (Ala. 1987) (holding city could not be sued for failure to enforce requirement that cars
not park on side of a particular roadway); Hillard v. City of Huntsville, 585 So. 2d 889, 891-92
(1991) (no right of action arising from failure to enforce electrical inspection ordinance); Davis v.
City Council of Montgomery, 51 Ala. 139, 149 (Ala. 1874) (holding municipality may not be sued
for failure to enforce ordinance in which it was granted authority to abate nuisance). This principle
is particularly true where, as here and in Payne, a city is exercising its zoning powers, which is a
2
DOCUMENT 11
“public-service activity to be exercised for the benefit of the governmental entity and for the well-
being of the governed.” Id. at 78. See also Bill Salter Advert., Inc. v. City of Atmore, 79 So. 3d
646, 651-53 (Ala. Civ. App. 2010) (finding city’s enforcement of ordinances as a “public service
activit[y] . . . so laden with the public interest” that it could not be compelled by private citizens
seeking to compel city to act in their particular favor).
5. Further, plaintiffs lack standing to seek declaratory relief as to Ordinance 22-235.
The Alabama Supreme Court has repeatedly held that a plaintiff who has never been subjected to
injury in fact pursuant to the provisions of a law, but simply believes the law invalid, does not have
standing to mount a challenge to that law. Munza, 334 So. 3d at 218; Surles v. City of Ashville,
68 So. 3d 89, 93 (Ala. 2011); Muhammad v. Ford, 986 So. 2d 1158, 1165 (Ala. 2007). Plaintiffs
do not allege that they own any of the property that was rezoned, nor do they identify any present
violation or deprivation of any legally recognized right (as opposed to speculative allegations about
possible injury in the future). See Ex parte Alabama Rivers Alliance, 165 So. 3d 597, 603 (Ala.
2014).
6. Plaintiff have not pleaded the existence of a bona fide justiciable controversy that
may properly be the subject of a declaratory judgment. See Surles, 68 So. 3d at 93; Ex parte
Marshall, 323 So. 3d 1188, 1199 (Ala. 2020). They have alleged nothing more than an anticipated
injury that might occur in the future, which is insufficient to give rise to a valid request for
declaratory relief. Birmingham Bd. of Educ. v. Boyd, 877 So. 2d 592, 594 (Ala. 2003) (holding
that “a justiciable controversy requires the parties to seek remedies from having sustained damage
as opposed to seeking advice from the Court.”).
WHEREFORE, for the reasons stated above and in its supporting brief, the City requests
the Court enter an order dismissing the City from plaintiffs’ complaint.
3
DOCUMENT 11
s/ David J. Canupp
David J. Canupp
s/ Allison B. Chandler
Allison B. Chandler
LANIER FORD SHAVER & PAYNE, P.C.

P. O. Box 2087
2101 West Clinton Avenue, Suite 102 (35805)
Huntsville, AL 35804
Phone: 256-535-1100 / Fax: 256-533-9322
E-mail: [email protected] & [email protected]
Attorneys for Defendant City of Huntsville, Alabama
4
DOCUMENT 11
CERTIFICATE OF SERVICE
I certify that on this 11th day of October, 2022 I have filed the foregoing with the Clerk of
the Court using the ECF System, which will send notification of such filing to those parties of
record who are registered for electronic filing, and further certify that those parties of record who
are not registered for electronic filing have been served by mail by depositing a copy of the same
in the United States mail, first class postage prepaid and properly addressed to them as follows:
Robert V. Rodgers
Ables, Baxter & Parker, P.C.
2049 Commerce Court, Ste. A
P.O. Box 165
Huntsville, AL 35804-0165
Phone: 256-533-3740
Fax: 256-533-0554
E-Mail: [email protected]
s/ David J. Canupp
David J. Canupp

City of Huntsville Motion To Dismiss

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DOCUMENT 11

KENNETH WELCH, SHERI WELCH, )

the City states as follows:

“void and invalid.” (Complaint, Doc. 2, at 7).

and no separate counts.

218 (Ala. 2021).

seeking to compel city to act in their particular favor).

5. Further, plaintiffs lack standing to seek declaratory relief as to Ordinance 22-235.

as opposed to seeking advice from the Court.”).

LANIER FORD SHAVER & PAYNE, P.C.

Attorneys for Defendant City of Huntsville, Alabama

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