DOCUMENT 367

ELECTRONICALLY FILED
6/7/2021 9:27 PM
31-CV-2020-900726.00
CIRCUIT COURT OF
ETOWAH COUNTY, ALABAMA
CASSANDRA JOHNSON, CLERK
IN THE CIRCUIT COURT OF ETOWAH COUNTY, ALABAMA

DYNAMIC COLLISION, LLC, )

ZLA SOLUTIONS, INC., )
BUTLER PROPERTIES, LLC, )
GREER CLARK ET AL, )
Plaintiffs, )
)
V. ) Case No.: CV-2020-900726.00
)
GADSDEN AIRPORT AUTHORITY, )
CITY OF GADSDEN, ALABAMA, )
Defendants. )

ORDER GRANTING PLAINTIFFS’ APPLICATION FOR PRELIMINARY

INJUNCTION AGAINST THE CITY OF GADSDEN

This case came before the Court for hearing held on May 24, 2021, and May 27, 2021, on the
Plaintiffs’ application for a Preliminary Injunction against the City of Gadsden [“the City”] and
the Gadsden Airport Authority [“the GAA”]. The Plaintiffs include the original Plaintiff,
Dynamic Collision, LLC, and some twenty-four (24) additional parties added as Plaintiffs upon
motions to intervene previously granted by the Court. Present on behalf of Plaintiff Dynamic
Collision, LLC, and certain of the Plaintiff Intervenors were their Attorneys, Christie D.
Knowles and Joshua B. Sullivan. Present on behalf of the remaining Plaintiff Intervenors was
their Attorney, Phillip W. Williams, Jr. Present on behalf of the City were their Attorneys,
Bradley W. Cornett and Jack Lee Roberts, Jr. Present on behalf of the GAA were their
Attorneys, C. David Stubbs and Lisa Marie Ivey.

The Court has carefully reviewed the thorough post-hearing citations of legal authority and/or
briefs filed on behalf of all the parties with respect to the propriety of granting preliminary
injunctive relief in this case. Upon due consideration of testimony heard ore tenus, exhibits
admitted into evidence, oral arguments of counsel, and the said citations and briefs, it is
FOUND, HELD, ORDERED, ADJUDGED and DECREED as follows:

1. The Plaintiffs’ First Amended Complaint for Declaratory Judgment and Permanent
Injunction invokes the Court’s jurisdiction under Section 6-6-220, et seq., Alabama Code
(1975), as amended, which provides as follows: “Any person . . . whose rights . . . are
affected by a . . . municipal ordinance . . . may have determined any question of
construction or validity. . . arising under the . . . ordinance, . . . and obtain a declaration
of rights . . . thereunder.”
The Plaintiffs allege that the City is party to a Memorandum of Understanding or other
agreement issued to a third party which has been identified as Pilgrim’s Pride
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Corporation [“Pilgrim’s Pride”], offering to provide ad valorem and sales tax abatements
and other incentives for the construction and operation of a rendering plant to be located
at property presently owned by GAA and located at 3900 Steele Station Road, in
Gadsden, Alabama [“the subject property”]. The property is alleged to be located
adjacent or in close proximity to the Plaintiffs’ properties.

2. It is undisputed that the subject property currently is zoned by the City as an “I-1, Light
Industry District.” The City’s Zoning Ordinance (Sections 130-1 through 130-501 of the
Code of Ordinances of the City of Gadsden)(“the Zoning Ordinance”) defines an I-1
district as follows:
Purpose. The I-1 districts are composed of land and structures occupied by or
suitable for light manufacturing, wholesaling and similar uses. [emphasis added].
Located for convenient access for existing and future arterial thoroughfares,
highways and railway lines, these districts are usually separated from residential
areas by business districts or by natural barriers. The district regulations are
designed to permit a range of light industrial activities subject to limitations
intended to protect nearby residential and business districts.

Gadsden Code Section 130-271(a).

3. The Plaintiffs contend that the operation of a rendering plant does not fall within an I-1
district, Light Industry use. That argue that instead, because of the nature of its
operations, such a plant is more properly zoned as I-2, Heavy Industry District, which is
defined by the Zoning Ordinance as follows:
Purpose. The I-2 districts are composed of land and structures occupied by or
suitable for heavy manufacturing and related activities. [emphasis added].
Located for convenient access from existing and future arterial thoroughfares,
highways, railway lines or waterways, these districts are usually separated from
residential areas by business or light industry areas or by natural barriers; where
they are adjacent to residential areas, some type of artificial separation may be
required. The district regulations are designed to permit the development of the
districts for their purpose, including almost any industrial uses but subject to
conditions necessary for the mutual protection of the uses and city generally.

Gadsden Code Section 130-272(a).

4. Section 130-312(a) of the Zoning Ordinance prescribes the uses permitted in each of the
types of zoning districts. It also states that for any use not listed, the building official
shall make a determination of the districts in which such use shall be permitted as a use
by right, a use requiring planning approval or a special exception use on the basis of its
similarity in nature and character to uses that are listed.

Section 130-312(c) of the Zoning Ordinance provides that all uses not listed are
prohibited.
 DOCUMENT 367

While a poultry plant is a permitted use in an I-1 district, the condition of its being
permitted in such a zone is that the operation be one of “live” storage and/or dressing.
By contrast, poultry at a rendering plant are not live poultry. Operation of a rendering
plant is not a listed use in any district under the Zoning Ordinance.

