Last week, the city of Mobile succeeded in preventing a jury trial in a lawsuit accusing the Mobile Historic Development Commission of selectively targeting business owners with violations for years while routinely ignoring violations committed by its own staff and board members.
In 2012, the city initially brought a lawsuit against Walker Brothers Investments LLC after it was determined the brothers’ landmark property at 470 Dauphin St. was in violation of city ordinances governing properties in the downtown historic district. Located on the property is an 11 bay, four-unit building known as the Tobin Building. Constructed in 1854, the city maintains the building is one of Mobile’s finest existing commercial storefronts from the time of its construction.
“Once found across downtown Mobile, these buildings offered ground floor retail space and upper story living quarters,” the city wrote in its complaint. “The Tobin Building is one of the most important historic buildings in downtown Mobile.”
Since the lawsuit was filed, though, Mayor Sandy Stimpson has made significant changes to Mobile’s planning and business development operations. In 2015, a departmental shakeup eliminated two upper-level positions in the MHDC. Former Executive Director Devereaux Bemis was also demoted as a result.
While the current administration no longer has any interest in the primary claim of the lawsuit — that the Walker brothers failed to “mothball” the building according to plan — city attorneys have continued to fight the defendants’ “equal opportunity” counterclaim in court.
Just before a jury trial in the case was scheduled to start in Mobile County Circuit Court last month, the city filed a motion for summary judgment asking Judge Robert H. Smith to to dismiss the Walker brothers’ claim.
Last Friday, Smith granted the city’s motion, which prevented a jury trial and likely set the stage for an appeal that could go all the way to the Alabama Supreme Court.
Depositions, case evidence
According to court records, James and Woodrow Walker, who notably own the OK Bicycle Shop, have also owned the historic but derelict Tobin Building since 1992. Lagniappe reached out to James Walker to comment on the lawsuit but has yet to receive a response.
In a 2014 deposition, Walker stated he and his brother received threats of prosecution from MHDC staff and then repeated threats of incarceration from former municipal judge John Coleman. Coleman was a former lobbyist for the city as well as a past president of the MHDC, and Walker said he believed Coleman was serving in the role during the “26 to 28 times” he was ordered to appear in his courtroom over compliance issues with the Tobin Building.
At the end of one of those hearings, Waker claims Coleman instructed him that a real estate agent was “out in the hallway with a purchase contract” to buy the property.
Some of Walker’s claims of “selective enforcement” were corroborated during a separate deposition of Nicholas Holmes III, a local architect and member of the Architectural Review Board.
Under oath, Holmes said the board had “abused its authority” and approached the Walker Brothers’ property in “a much more strict manner” than others. He also said the commission’s prosecution tactics for violations could vary depending who had committed them.
“Some people got a slap on the wrist, but with other people, it was much more serious the way they approached it,” Holmes testified. “It was holding somebody, whoever it is, to one standard while other people are allowed to have another standard. And that is something that … there was a great deal of that at this particular time.”
At the time, it was of such concern that Holmes wrote former Mayor Sam Jones and the Mobile City Council about a case the city was prepared to litigate based on the recommendations of the MHDC and the Architectural Review Board, even though former director Bemis and one of his “business partners” allegedly had similar violations on their own historic downtown properties.
In that letter, Holmes suggested there were two sets of standards being applied: “those for the public and those that apply to the preservation clique.” At the time, then-City Councilwoman Connie Hudson responded in a letter to Jones calling the assertions “disturbing.”
“Mr. Holmes specifically mentions what he terms as ‘unequal enforcement’ in reference to improvements of historic district property owned by the city’s MHDC director,” Hudson wrote. “My office has received other, less formalized complaints in the past of similar allegations of unequal enforcement of historic district standards.”
Summary judgment hearing
Had the Walker brothers’ case gone to trial, a jury would have been asked to decide if the city failed to provide “equal protection” under the law through selective enforcement of its municipal ordinances.
Last Friday, though, Assistant City Attorney Erich Bergdolt successfully argued that the Walker brothers cannot bring an equal protection claim in court because they are not a member of a “subject class” — a group historically “subjected to purposeful, unequal treatment.”
In March, Alabama’s Supreme Court ruled against KC Economic Development in a lawsuit concluding an equal protection clause “must not merely allege disparity in enforcement, but also show intentional discrimination based on race, religion or other arbitrary classifications.”
“They have pointed out numerous examples, if they are to be believed, that there has been some selective enforcement against the Walker brothers, but they do not fall in any of the protected classes,” Bergdolt said.
But defense attorney Mark Ryan said there hasn’t been any dispute about whether his clients were treated unfairly and went on to call the city’s acknowledgment of it a “1,000-pound gorilla in the courtroom.”
“Do these gentlemen sitting right here have less rights in a courtroom because they can’t say, ‘Well, they did this to us because we’re male’ or ‘because we’re Catholic?’” Ryan asked. “I hope that’s not the case, because otherwise, the argument is: Unless you’re in a very narrow window of a historically select minority, gender or religion, you do not enjoy the equal protections of the U.S. Constitution.”
Ryan argued that because his clients were treated differently than property owners in the “preservation clique,” the city was effectively “compartmentalizing them into an arbitrary classification.” To the contrary, Bergdolt maintained that the “non-clique class of people in historic development” was likely not a disenfranchised class.
While Judge Smith ruled the definition of “suspect class” was “pretty well understood by anyone who deals in the area of civil rights law,” he offered little reasoning for denying the Walkers’ two-year quest for a jury trial.
“It’s a very interesting question, but it’s one I think needs to be answered by the Supreme Court,” he said. “We’ll let y’all proceed from there.”
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