DOCUMENT 24

ELECTRONICALLY FILED
10/24/2022 9:31 PM
47-CV-2022-900946.00
CIRCUIT COURT OF
MADISON COUNTY, ALABAMA
DEBRA KIZER, CLERK
IN THECIRCUIT COURT FOR MADISON COUNTY, ALABAMA

KENNETH WELCH AND SHERI )

WELCH, et al., )
)
Plaintiffs, )
)
v. Case No. 47-CV-2022-900946.00
)
THE CITY OF HUNTSVILLE, et al., )
)
Defendants. )

MOTION TO DISMISS

Pursuant to Rule 12(b)(6) of the Alabama Rules of Civil Procedure, Defendant See Forever

Development Partners, LLC (“SFDP”) moves the Court for entry of an Order dismissing this action

and any claim asserted against it in the Complaint filed by Plaintiffs Kenneth Welch, Sheri Welch,

Kelly Wells, Bertram Morris, Katherine Morris, Neil Czajkowski, and Ava Czajkowski

(“Plaintiffs”).

INTRODUCTION

Plaintiffs decry the reasoned and reasonable decision of the city of Huntsville, Alabama

(“City”)—including its City Council, Planning Commission, Planning Director, and various

departments and officials (such as the traffic engineering and water pollution control offices)—to

rezone the Property 1 from Residence 1-A District (“R1-A”) to Planned Development—Housing

District, LUI 37 (“PD-H”) after approximately 18 months of conferences, reports, reviews, and

public hearings. Plaintiffs regurgitate unmeritorious (and largely nonsensical) arguments already

raised during two public hearings. But Plaintiffs’ disagreement with City’s exercise of its

legislative authority by adopting Ordinance No. 22-235 to amend the City’s Zoning Ordinance for

the “public welfare” does not afford them an opportunity for judicial review. Simply, Plaintiffs’

1
The “Property” owned by SFDP is particularly described in Ordinance No. 22-235 attached to the
Complaint as Exhibit D. (Doc. 2 at Ex. D, p. 1-2).
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belated Complaint does not state a viable claim against SFDP for which Plaintiffs possess standing

to pursue. For these reasons, Plaintiffs’ Complaint is due to be dismissed.

ARGUMENT AND AUTHORITIES

I. SFDP ADOPTS AND INCORPORATES THE CITY’S MOTION TO DISMISS AND BRIEF
IN SUPPORT OF THE MOTION TO DISMISS.

To avoid duplication and for judicial efficiency, SFDP adopts and incorporates the

argument, authorities, and analysis in the City’s Motion to Dismiss (doc. 11) and Brief in Support

of the Motion to Dismiss (doc. 12). The Complaint should be dismissed for the reasons discussed

in the City’s Motion to Dismiss.

II. PLAINTIFFS FAIL TO STATE A CLAIM AGAINST SFDP.

A. PLAINTIFFS LACK STANDING

Plaintiffs’ Complaint fails to state any claim, much less a claim upon which relief may be

granted against SFDP and in favor of Plaintiffs. (Doc. 2). Plaintiffs do not attack any action by

either the City or SFDP under a legally cognizable theory of Alabama law. Plaintiffs simply point

to “Code of Alabama 6-220 et seq.” Perhaps, Plaintiffs intended Alabama Code § 6-6-220, et seq.

Nevertheless, Plaintiffs do not invoke any particular statutory provision, and certainly do not attack

the validity of the Zoning Ordinance or the application of the Zoning Ordinance to their properties.

Ala. Disposal Solutions-Landfill, LLC v. Town of Lowndesboro, 837 So. 2d 292 (Ala. Civ. App.

2022) (landfill operator sought declaration concerning his contract with county in light of new

town ordinance); Chapman v. City of Troy, 4 So. 2d 1 (Ala. 1941) (property owner sought

declaration concerning application of ordinance to his property).