5. The Plaintiffs allege that by an email dated December 16, 2020, Lee Roberts, City
Attorney, advised Christie Knowles, Plaintiffs’ counsel, that “Per our zoning dept, the
property would not have to be rezoned.” By an email dated December 17, 2020, the City
Attorney advised that “ . . . consensus among Planning and Building Depts is that I-1 is
proper so long as rendering is limited to poultry. I-1 permitted uses include poultry
dressing where chickens are slaughtered and eviscerated.” As discussed more particularly
below, however, the City maintains that this statement did not constitute an actual zoning
determination.

6. The Plaintiffs assert that the listed uses that are similar in nature and character to the
rendering plant are those classified as I-2, Heavy Industry District. For example, the I-2
Heavy Industry District expressly allows for the uses of “Oil and Fats Manufacture:
Animal and Vegetable” and “Meat Slaughtering and/or Packing.” The Plaintiffs’
assertion in this regard is supported by Pilgrim’s Pride’s representation (by letter of July
29, 2020) to the Alabama Department of Environmental Management (ADEM) that its
rendering plant operations would be classified under “SIC Code 2077 – Animal Fats and
Oil.”

7. The Plaintiffs allege that given the plain language of Gadsden Code Section 130-312(a),
the decision of the City’s building official is not discretionary, but must be based on a
classification similar in nature and character to the uses that are listed. They contend that
an interpretation that rendering plant operations would be properly zoned and thus
allowed in an I-1 Light Industry District is arbitrary and capricious. The Plaintiffs allege
that as a result of such arbitrary and capricious interpretation, their property interest
would be harmed by the situation of a rendering plant on the subject property.

The Plaintiffs seek a declaratory judgment determining that such interpretation is, in fact,
arbitrary and capricious. The first question is whether declaratory relief is appropriate at
all in this case. The purpose of the Declaratory Judgment Act is to settle and afford relief
from uncertainty and insecurity with respect to parties’ rights, and it is to be liberally
construed and administered. Section 6-6-221, Alabama Code (1975), as amended. The
Court finds that the issues presented by this case constitute the very sort of justiciable
controversy appropriate for declaratory relief under Alabama law. See Blount v. Valley
National Bank (Ex parte Valley National Bank), 297 So.3d 1155, 1158 (2019).

8. The central issue in this case is whether an interpretation that rendering plant operations
would be properly zoned and thus allowed in an I-1 Light Industry District is arbitrary
 DOCUMENT 367

and capricious. Before the Court can determine whether a preliminary injunction should
issue in this case, it first must determine whether the Plaintiffs are due the declaratory
relief they seek. In 2014, the Alabama Supreme Court articulated the following standard
to guide a trial court in a case challenging the propriety of application of a particular
zoning classification to a specific parcel of property:
In zoning cases, we have noted that there are two applicable rules: the “substantial
relationship rule” and the “fairly debatable rule.” We explained the applicability
of these two rules in BP Oil Co. v. Jefferson County, 571 So.2d 1026 (Ala. 1990):
“The substantial relationship rule is a substantive law, and may be simply stated
as follows: In order for a zoning ordinance or regulation to be valid, it must have
some substantial relationship to the promotion of the public health, safety, morals,
or general welfare. When correctly applied, this rule is not in any manner
modified by the fairly debatable rule. The latter rule, being a rule of procedure or
application, may be simply stated as follows: If the application of a zoning
classification to a specific parcel of property is reasonably subject to
disagreement, that is, if the application is fairly debatable, then the application of
the ordinance by the zoning authority should not be disturbed by the courts. Of
course, it is always a matter for the court to determine whether a zoning authority
acted reasonably or fairly, or whether capriciously or arbitrarily. The fairly
debatable rule applies to the application of the ordinance and does not modify the
requirement that the ordinance itself and the application therefore must have a
reasonable relationship to the health, safety, morals, or general welfare.

City of Alabaster v. Shelby Land Partners, LLC, 148 So.3d 697, 704-05 (Ala. 2014).

The Supreme Court further discussed as follows the application and meaning of the term
“fairly debatable”:

A zoning determination is said to be fairly debatable “when for any reason it is

open to dispute or controversy on grounds that make sense [emphasis added] or
point to a logical deduction that in no way involves its constitutional validity.”
Miami Beach v. Lachman, 71 So.2d 148 (Fla. 1953), or where the evidence
provides a basis for a fair difference of opinion as to the application of the
determination to particular property. See generally, 1 R. Anderson, American
Law of Zoning, Section 3.20 (2nd ed. 1977).

City of Birmingham v. Morris, 396 So.2d 53, 55 (Ala. 1981).

Having identified applicable current law as defined by the Alabama Supreme Court, this
Court proceeds to analyze the City’s Zoning Ordinance in light of the facts presented in
this case. First, the Court must look to questioned verbiage in the Ordinance itself to
determine whether it has some substantial relationship to the promotion of the public
health, safety, morals, or general welfare. The City’s Chief Building Official forthrightly
noted in his testimony, an internal inconsistency in the Zoning Ordinance itself, as
discussed below.
 DOCUMENT 367

9. As noted above, the Zoning Ordinance prescribes the uses permitted in each of the types
of zoning districts. Section 130-312(a) states that for any use not listed, the building
official shall make a determination of the districts in which such use shall be permitted as
a use by right, a use requiring planning approval or a special exception use on the basis
of its similarity in nature and character to uses that are listed. Section 130-312(c) of the
Zoning Ordinance, however, unambiguously provides that all uses not listed are
prohibited. On the basis of Section 130-312(c), an argument could be made that because
rendering plant operations are not listed as a permitted use, rendering plants are
prohibited outright within the city limits of Gadsden.
Despite the foregoing obvious statutory inconsistency, the Court does not base its ruling
in this Order on a finding that rendering plants are prohibited in all zoning districts
because such operations are not listed as a permitted use under the Zoning Ordinance
(although this could be a matter for consideration at the final hearing in this case).
Certainly, it is conceivable that other industrial or business uses which are largely
welcome in the community might not be among listed uses. Presumably, in such
instances, a mechanism would need to be available to allow for such desired use in an
appropriate district, providing a field of operation for the examination of similar uses.

