AlaFile E-Notice

31-CV-2020-900726.00
Judge: GEORGE C. DAY, JR.
To: KNOWLES CHRISTINA LEE DAS
[email protected]

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF ETOWAH COUNTY, ALABAMA

DYNAMIC COLLISION, LLC V. GADSDEN AIRPORT AUTHORITY ET AL

31-CV-2020-900726.00

The following matter was FILED on 11/17/2021 5:29:35 PM

Notice Date: 11/17/2021 5:29:35 PM

CASSANDRA JOHNSON
CIRCUIT COURT CLERK
ETOWAH COUNTY, ALABAMA
801 FORREST AVENUE
SUITE 202
GADSDEN, AL, 35901

256-549-2150
 DOCUMENT 843
ELECTRONICALLY FILED
11/17/2021 5:29 PM
31-CV-2020-900726.00
CIRCUIT COURT OF
ETOWAH COUNTY, ALABAMA
CASSANDRA JOHNSON, CLERK
IN THE CIRCUIT COURT OF ETOWAH COUNTY, ALABAMA

DYNAMIC COLLISION, LLC, )

ZLA SOLUTIONS, INC., )
BUTLER PROPERTIES, LLC, )
GREER CLARK ET AL, )
Plaintiffs, )
)
V. ) Case No.: CV-2020-900726.00
)
GADSDEN AIRPORT AUTHORITY, )
CITY OF GADSDEN, ALABAMA, )
CITY OF GADSDEN, ALABAMA, )
GADSDEN AIRPORT AUTHORITY ET
)
AL,
Defendants. )

ORDER GRANTING PLAINTIFFS’ PETITION FOR

TEMPORARY RESTRAINING ORDER AND SETTING
HEARING ON PRELIMINARY INJUNCTION

This case came before the Court on the Plaintiffs’ Petition for Temporary Restraining Order,
Preliminary Injunction and Permanent Injunction. Upon due consideration thereof, it is found
and ordered as follows:

1. The Plaintiffs’ Petition states that a meeting of the Gadsden Airport Authority [“GAA”]
has been noticed to take place on Friday, November 19, 2021, at which it is averred that a
vote is to take place to approve the sale or lease of the subject airport property [“the
Property”] to Pilgrim’s Pride for operation of a rendering plant. The Petition does not
seek to prevent such vote, but rather, seeks entry of an Order that enjoins GAA and
Pilgrim’s Pride from taking certain action contrary to the law with respect to the
Property.

2. The Plaintiffs note that the Property was part of a larger tract conveyed by the United
States of America to the City of Gadsden by deed dated September 2, 1947, recorded at
Book 343, Page 373, Probate Office, Etowah County, Alabama. That deed, a copy of
which is attached to the Plaintiffs’ Petition, contains the following provision:

By the acceptance of this deed or any rights hereunder, the said party of the
Second Part [the City of Gadsden], for itself, its successors and assigns agrees
that transfer of the property transferred by this instrument, is accepted subject to
the following restrictions set forth in sub-paragraphs (1) and (2) of this paragraph,
which shall run with the land, imposed pursuant to the authority of Article 4,
Section 3, Clause 2 of the Constitution of the United States of America, the
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Surplus Property Act of 1944, as amended, Executive Order 9689 and applicable
rules, regulations and orders:

(1) That all of the property transferred hereby, hereafter in this instrument called
the “Airport”, shall be used for public airport purposes, and only for such
purposes [emphasis added],

As used herein, “public airport purposes” shall be deemed to exclude use of

the structures conveyed hereby, or any portion hereof, for manufacturing or
industrial purposes.

****
It cannot reasonably be argued that rendering plant operations fall within the scope of
“public airport purposes.” If any doubt were to exist, it is eliminated by the provision
which specifically defines it not to include manufacturing or industrial purposes.
Accordingly, such operations are prohibited by the unambiguous restriction contained in
the deed. The Plaintiffs contend that to the extent that the GAA, by sale or lease of the
Property, intends to cause or allow the Property to be devoted to a clearly prohibited use,
such sale or lease is due to be enjoined by the Court.

3. By Warranty Deed dated June 9, 2004, recorded as Document Number: D-2004-3722,

Probate Office, Etowah County, Alabama, the airport property was conveyed by the City
of Gadsden to the GAA. The following restriction was included in the deed:

Subject to all easements, conditions and restrictions of record, including, but not
limited to all conditions and restrictions in deeds from the United States of
America to the City of Gadsden.