To the contrary, Plaintiffs ask this Court to declare void the City’s rezoning of SFDP’s

Property through Ordinance No. 22-235 and to stop development of the Property. (Doc. 2 at 7).

Plaintiffs lack standing to pursue any such claim. Poiroux v. Rich, 150 So. 3d 1027, 1039 (Ala.

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2014) (standing applies in this context). From the face of the Complaint, it is clear that Plaintiffs

lack an “actual concrete and particularized ‘injury in fact.’” Ex parte HealthSouth Corp., 974 So.

2d 288, 293 (Ala. 2007) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

Plaintiffs simply complain about potential future impacts to their “property values,” the “character

of the surrounding neighborhood,” and other theoretical harms. (Doc. 2 at 6-7). Of course,

Alabama courts reject “financial loss and depreciation in the value of their property” as a sufficient

injury in fact. City of Alabaster v. Shelby Land Partners, LLC, 148 So. 3d 697, 707 (Ala. 2014);

Episcopal Found. of Jefferson Cnty. v. Williams, 202 So. 2d 726, 730 (Ala. 1967). Moreover,

neither a declaratory judgment nor injunctive relief can be granted for anticipated or speculative

future controversies and harm. Surles v. City of Ashville, 68 So. 3d 89, 93 (Ala. 2011);

Birmingham Bd. of Educ. v. Boyd, 877 So. 2d 592, 594 (Ala. 2003).

B. PLAINTIFFS’ ALLEGATIONS FAIL AS TO SFDP

Plaintiffs’ “factual allegations” concerning SFDP in the Complaint are limited to (1)

SFDP’s formation in May 2020; (2) SFDP’s purchase of the Property in October 2020; and (3)

SFDP’s application for rezoning to PD-H. (Doc. 2 at 2). 2 But SFDP had an unquestionable right

to seek rezoning of its Property from R1-A to PD-H under the City’s Zoning Ordinance. (See Art.

30.1, City of Huntsville Zoning Ordinance). 3 Indeed, over 30 years ago, the Alabama Supreme

Court recognized the planned development process to be a “well-accepted and recognized planning

device used for relatively large tracts of land to promote flexibility and to take advantage of open

2
The Complaint lacks page numbers. (Doc. 2). For ease of reference, SFDP attributes page numbers to
the Complaint.
3
The City’s Zoning Ordinance is referred to in the Complaint and central to Plaintiffs’ putative claim and,
therefore, it may be considered in adjudicating a motion to dismiss. See Bell v. Smith, 281 So. 3d 1247,
1252 (Ala. 2019); City of Huntsville Zoning Ordinance, available at https://www.huntsvilleal.gov/wp-
content/uploads/2022/09/ZonOrd-as-of-9-2-2022.pdf.

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space and clustering of development not possible under traditional zoning concepts.” Homewood

Citizens Ass’n v. City of Homewood, 548 So. 2d 142, 143 (Ala. 1989). Consistent with this “well-

accepted and recognized planning device,” SFDP pursued the PD-H process to preserve the

hillside, trees, natural habitat, and trail system on and around the Property through clustering of

development. However, “[i]n exchange for the flexibility in planning, the City retains greater

control over the development process.” Id. (citing 2 Anderson, American Law of Zoning 3d, §§

11.12-11.24 (1986)).

From the face of the Zoning Ordinance, neither Section 30.2 nor Article 65 of the Zoning

Ordinance apply to a PD-H application under Article 31 of the Zoning Ordinance. (See Sec. 31.1,

City of Zoning Ordinance). Nowhere in the Complaint do Plaintiffs contend or assert facts

demonstrating that the City elected to use “general zoning, subdivision, or other regulations or

requirements” over the PD (Article 30) and PD-H (Article 31) regulations in approving SFDP’s

rezoning and adopting Ordinance No. 22-235. (See Doc. 2). 4 Instead, Plaintiffs contend the City

failed to appropriately apply a PD-specific regulation (Section 30.3.1) in the Zoning Ordinance

and, additionally, failed to apply a non-PD-specific regulation—the slope development district

regulations (Article 65)—to the rezoning of the Property under Article 31. (Doc. 2 at 2-5).