The Court instead bases its ruling in this Order on a determination that the application of
the I-1 zoning classification to the subject property is not even fairly debatable. In one
1984 decision, the Alabama Supreme Court observed that “Arbitrariness and
capriciousness by municipal governing bodies cannot be sanctioned under the
denomination ‘fairly debatable’. Anything is debatable. Everything is not ‘fairly
debatable.’” Hall v. Jefferson County, 450 So.2d 792, 797 (Ala. 1984). Any
interpretation under the Zoning Ordinance that rendering plant operations should be
permitted in an I-1 Light Industry District is unreasonable, arbitrary and capricious. The
bases of the Court’s conclusion in this regard include the following:

A. First, even a mere comparison of the definitions of I-1 districts as opposed to I-2
districts makes it obvious which is suitable for rendering plant operations. I-1 districts
are suitable for “light manufacturing, wholesaling and similar uses”. I-2 districts, on
the other hand, are suitable for “heavy manufacturing and related activities.” The
Court cannot conceive of a type of manufacturing which would be “heavier” than that
of a rendering plant, as such use has been described to the Court. The evidence
presented at the hearing established that every day, 24/7, some one hundred twenty
(120) truckloads of dead chickens, whole or in part, bones, feathers and blood, would
be brought into the plant for the manufacture of dog food. Such a schedule would
indicate a virtual motorcade of such trucks, some five (5) per hour, or a truck almost
every 10 minutes.

B. The next basis for the Court’s conclusion would arise out of a fair and reasonable
discharge by the City of its responsibility, when presented with a question as to
appropriate zoning of a use not listed in the Zoning Ordinance’s schedule of uses, to
 DOCUMENT 367

make a determination of the districts in which such use shall be permitted on the basis
of its similarity in nature and character to uses that are listed. Manufacturing uses
allowed in I-1 districts include, among others, Automobile and automobile
components manufacture, Beverage manufacture: Non-alcoholic, Beverage
manufacture: Beer, etc., and Food manufacture. Poultry storage and/or dressing is a
permitted use in an I-1 district, but only with the specified condition of “live” poultry.

By contrast, “Oil and Fats Manufacture: Animal and Vegetable” and “Meat
Slaughtering and/or Packing” are not permitted uses in an I-1 Light Industry District,
but they are expressly allowed in an I-2 Heavy Industry District. The similarity of
nature and character which obviously exists between rendering plant operations and
other uses in I-2 districts does not exist between such operations and the lighter
industry uses in I-1 districts.

C. The last and best basis noted for the Court’s conclusion is the assessment of the
rendering plant proponent itself. It appears from testimony of the Chief Building
Inspector for the City that initially, uncertainty existed on the part of the City as to
the appropriate categorization of rendering plant operations for zoning purposes. No
such uncertainty existed on the part of Pilgrim’s Pride. It represented by letter of July
29, 2020, to the Alabama Department of Environmental Management (ADEM) that
its rendering plant operations would be classified under “SIC Code 2077 – Animal
Fats and Oil.” . . . the very classification prohibited by the City in an I-1 district, and
allowed only in an I-2 zone. The proponent which, if allowed, would conduct
rendering plant operations at 3900 Steele Station Road ought to know the correct
zoning classification of those operations, and by its own acknowledgment,
demonstrates that such operations may not be conducted in an I-1 zone.

10. The Plaintiffs initiated the present litigation days after the City Attorney advised that the
consensus among the Planning and Building Departments was that I-1 zoning was the
appropriate classification so long as the rendering was limited to poultry. At the hearing
held on the Plaintiffs’ application for a Preliminary Injunction, the city’s counsel took the
position that this assessment was nothing but “water cooler talk”, and not an actual
zoning determination. The City’s Chief Building Inspector testified that no event has
triggered a zoning determination, but that he might now be inclined to determine that a
rendering plant is suitable to an I-1 district rather than an I-2 District. Because the rights
of many individual and corporate citizens of Etowah County is at stake in this case, the
Court is unwilling to leave the issue to chance. It thus hereby grants declaratory relief as
sought by the Plaintiffs insofar as it holds that any interpretation under the Zoning
Ordinance that rendering plant operations should be permitted in an I-1 Light Industry
District is unreasonable, arbitrary and capricious.

11. At certain hearings in this case before the Court, corporate counsel for Pilgrim’s Pride
announced that if it acquired the subject property for its desired rendering plant, it would
 DOCUMENT 367

commence proceedings to have it rezoned to I-2. It since has been argued to the Court
that no issue remains for court adjudication in light of the assurance given the Court by
Pilgrim’s Pride. This Court has no reason to disbelieve Pilgrim’s Pride’s representations
(although Plaintiffs’ counsel did question its credibility, in light of what such counsel
characterizes as presumably false written representations on an ADEM application to the
effect that it was the “owner” of the subject property); however, at least three factors
prevent alleviation of the Court’s concerns as a result of the assurance. First, it is not
unheard of for a corporation to form a subsidiary or other related entity for purposes of a
contemplated transaction, including acquisition of real property. If that were to occur in
this case, a purchase of the subject property could be closed in the name of a related
entity, and zoning approval sought to locate a rendering plant in the present I-1 district,
all without commission of a technical breach of the assurance given in open court.
Second, the assurance, at best, is a gratuitous promise given by a non-party to this
litigation. As a general principle, a gratuitous promise is not legally enforceable in any
event. See Self v. Slaughter, 16 So.3d 781 (Ala. 2008). Finally, rather than acquiring the
subject property, it could well lease the property. The evidence in this case indicates that
such prospect has been discussed as an option. In the event it leased, rather than
purchased the property, it could at the appropriate time seek a building permit under the
current I-1 zoning, again without violating its stated assurance. In short, the Court does
not find the issues raised in this case to be moot by virtue of Pilgrim’s Pride’s assurances
in Court.