Such provision obviously had the effect of imposing upon the airport property under
GAA ownership, the same restriction to which it was subject since it was conveyed to the
City in 1947. Whether owned by the City or by the GAA, the Property may be used for
public airport purposes, and only for such purposes . . . and specifically not for
manufacturing or industrial purposes.

4. The Plaintiffs also contend that there are regulatory or contractual provisions which
forbid the GAA from entering into any contract to convey or lease the Property for non-
aeronautical purposes without prior approval from the Federal Aviation Administration
(“FAA”). They note that despite the conveyance by the City to the GAA, as described
above, the City of Gadsden has remained a “Sponsor” of the Northeast Alabama
Regional Airport. They maintain that as such Sponsor, the City has received federal
funds and grants from the United States of America, acting through the FAA. Pursuant to
the Grant Agreement, the City has adopted and ratified certain FAA Grant Assurances
dated March, 2014, which include the commitment that “ . . . it will not sell, lease,
encumber, or otherwise transfer or dispose of any part of its title or other interests in the
 DOCUMENT 843

property without approval by the Secretary.”

The Plaintiffs further note that on March 16, 2021, the City and the GAA entered into a
Co-Sponsorship Agreement which provided that both committed “to comply with Grant
Assurances with respect to the Authority Property.” Plaintiffs’ counsel attached to the
Petition, an email confirmation from the FAA that it would have to approve any non-
aeronautical use of the Property “before a lease is signed.” The Plaintiffs argue that
GAA’s entry into a sale/long term lease of the Property without FAA approval would
result in a finding of non-compliance, and subject the City and the GAA to revocation of
public funding from FAA or even potentially result in the closure of the Northeast
Alabama Regional Airport.

5. The Plaintiffs argue that while GAA may well give assurances to the Court that it would
not attempt to sell or lease the Property without prior FAA approval, its history has been
one of transferring airport property without first obtaining FAA consent. They note that
on October 2, 2020, the City received a Noncompliance Letter from the FAA concerning
the fact that it previously had conveyed the airport property to the GAA without advance
consent or permission from the FAA. The concern articulated by the Plaintiffs, in light of
that history, is that the GAA, upon the anticipated vote on November 19, 2021, will
immediately lease or deed the Property to Pilgrim’s Pride without prior FAA consent,
causing irreparable damage to the Plaintiffs.

6. The Plaintiffs also allege in their Petition that Pilgrim’s Pride has mischaracterized the
significance of the 7460 Determination Letter issued by the FAA on or about October 21,
2021. They point out that Pilgrim’s Pride submitted an FAA Form 7460 (Notice of
Proposed Construction) to build at the airport. The determination received in response,
that FAA does not object to the construction described in the Pilgrim’s Pride proposal, is
a finding that the proposed height and layout of the structure (buildings, smoke stacks,
etc.) would not interfere with the flight and approach zones. It obviously does not
constitute approval for the proposed use as a rendering plant, for the second page of the
Determination Letter contains the following:

The proposed construction is located on airport-owned land that is currently

obligated for aeronautical purposes. Additionally, the FAA notified the sponsors
in January, 2021 of concerns that the proposed plant is a potential wildlife
attractant and appears to be an incompatible development near an airport
[emphasis added].

That being said, the FAA conducted aeronautical studies for the proposal. This
determination does not preempt the airport sponsor’s federal obligations
[emphasis added] and does not constitute FAA approval for the physical
development involved in the proposal. It is a determination with respect to the
safe and efficient use of navigable airspace by aircraft.
 DOCUMENT 843

The Plaintiffs allege that notwithstanding the narrow scope of the Determination Letter,
Pilgrim’s Pride has treated it as an approval of the proposed rendering plant by FAA, and
has announced that it is “ready and able” to bring the rendering plant to the airport. It
was shortly thereafter that the meeting of the GAA was scheduled. Plaintiffs’ counsel
represents having sought confirmation that a vote would take place at the meeting, in
response to which GAA’s attorney would only confirm that the meeting had been
scheduled.

7. One would think that the pendency of the trial of this case the week of January 3, 2022,
only some month and a half from now, would provide sufficient assurance of no adverse
effects on the Plaintiffs without the necessity of entry of this Order; however, it is
theoretically possible that absent entry of this Order, if awarded a lease or purchase of the
Property by the GAA, Pilgrim’s Pride could break ground for its long-desired rendering
plant, and take its chances that the Court would not find that operation of a rendering
plant at such site would constitute a nuisance. This Court has no idea how quickly
progress can be made in the early stages of construction of a rendering plant. What the
Court does know, however, based on evidence previously received in this case, is that
detailed plans for the proposed facility have been in place for a long period of time, and
that at least as far back as April 12, 2021, a solicitation of construction bids for the
project (indicating a start date of August 26, 2021) was placed online.