However, nothing in Article 31 of the Zoning Ordinance required application of the slope

development district regulations (Article 65), and Plaintiffs’ Complaint does not assert a factual

basis for the application of the slope development district regulations (Article 65) to rezoning

under the PD or PD-H regulations and amendment of the Zoning Ordinance. (See Art. 31, City of

Huntsville Zoning Ordinance; Doc. 2).

4
Under Section 30.5.6 of the Zoning Ordinance, the City Council approves a PD application consistent
with zoning amendments generally. (Sec. 30.5.6, City of Huntsville Zoning Ordinance; see also Art. 90,
City of Huntsville Zoning Ordinance).

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Section 30.3.1 of the Zoning Ordinance does not help Plaintiffs. Assuming for purposes

of this Motion that Plaintiffs are correct and SFDP’s Property will connect by “local street” through

the Heritage of Monte Sano, Section 30.3.1 of the Zoning Ordinance does not prohibit this result.

Instead, use of a “local street” simply requires a traffic demand analysis and a certification. (Sec.

30.3.1, City of Huntsville Zoning Ordinance). Plaintiffs fail to plead any facts demonstrating a

“violation” of Section 30.3.1 of the Zoning Ordinance—especially in light of the amendment

reflected in Ordinance No. 22-235. Plaintiffs’ Complaint focuses solely on the general rule (again,

existing before Ordinance No. 22-235), not the clear exception to the general rule. Id. Because

Plaintiffs abandoned their duty to assert facts demonstrating a viable claim against SFDP for which

relief may be granted, the Complaint is due to be dismissed. Ala. R. Civ. P. 12(b)(6).

CONCLUSION

Plaintiffs seek to derail a unique, multimillion-dollar residential development through this

action filed months after the City rezoned SFDP’s Property to PD-H. Plaintiffs’ action is frivolous

and their “Complaint” fails to comply with applicable pleading rules, fails to state a claim upon

which relief can be granted, and perpetuates a tired argument without any basis in fact or law. Ala.

R. Civ. P. 8, 10, 12(b)(6). Indeed, from the face of the Complaint and the Zoning Ordinance, it is

clear that Plaintiffs lack any basis for declaratory or injunctive relief. Additionally, Plaintiffs lack

standing to pursue any claim against the City or SFDP. As a result, Plaintiffs’ Complaint is due

to be dismissed.

Dated: October 24, 2022.

/s/ Matthew B. Reeves

Matthew B. Reeves
One of the Attorneys for Defendant See Forever
Development Partners, LLC

Matthew B. Reeves

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Benjamin L. McArthur
MAYNARD, COOPER & GALE, PC
655 Gallatin Street, S.W.
Huntsville, AL 35801
Telephone: (256) 551-0171
Facsimile: (256) 512-0119
E-mail: mreeves@maynardcooper.com
bmcarthur@maynardcooper.com

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been served upon all attorneys of record
in this matter, including without limitation the following, by the Court’s ECF system on this 24th
day of October, 2022:

Robert V. Rodgers David J. Canupp

ABLES, BAXTER & PARKER, P.C.
2049 Commerce Court
Suite A
Huntsville, AL 35804
Telephone: (256) 533-3740
Facsimile: (256) 533-0554
E-mail: rrodgers@ablesbaxter.com
Attorney for Plaintiffs
Allison B. Chandler
LANIER FORD SHAVER & PAYNE, P.C.
2101 West Clinton Avenue
Suite 102
Huntsville, AL 35805
Telephone: (256) 535-1100
Facsimile: (256) 533-9322
E-mail: djc@lanierford.com
abc@lanierford.com

Attorneys for Defendant City of

Huntsville, Alabama

/s/ Matthew B. Reeves

Of Counsel