12. The prospect of Pilgrim’s Pride’s seeking to rezone the subject property to I-2 is not a
matter addressed by this Order. The reason for this is that theoretically, zoning could be
approved under I-1 to one acquiring the subject property, because it is the current zoning,
without notice or a hearing. Rezoning would be required, however, to change the zoning
to I-2, with accompanying requirements under the Zoning Ordinance of the right of
surrounding property owners to advance notice and a hearing. The fact that such prospect
was raised by Pilgrim’s Pride, however, prompts certain additional concerns.

In 1926, when zoning laws were relatively new, the Supreme Court of the United States
recognized the inconspicuous threat zoning laws posed to property rights. See Village of
Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 386, 47 S.Ct. 114, 71 Led. 303 (1926).
Since that time, it is largely agreed that zoning laws can be utilized for both good and
bad, thus the prohibition against arbitrary and capricious zoning decisions. The Alabama
Supreme Court has noted that an ad hoc, piecemeal approach to municipal zoning lends
itself more readily to arbitrary, capricious, unreasonable, or spot zoning situations, and
that there thus must be a direct and tangible link between overall municipal planning and
overall municipal zoning. COME v. Chancy, 289 Ala. 555, 562, 269 So.2d 88, 97
(1972). Spot zoning is arbitrary and capricious. Such spot zoning occurs when municipal
officials attempt to partially zone a municipality or zone by “piecemeal.” Johnson v. City
of Huntsville, 249 Ala. 36, 29 So.2d 342 (1947).
The Zoning Ordinance, upon adoption, included the following in its findings:
 DOCUMENT 367

The zoning commission has divided the city into districts and has prepared
regulations pertaining to such districts in accordance with the comprehensive plan
(master plan) heretofore made and adopted by the city planning commission, . . .

****
The zoning commission has given consideration to the character of the districts
and their peculiar suitability for particular uses, with a view to conserving the
value of buildings and encouraging the most appropriate use of land throughout
the city.

The subject property has been zoned I-1 for many years, part of the master plan
contemplated by those who adopted the Zoning Ordinance. Those who own and reside on
property, those who own and operate businesses on property, and those who administer
and support the schools and churches on property in the vicinity of 3900 Steele Station
Road have reasonably assumed that consistency would continue with respect to uses
allowed on the subject property (if other than actual airport use) being those allowed in I-
1 districts, such as automobile components manufacture, and other uses as discussed
above. They would not reasonably expect piecemeal rezoning so as to allow I-2 heavy
industry, such as a rendering plant.

13. Since the filing of this proceeding, the argument has been made to the Court that this is
“just a zoning case”, and that there thus is no legal basis for inquiry into the various
tangible steps which would appear to have been made by Pilgrim’s Pride and others with
whom it has dealt, to make its rendering plant at 3900 Steele Station Road a reality. This
argument has been made both by the City and by the GAA, as well as by a number of
other entities from whom documents have been sought through requests under the Open
Records Act and through subpoenas. Those making this argument could well be correct if
all the Plaintiffs sought was an academic determination as to whether an interpretation
under the Zoning Ordinance that rendering plant operations should be permitted in an I-1
Light Industry District is unreasonable, arbitrary and capricious. The declaratory relief,
however, was not all that was sought by the Plaintiffs. They also sought injunctive relief
as a remedy to enforce the declaratory relief. Only by inquiring into what tangible steps,
if any, have been taken for Pilgrim’s Pride’s rendering plant to become a reality, can it be
determined whether the Plaintiffs face a threat of injury whatsoever.

14. By their original and amended complaints, the Plaintiffs essentially sought a permanent
injunction enjoining an interpretation of the Zoning Ordinance whereunder rendering
plant operations would be permitted in an I-1 Light Industry District. On April 29, 2021,
the Plaintiffs filed an application for a Preliminary Injunction, alleging that it recently
had been learned that Pilgrim’s Pride was soliciting bids for construction on the subject
property to begin on August 1, 2021. Because of the urgency alleged, the Court
proceeded to set a hearing which ultimately was held on May 24 and May 27, 2021.
 DOCUMENT 367

A preliminary injunction may issue only when the party seeking it demonstrates the
following:

A. That without the injunction the party would suffer irreparable injury;
B. That the party has no adequate remedy at law;
C. That the party has at least a reasonable chance of success on the ultimate merits;
D. That the hardship imposed on the party opposing the preliminary injunction by the
injunction would not unreasonably outweigh the benefit accruing to the party seeking
the injunction.
Southtrust Bank v. Webb-Stiles Company, Inc., 931 So.2d 706, 709 (Ala. 2005).

