Photo by Erica Techo.
Buildings in the Vestavia Reserve apartment complex border the backyards of several homes on Old Looney Mill Road. Some homeowners are suing over the proximity and size of the apartment buildings, which they say are different from initial plans for the property.
Daniel Corporation, NSH Corporation and the City of Vestavia hills, as defendants in a lawsuit filed by nine Vestavia Hills residents, will get an answer on their motion to dismiss the complaint at a June hearing.
On May 3 and 4, attorneys for the defendants filed motions with the court to dismiss the case, and attorney for the City of Vestavia Hills Owen James Bentley III requested an oral argument in support of the motion.
On Thursday, May 25, the office of Circuit Court Judge Elisabeth French ordered the hearing to take place on Thursday, June 22 at 1:30 p.m.
In the motion to dismiss, the city and other defendants argue that counts one through five of the complaint should be dismissed because "a local government entity is not subject to tort liability for an alleged failure to enforce local ordinances," citing the Payne v Shelby County Commission case of 2008. The city also claims it is entitled to "substantive immunity" in the causes of action alleged in those same counts, as well as counts 10 and 11.
Counts one, two and five deal with what the plaintiffs claim is Daniel Corporation's failure to comply with the development agreement – such as not including a 35-foot landscape buffer to the rear of the property – and NSH Corp. and the city's failure to prevent such breaches. Counts three and four argue that the development has caused significant nuisance to the plaintiffs, and that the city did nothing to stop it. Finally, counts 10 and 11 argue that the plaintiffs are entitled to reformation of their deeds and rescission compensation for their homes.
Or, the dismissal document argues, a municipality is not liable if negligence is the sole basis of a complaint, and therefore the case should be dismissed.
The defendants' motion also argues that the plaintiffs did not plead fraud sufficiently against the city.
The motion specifically refers to the Mazes and Comperes – property owners on Old Looney Mill Road and key plaintiffs in the case – saying that the allegations "are due to be dismissed for their failure to provide a timely notice of claim to the City" about their grievances.
Erica Techo
The document concludes by arguing that the claims are also invalid due to the statute of limitations.
The defendants also filed motions to stay the discovery process currently in progress, but those motions were denied on May 24.
The plaintiffs had issued a response to the motions to stay, arguing not only that the stay should not be granted, but giving arguments as to why the dismissal should not be granted. These arguments included addressing some of the items in the motion, such as the plaintiffs not offering certain pleas.
The response document reads: "To support their motions to dismiss, it would be Defendants' burden to show the Court that, beyond any possible doubt and viewing all allegations as true in Plaintiffs' favor, the Plaintiffs cannot possibly prove even a single claim. Defendants have not done so. Rather, all Defendants have offered are bald, unsupported, unsubstantiated and conclusory statements that the complaint should be dismissed."
The lawsuit, filed on March 24, claims that Daniel Corp. violated the terms of its development agreement for the mixed-use plat at Patchwork Farms, and claims that NSH Corp. and the City did not adequately ensure that the demands of the agreement were met. Chief complaints include the change in size and scope of the mixed-use project–going from a two-story development to a four-story apartment complex–and the removal and failure to replace a landscaping buffer on the property's edge.
City Manager Jeff Downes said after the lawsuit was filed that the city denies the allegations and would "vigorously defend" the case. John Knutsson with Daniel Corporation said that the development was done in accordance with the ordinances, and that all projects were permitted.
