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WATER WORKS AND SEWER BD. v. Shelby County
Citations: 624 So. 2d 1047; 1993 Ala. LEXIS 814; 1993 WL 314856Docket: 1920716
Court: Supreme Court of Alabama; August 20, 1993; Alabama; State Supreme Court
The case of *The Water Works and Sewer Board of the City of Birmingham v. Shelby County* centers on a dispute regarding the installation of water and sewer lines along the Shelby County Highway 41 corridor. Birmingham Water Works sought to install water lines to service a new development by Bill Eddleman, while Shelby County had a similar project for Daniel Realty's Greystone development. Birmingham Water Works applied for an excavation permit on May 15, 1992, but the application was neither approved nor denied. Instead, Shelby County suspended all utility permit applications on July 27, 1992, pending a water service study by a consulting engineer. The study was completed and submitted to the county commission on December 14, 1992. Birmingham Water Works subsequently petitioned the Circuit Court of Shelby County for a writ of mandamus to compel the county to issue the excavation permit. A hearing was held on January 7, 1993, where evidence, including depositions and the water study, was considered. On January 26, 1993, Circuit Judge D. Al Crowson issued an order denying the writ of mandamus, concluding that the evidence and arguments did not warrant the issuance of the permit. The court's decision affirmed the trial court's judgment denying Birmingham Water Works' petition. The Plaintiff is a public utility based in Jefferson County, Alabama, serving customers in surrounding areas, including Shelby County, established under Alabama law. The Waterworks Board of Birmingham is not considered a state subdivision, and water supply is deemed a municipal function, making the board an agency of the city. Shelby County, a political subdivision, oversees public road maintenance and was involved in a dispute regarding the Plaintiff's application for an excavation permit to install a water main on Shelby County Highway 41. This highway is exclusively within Shelby County and is two-lane. Alabama law grants county commissions legislative and executive powers to manage public road systems and their usage. A land developer near Highway 41 requires the Plaintiff’s services for a large subdivision. Shelby County also operates a significant water system for its residents and is experiencing rapid growth. Before the Plaintiff's permit application, Shelby County obtained its own permit for the highway and began installing a water line. Concerns arose from Shelby County about having two contractors working in the same right-of-way, prompting it to consider the best use of limited resources and the implications for public interest. The Plaintiff asserts it has a clear legal right to the excavation permit, claiming an imperative duty on the Defendants to grant it. However, while the Plaintiff has eminent domain powers, it does not hold an absolute right to construct along the county's right-of-way. The court concluded that the Defendants did not arbitrarily deny the permit but acted out of legitimate public concern, ultimately determining the Plaintiff failed to demonstrate a clear legal right for a writ of mandamus. Consequently, the court denied the Plaintiff's petition for the writ. On January 27, 1993, Judge Crowson amended an order to tax costs in favor of Birmingham Water Works, which subsequently appealed on February 8, 1993. The appeal focused on whether the trial court erred in denying a writ of mandamus. To qualify for mandamus, a petitioner must demonstrate: 1) a clear legal right to the order sought; 2) an imperative duty on the respondent's part that is being refused; 3) the absence of another adequate remedy; and 4) proper jurisdiction. The court affirmed the denial of the writ for several reasons: 1. Birmingham Water Works failed to establish a clear legal right to install water lines within the right-of-way of a Shelby County road, as the authority to regulate public roads resides with Shelby County. 2. There was no imperative duty on Shelby County to grant the excavation permit; the statute cited by Birmingham Water Works applied only to contracts and not to permit applications. 3. Birmingham Water Works did not exhaust its administrative remedies, as the Shelby County Commission had not denied the permit request but merely failed to act on it. The utility also retained the option of eminent domain as an adequate remedy. 4. The court found that Birmingham Water Works did not properly invoke jurisdiction since mandamus is not suitable for reviewing discretionary decisions by a county commission unless misconduct is shown. The trial findings indicated that the county commission had legitimate concerns regarding the permit. Consequently, the trial court's judgment to deny the writ of mandamus was upheld.