15. The first issue to be considered is whether, without the injunction, the Plaintiffs would
suffer irreparable injury. The Defendants argued in their motions to dismiss, and they
have continued to argue that the Plaintiffs inappropriately seek an advisory opinion from
the Court, that the subject property has not been sold to Pilgrim’s Pride, that no facility
has been constructed, and that no building permit or business license has been requested
or issued, and that this case is not ripe for adjudication. The documentary evidence in this
case, including that outlined below, demonstrates that while the rendering plant is not
under construction, yet a steady chain of events reasonably calculated to conclude with
such construction have, in fact, taken place:

A. On July 29, 2020, Pilgrim’s Pride transmitted to the Alabama Department of

Environmental Management [“ADEM”] its Construction Permit Application for New
Animal Feed Ingredients Plant (designated “Title V Permit Application Gadsden
Animal Feed Ingredients Plant”). The Application included a “Date
construction/modification to begin” of “Early 2021”, and a “to be completed” date of
“Fall 2022.” It stated that the Permit application was being made to obtain an “Air
permit” and a “Major source operating permit.” It indicated a standard industrial
classification (SIC) of “2077 Rendering Poultry By-Products.” The Application
indicated that the Normal Schedule of Operation was 24 hours a day, 7 days a week,
and 52 weeks per year. Accompanying the Application were detailed drawings of
“Process Flow Diagram” (including flow for air and wastewater), detailed
specifications and drawing of boilers, detailed specifications and drawings of thermal
oxidizers and scrubbers.

The “Facility and Process Description” provided by Pilgrim’s Pride states that the
facility in Gadsden will receive raw chicken meat, bones, feathers, blood and
secondary protein material via truck. The raw materials will be processed through
cooking and drying processes to produce poultry meals, poultry fat and feather meal,
which will be loaded onto trucks and shipped offsite to animal feed manufacturers.
Raw feathers are received in trailors and dumped into a feather bin, and conveyed to
hydrolyzers and a feather meal dryer. Blood will be pumped from tanker trailers into
storage tanks, and processed using coagulators and decanters to recover the solids.
 DOCUMENT 367

The solids will be combined with the feather meal, and the moisture removed is
discharged to the wastewater treatment system prior to discharge to the publicly
owned treatment works.

B. On July 29, 2020, the General Manager of the Gadsden Water Works and Sewer
Board [“GWWSB”] emailed the Director of the Gadsden-Etowah Industrial
Development Authority [“IDA”] concerning “Project Cardinal”, which was identified
in Court as Pilgrim’s Pride. He advised that the company had verbally committed
pending approval of an air permit to the Alabama Department of Environmental
Management (ADEM), Federal Aviation (FAA) Approval, and other environmental
concurrences.

C. On August 6, 2020, Pilgrim’s Pride emailed the Director of the IDA, discussing the
measures in place to prevent and control wildlife on and around the plant site, and
advising that all raw and finished materials are stored and transported in cover or
controlled manner, and that spills are cleaned up quickly to prevent odor and wildlife
issues.

D. At the meeting of the Gadsden Airport Authority [“GAA”] on September 18, 2020,
the Chairman announced that a new business had been working with the IDA about
possibly purchasing or leasing approximately 88 acres of airport property.

E. On October 2, 2020, the Director of the GWWSB emailed Ms. Crystal Talley, of
ADECA, a narrative in support of an ARC grant to the GWWSB. The narrative
stated that the City, the IDA and the GWWSB had combined their efforts in a
business recruitment campaign in an industrial corridor including Steele Station
Road, and that the effort culminated in the recruitment of Pilgrim’s Pride, and
expansion of three existing industries. It stated that GWWSB requested ARC funding
to cover as much as possible of the Phase II of an infrastructure improvement and
expansion project along the corridor to address inflow and infiltration issues in its
sanitary sewer collection system, rehabilitate pump stations, and upgrade the area’s
water and sewer capacity. It added that without vital Phase II funding, the City will
lose Pilgrim’s Pride’s commitment.

F. On October 1 and October 21, 2021, conference calls concerning Pilgrim’s Pride and
Gadsden took place between the Mayor, the Director of the GWWSB, representatives
of CDG Engineering, representatives of the East Alabama Regional Planning
Commission, and representatives of Alabama Department of Economic and
Community Affairs [“ADECA”].

G. A letter of October 2, 2020, was directed by the Federal Aviation Administration to

the Mayor and the Chairman of the GAA, acknowledging receipt of the GAA’s land
release request, and advising that because of certain noncompliance (i.e., the City, as
 DOCUMENT 367

the airport sponsor, did not have good title to the airport, having transferred the
majority of the airport property to the GAA in 2004), three options existed for
addressing the noncompliance with a corrective action plan (one of which was a co-
sponsorship status between the City and the GAA).

H. At the October 16, 2020 meeting of the GAA, it was discussed that IDA had a
prospect (Pilgrim’s Pride) for the purchase of land from GAA, and that GAA will
have to go back to the City for the property to be sold, because while title is in GAA,
the City is the airport sponsor.

I. By letter of October 21, 2020, ADECA advised the General Manager of the GWWSB
that to assist in locating Pilgrim’s Pride Corporation, an ARC grant for $1,000,000.00
was being made to expand the existing wastewater infrastructure.

J. On October 23, 2020, Pilgrim’s Pride transmitted to ADEM its State Indirect
Discharge (SID) Permit Application. The Application states on the first page that
Pilgrim’s Pride is the owner of the Pilgrim’s Pride Corporation – Gadsden Animal
Feed Ingredient Plant at 3900 Steele Station Road, for which the Application is made.
The Application indicates as a Sewer Discharge Point, “Underground sanitary sewer
to City of Gadsden West River Wastewater Treatment Plant.” Accompanying the
Application was a detailed Technical Memorandum #1 – Basis of Design Summary
and Attachments.

K. On October 23, 2020, Pilgrim’s Pride emailed to the Director of the IDA and the City
Engineer, an updated boundary and site layout, with stacks and structure elevations
noted along with grid coordinates. It was noted that this should allow the necessary
Form 7460 to the FAA to be completed.

