In Legal Terms - Convention Issue 2000

Elmore County Commission Versus Smith Revisited

Although many of you have already received this news, I feel compelled to follow-up on one of the cases reported in my last article for The County Commissioner. In that article, I discussed the adverse ruling from the Supreme Court of Alabama in Elmore County Commission vs. Smith, et al. where the Court held that, in order to perfect a vacation of a road initiated by the abutting landowners, a hearing must be held in probate judge following consent to the closure by the county commission. I noted in the earlier article that the county had filed an Application for Rehearing. Well, on July 21, 2000, the Court granted the Application, withdrew its original opinion, and issued a new opinion favorable to the county and restoring the long-held view that where vacation is by consent of the abutting landowners, no hearing is required.

The original opinion was decided by a split court (6-3). However, in the new opinion, a unanimous Court concluded that the statutes addressing the vacation of roads set out different procedures depending upon whether the action is initiated by abutting landowners or by the governing body. Noting that the separate procedures are found in separate articles of the Code, the Court held in its substituted opinion that where the vacation is initiated by abutting landowners, the hearing procedures required for vacation by a county or municipality do not apply. The landowners are required to obtain the assent of the county commission (or municipal governing body if the vacation is in a municipality), which must be evidenced by a resolution and filed in probate court. However, there is no requirement that a petition for vacation of the road be filed in probate court, and there is no requirement for a hearing in that court.

In essence, the Supreme Court did a complete about-face, and reversed itself in the opinion released on July 21, 2000. It is unclear from the new opinion what, in particular, persuaded the Court to change its position. Nonetheless, the new (and hopefully, final opinion) adopts almost every argument asserted by the county in its briefs filed in the case, and is a well-reasoned opinion allowing all counties (and municipalities) to breathe a huge sigh of relief.

The Supreme Court did remand the case to the Circuit Court for further proceedings consistent with its issued opinion. However, the only issue left to be decided is whether the vacation deprives other property owners of convenient and reasonable means of ingress and egress to and from their property. The plaintiffs challenging the vacation have argued that closing the road in question forces them to take an alternative road which is more congested and is impractical during morning and afternoon rush hour. They maintain that they have, thus, been denied the "convenient enjoyment" of their property. On the other hand, the county has argued, that there is a convenient alternative route to and from the plaintiffs' property which distinguishes this case from those cited by the plaintiff wherein neighboring landowners were denied any access to certain areas by the proposed road closing.

The tone of the Supreme Court's holding gives a strong indication that it agrees with the county on this issue as we... In its closing paragraph, it held that "when viewed in the light most favorable to the Payson defendants . . . the evidence suggests that the Smith plaintiffs were not deprived of a 'convenient and reasonable means of ingress and egress to and from their property.'" This is certainly supportive of the county's position in this case, and a clear break from the holding in the original opinion that those supporting vacation must show a "public necessity" for the closure.

The statutes at issue in this case are poorly written and very confusing, and the cases attempting to interpret them are inconsistent and difficult to follow. However, the opinion issued by the Supreme Court on Application for Rehearing in Elmore County Commission v Smith et al. makes a very good attempt to clear up some of the confusion and to establish a clear and workable interpretation of these laws. Of course, the final chapter on this case has not yet been written, since the plaintiffs have now filed an Application for Rehearing, and even if it is denied, the case will return to the trial court for further proceedings (which could end up back in the appellate courts). However, if the Supreme Court will stick to its holding in this case, and follow it in future cases on this issue, counties should be able to proceed in road closure cases as they have in the past, where adjoining landowners request the assent of the governing body following the execution of a declaration of vacation signed by all adjoining landowners, and where, once that assent has been evidenced by resolution of the county governing body and is filed in the probate court, the vacation is completed without a hearing or further proceeding.