L. On November 5, 2020, the City Engineer emailed the Director of the GWWSB, the
City’s Chief Building Official, and other city officials, and copied same to the IDA
Director, to advise that the industry associated with Project Cardinal had requested an
on-site 80% plan review, and a meeting had been set on December 3, 2020, with the
agenda to include the following: (i). General site review for setbacks, clearances, and
site disturbance/construction storm water permits; (ii). Review 80% drawing for
buildings, foundations, fire, etc.; (iii). Coordinate the utility routing onto site; (iv).
Determine location of the pump station; (v). Application and submittals for getting all
local permits issued to Pilgrims.

M. A “Report of Subsurface Exploration and Geotechnical Engineering Evaluation”,

dated November 6, 2020, was prepared by CDG Engineers for Pilgrim’s Pride, as to
the “Pilgrim’s Rendering Facility – Gadsden, Etowah County, Alabama.” The
lengthy (75 pages) and detailed report presents the subsurface information
encountered at the boring and rock core locations, laboratory test results of
 DOCUMENT 367

representative, on-site samples, and CDG’s recommendations associated with the

development.

N. On November 6, 2020, the GAA submitted a Request for Corps Jurisdictional

Determination (JD) as to the subject property.

O. On November 20, 2020, the City Attorney wrote Congressman Robert Aderholt,
advising that the City, in conjunction with the Airport, desired to sell approximately
85 acres to Pilgrim’s Pride for it to locate a new facility. He requested the assistance
of the Congressman with respect to the Federal Aviation Administration’s denial of
the Airport’s request for written consent and approval to sell a one acre tract to an
existing industry because of noncompliance issues raised by the FAA. He added that
[the City] did not have enough time to pursue any of the options proposed by FAA to
address those issues before securing the deal with Pilgrim’s Pride to purchase the
land.

P. On November 25, 2020, the FAA emailed the Chairman of the GAA concerning the
proposal to develop a dog food processing plant on airport property. The FAA
pointed out that obligated airport property is intended for aeronautical use only, and
any non-aeronautical use must be first approved in writing by the FAA and go
through the proper release procedures. It also pointed out that the FAA must evaluate
the proposal for impacts to airport design surfaces, wildlife attractants, and airspace
around the airport. It requested that the GAA reply with additional information about
the proposal.

Q. On January 14, 2021, a letter from the Federal Aviation Administration was
transmitted to the Mayor advising that it had received multiple inquiries from
concerned citizens and pilots related to “ . . . a proposed rendering plant development
on airport property that could potentially become a wildlife attractant.” The FAA
advised that similar to concerns with a waste transfer facility, it was concerned that
the proposed development of a rendering plant on the Gadsden airport property
would attract hazardous wildlife.

The letter advised of the requirement for airport sponsors to protect against
establishment or creation of future airport hazards, including wildlife hazards. It
noted that the FAA recommended a separation distance of 10,000 feet (some two
miles) between airports serving turbine-powered aircraft (like Gadsden) and a
hazardous wildlife attractant such as the rendering plant. Further, for all airports, the
FAA recommends a distance of five miles between the closest point of the airport’s
aircraft operations area and the hazardous wildlife attractant.

R. On January 15, 2021, emails from the Federal Aviation Administration were
transmitted to the City, and copied to the Chairman of the Gadsden Airport Authority,
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concerning “the Proposed Rendering Plant Development at Northeast Alabama

Regional Airport.”

S. By letter of February 26, 2021, ADEM transmitted to Pilgrim’s Pride, Air Permits
pursuant to the Department’s air pollution control rules and regulations.

T. At the City Council Meeting on March 23, 2021, a resolution was introduced in
writing for consideration, authorizing a co-sponsorship agreement with the Gadsden
Airport Authority [“GAA”] – “required by FAA to specify roles of City and GAA
regarding the airport, and to comply with existing and future grants. Such a co-
sponsorship was one of the three options recommended by the FAA.

U. A solicitation of construction bids for the Pilgrim’s Pride project was placed online
on April 12, 2021, indicating a start date of August 26, 2021.

16. The evidence demonstrates an ongoing effort by a variety of individuals on behalf of the
City, the IDA, the Gadsden Airport Authority, and the Gadsden Water Works and Sewer
Board to recruit Pilgrim’s Pride to build its rendering plant on the subject property,
working in conjunction with ADECA and other agencies and firms. Many meetings have
taken place, and much time has been invested in the project’s success. Among necessary
tangible steps taken toward that end (some of which are discussed in Item 15, above)
have been the procurement of the following: a Boundary Survey; receipt of economic
incentive package from the State; receipt of a local incentive initial offer; an appraisal of
the property; ADEM Air Discharge Permit issued; Application made for ADEM SID
(water discharge permit); Geotechnical Report; topographic survey; clearing of
trees/performance of tests; the property flagged and marked, and access road cut on the
property; environmental study; compilation of legal description of the parcel; wetlands
delineation study; blueprints for rendering plant facility and for wastewater retreatment
plant; Pilgrim’s Pride solicited construction bids in November, 2020, and as noted above,
again in April, 2021. As described in Item 14, above, the GWWSB requested and was
awarded a grant to run sewer to the subject property.

As of March, 2021, the Co-Sponsorship Agreement discussed with the FAA as an option
for correction of the noncompliance issue was entered into between the City and the
Gadsden Airport Authority. It has been submitted to the FAA, awaiting approval. Upon
receipt of such approval, the GAA could proceed to request a release of the property so
as to facilitate a sale to Pilgrim’s Pride. It appears to the Court that but for certain
unanticipated impediments which have arisen (including this litigation), it is likely that
Pilgrim’s Pride already would have broken ground at the subject property.

17. As noted above, the Defendants have maintained, and continue to maintain in briefs
submitted to the court after the preliminary injunction hearing, that for a host of reasons,
the Plaintiffs’ lawsuit is not ripe for litigation. In support of this position, the City argues,
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among other points, the following: “. . . There is no building on the subject property.
There is no foundation on the subject property. There is no parking lot on the subject
property. There is no paved road on the subject property.” Such arguments could be
interpreted as a suggestion that this Court has no basis to entertain the Plaintiffs’
application for a preliminary injunction until a ceremonial groundbreaking for Pilgrim’s
Pride with the proverbial “golden shovel.” Such arguments attempt to stand on its head
the very concept and basis of a preliminary injunction, which is preservation of the status
quo pending a full hearing on the merits of the case. See Macon County Racing
Commission v. Macon County Greyhound Park, Inc., 574 So.2d 819 (1990).

Some of the Plaintiffs and their families reside near the subject property, and are faced
with the prospect of living in a community in which 120 truckloads per day of dead
chickens and parts are delivered “24-7” to the rendering plant, with the hope that any
spillage will be recovered before the cargo’s odor is allowed to permeate their
neighborhood. Schools and at least one church is nearby. The original Plaintiff made a
significant investment in a business near the property, and understandably fears
diminution in his investment and in his business revenues. Another Plaintiff, a contractor
whose office is near the subject property, testified to the loss of significant potential
construction projects in the area, which he attributes to fear by those who otherwise
would invest in the area that the rendering plant will be a reality.

The evidence presented indicates that certain ill effects already are occurring as a result
of the steady and tangible progress of Pilgrim’s Pride to place its rendering plant at 3900
Steele Station Road. The Court thus can understand that the Plaintiffs take little comfort
from the following statement by the City’s counsel “Any potential injury to the plaintiff
or the intervenors is undisputably months away (well beyond the anticipated conclusion
of this litigation) and likely over a year away.” (Defendant City of Gadsden Brief in
Opposition to Preliminary Injunction p.7). This assurance rings especially hollow given
the fact that less than two (2) months ago, Pilgrim’s Pride solicited construction bids for
the rendering plant, with a start date of August 26, 2021, little over two (2) months away.

18. This Court has no doubt that had the Plaintiffs sat idly by, and simply watched the
growing crescendo of visible activity reasonably calculated to culminate in rendering
plant operations, and had they first filed this lawsuit and sought an injunction after
ground was broken, or perhaps after the first truckload of cargo destined for the plant
rolled down Steele Station Road, the Defendants’ very first contention would be that the
Plaintiffs were equitably “estopped” from then raising such protests for the first time,
because they had done nothing as the stage was visibly set and as the injury slowly but
surely manifested itself. See Johnson v. Metro Land Co., L.L.C., 18 So.3d 962, 967 (Ala.
Civ. App. 2009); McMillan, Ltd. v. Warrior Drilling and Engineering Company, Inc., 512
So.2d 14, 37-38 (Ala. 1986).

The Court denied the Defendant’s claims of ripeness when first raised in their Motions to
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Dismiss, and it concludes that they are due to be rejected again. The Court concludes that
without the preliminary injunction, the Plaintiffs will suffer irreparable injury.

19. The Court likewise concludes that the Plaintiffs have no adequate remedy at law. It
would not be possible to put a dollar amount on all of the types of injuries claimed. It
would be difficult enough to evaluate the claims of consequential reduction in property
value by the owners of homes and businesses (in which many citizens have invested their
life’s savings), schools and churches, and loss of business claimed by those engaged in
construction and other trades. There now are some twenty-five Plaintiffs, and based upon
representations by certain of Plaintiffs’ counsel earlier in this proceeding, even more
have sought to be added. What would be impossible is a fair assessment of claims for
consequential reduction in quality of life and enjoyment of their respective properties.

Also impossible to gauge would be claims of loss attributable to aviation risks posed by
the presence of the rendering plant adjacent to an airport runway. One Plaintiff, whose
residence is only some 1/8 mile from the subject property, is a licensed pilot. He owns his
own plane, and flies regularly to and from sites at which his clients are located. He
testified that he had flown in and out of the airport for years; however, he testified that if
the rendering plant were located as sought by Pilgrim’s Pride, he would never again
utilize the airport. He testified that the construction of the plant so close to the runway
would impair his view, thereby adversely affecting his approach and departure angles. He
also expressed concerns about “bird strikes”, the risk of which would be heightened by
construction of a rendering plant next door. His concerns are understandable in light of
the FAA warning described above, that similar to concerns with a waste transfer facility,
the proposed development of a rendering plant on the Gadsden airport property would
attract hazardous wildlife. Moreover, the FAA’s warnings and recommendations raise
concerns on the part of this Plaintiff (and presumably, on the part of others who utilize
the airport) as to the intended viability of the airport for aviation purposes post-rendering
plant.

Also related to concern of those who want to preserve the utility of the airport for
aviation purposes is Gadsden City Ordinance No.: 0-050-07, which amends the Zoning
Ordinance by adding Article XII, entitled “Northeast Alabama Regional Airport Height
Hazard and Land Use Zoning Ordinance.” Adopted by the City in 2007, it contains the
following “Use Restriction”:

Notwithstanding any other provisions of this article, no use may be made of land
or water which is within any zone established by this article in such a manner as
to create electrical interference with navigational signals or radio communication
between airport and aircraft, make it difficult for pilots to distinguish between
airport lights and others, result in glare in the eyes of pilots using the airport,
impair visibility in the vicinity of the airport, create bird strike hazards, or
otherwise in any way endanger or interfere with the landing, taking-off, or
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maneuvering of aircraft intending to use the airport.

The City’s Chief Building Officer confirmed in his testimony that the subject property
was within the restricted area, in that the rendering plant structure would be too close to
the airport itself, and the rendering plant use would enhance the bird strike hazard. The
evidence indicated that the amendment to the Zoning Ordinance was adopted to
incorporate policy prescribed by the Federal Aviation Administration.

20. The third prong of the standard for issuance of a preliminary injunction is that the
Plaintiffs have at least a reasonable chance of success on the ultimate merits. The Court
has conducted a more thorough analysis than normally might be conducted on an
application for a preliminary injunction, in an effort to be sure that the requirements for
issuance thereof were met. Only after the final hearing to be held on July 23, 2021, will
the Court make a determination as to whether the preliminary injunction granted by this
Order will be dissolved or made permanent. In any event, however, the Court certainly
finds that the Plaintiffs have at least a reasonable chance of success on the ultimate merits
of this case.

21. The final item for consideration by this Court, in determining whether a preliminary
injunction should issue, is whether the hardship imposed on the party opposing the
preliminary injunction by entry of the injunction would not unreasonably outweigh the
benefit accruing to the party seeking the injunction. Based upon its own arguments, the
City would face no hardship at all. The City argues by brief that upon application made
by Pilgrim’s Pride to rezone the subject property from I-1 to I-2, the public would
receive notice and opportunity to be heard before the Planning Commission, then before
the Gadsden City Council, on the application for rezoning. The City further argues that
this Court’s issuance of an injunction would usurp and judicially halt the legislative
process. The Court disagrees, in light of the City’s apparent endorsement of the
reliability of Pilgrim’s Pride’s assurance that it will not apply for a building permit prior
to July 23, 2021, the date of the final hearing. Accordingly, based upon its own position,
the City would face no hardship by virtue of entry of the preliminary injunction unless
Pilgrim’s Pride, contrary to its assurance, does seek a building permit prior to that date.
Even if it does so, the Court finds that any hardship which then might be faced by the
City would not unreasonably outweigh the benefit accruing to the Plaintiffs, as the parties
seeking the injunction.

22. This Court is mindful of the economic setback visited upon Etowah County and this area
by the closure of Goodyear Tire and Rubber Company, a corporate citizen for some
century. From hearing the testimony and reviewing the exhibits admitted into evidence,
the Court also is mindful of well-intentioned and diligent efforts by a number of officials
in this county, charged with recruitment and expansion of industry, to seek to mitigate
against the loss suffered; however, diligence in the attainment of that unquestionably
worthy goal must be measured against the rights and interests of citizens who live, own
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property, and do business in this county, and those who administer and attend the
churches and schools here.

23. The undisputed evidence in this case is that despite well-publicized opposition, Pilgrim’s
Pride still wants to locate its rendering plant at 3900 Steele Station Road. The Defendants
have attempted to characterize all developments toward that end that have occurred to
date as “due diligence.” The protracted and extensive nature of those developments
obviously is more than can reasonably be dismissed as due diligence. The fact is that the
few impediments which remain in the way of Pilgrim’s Pride could well be eliminated at
any time, whether through legal, political, or other processes. Pilgrim’s Pride then,
unbeknownst to the citizens of Etowah County, could apply for a building permit from
the City of Gadsden. The Chief Building Inspector then could be called upon to conclude
that a rendering plant operation is more similar to I-1 uses than to I-2 uses, and issue the
permit to Pilgrim’s Pride on the subject property, currently zoned for I-1 district. Having
initially speculated that operation of a rendering plant is a use more akin to uses in I-1
districts, he testified in Court that he now would be “inclined” toward determining that a
rendering plant is more similar in nature and character to uses in I-2 districts, effectively
requiring rezoning before a building permit could be issued on the subject property;
however, in light of the history of this case, and further considering the rights and
interests of all the citizens of Etowah County, this Court is not persuaded that such rights
and interests are sufficiently protected by a mere inclination not to arbitrarily and
capriciously deem a rendering plant as suitable in an I-1 zoning district.

24. Wherefore, all requirements of Alabama law for entry of a preliminary injunction
having been met, it is hereby ordered that the City of Gadsden, its officers, agents,
servants, employees, and attorneys, and all persons in active concert or
participation with them who receive actual notice of this Order by personal service
or otherwise, are hereby RESTRAINED AND ENJOINED from making or
participating in any interpretation under the Zoning Ordinance of the City of
Gadsden that rendering plant operations are permitted in an I-1 Light Industry
District, and consequently, from issuing a building permit for rendering plant
operations in such District.

25. Rule 65(c) of the Alabama Rules of Civil Procedure provides that a preliminary
injunction shall not issue except upon the giving of security by the Plaintiffs, as the
parties seeking such injunction, in such sum as the court deems proper, for the payment
of such costs, damages, and reasonable attorney fees as may be incurred or suffered by
any party who is found to have been wrongfully enjoined or restrained. Accordingly, the
preliminary injunction rendered by this Order shall become legally effective upon the
posting of a surety bond in the amount of $5,000.00 with the Circuit Clerk of Etowah
County, or the giving of other security in such amount.

26. The parties added as Plaintiffs by intervention in this litigation shall proceed forthwith to
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pay such filing fees as are required of additional plaintiffs.

27. A timely pleaded claim of nuisance (pursuant to Beavers v. County of Walker, 645 So.2d
1365 (Ala. 1994), or otherwise) will be considered by the Court at the final hearing in
this case. No preliminary injunction is issued at this time against the Gadsden Airport
Authority, but the issue of whether a permanent injunction will issue likewise will be
considered at the final hearing.

DONE this 7th day of June, 2021.

/s/ GEORGE C. DAY, JR.

CIRCUIT JUDGE