The Court also is mindful that as a practical matter, Pilgrim Pride would gain an
additional argument (albeit unrelated to the merits of the nuisance claim) once placed in a
position to break ground for construction. Months ago, it argued that it had invested some
$2 million in engineering costs relative to acquisition of Air Permits and location of a
rendering plant at the subject property. It contended that if it lost this lawsuit, with
issuance of a permanent injunction against construction of a rendering plant at the
Property, it would lose that investment. Once Pilgrim’s Pride breaks ground, its financial
investment in the Property presumably would climb quickly and substantially.
Consequently, it no doubt would add to its legal arsenal, an argument as to the alleged
inequity of any order by this Court to reverse course by removal of any improvements
undertaken. The Court’s response by Order of July 19, 2021, was that given the fact that
Pilgrim’s Pride knew that risk of loss accompanied its expenditures, the fact and amount
thereof was of no consequence to this Court. That remains the Court’s position with
respect to any additional expenditures made by Pilgrim’s Pride until this case is fully
litigated, and a final judgment is entered. Nonetheless, it would appear in the best
interest of Pilgrim’s Pride, as well as that of the Plaintiffs, that there be no further such
investment in the Property until this matter is fully and finally adjudicated.

8. One also would think that the Preliminary Injunction previously entered by the Court on
June 7, 2021, would provide sufficient assurance of no adverse effects on the Plaintiffs
without the necessity of entry of this Order. That Order restrained and enjoined the City
from making or participating in any interpretation under the City’s Zoning Ordinance
that rendering plant operations were permitted in an I-1 Light Industry District (the
current zoning of the Property), and consequently, from issuing a building permit for
 DOCUMENT 843

rendering plant operations in such District. As noted in the Court’s Order referenced
above, however, at certain hearings in this case before the Court, corporate counsel for
Pilgrim’s Pride announced that if it acquired the Property for its desired rendering plant,
it would commence proceedings to have it zoned to I-2. At a hearing on such rezoning
application, public input would be received before a decision on the application was
made. As noted in the Court’s earlier Order, however, as well as in the Plaintiff’s
Petition, the evidence in this case indicates that Pilgrim’s Pride’s leasing, rather, than
purchasing the Property has been discussed as an option. If GAA were to enter into a
lease with Pilgrim’s Pride, GAA would remain the owner of the Property. Pilgrim’s Pride
then could well proceed under the terms of a long-term lease arrangement with GAA to
commence construction, all the while technically remaining true to its assurance to the
Court that if it “acquired” the property, it would commence proceedings to have it
rezoned to I-2. It could simply and dismissively explain that it did not acquire the
property, it leased it. The question that remains is how Pilgrim’s Pride could be allowed
to avoid the legal necessity of rezoning, given the Preliminary Injunction previously
entered by the Court.

9. With respect to the zoning issue, the City previously contended at the Motion to Dismiss
stage (and the Defendants still contend) that the GAA, as an airport authority, was
exempt by Alabama statute from the City’s Zoning Ordinance (although the Property is
included in the City's Zoning Maps). An immediate concern upon the approval by the
GAA of a lease arrangement with Pilgrim’s Pride would be that on the basis of that legal
position, Pilgrim’s Pride could well see itself as free to proceed with construction upon
signing the lease, because GAA nonetheless remains the holder of title to the property.
The statute in question, Section 4-3-60, Alabama Code (1975), as amended, serves to
exempt the authority itself from zoning ordinances with respect to its own use of
authority property, just as it exempts airport authorities themselves from competitive bid
laws. There is no fair and reasonable interpretation of the statute, however, under which
the zoning exemption given the airport authority is somehow extended to a private
industrial concern with no relationship to the authority or even to aeronautical uses, just
because it is proposed to be situated on airport property. The concern, however, of
Pilgrim’s Pride’s proceeding with construction immediately upon signing a lease with the
GAA, without first seeking appropriate rezoning, is one which constitutes basis for entry
of this Order.

10. The Court finds that the facts contained in the their Petition clearly justify the Plaintiffs’
apprehension about the threat of irreparable injury. The GAA meeting is to be held in
two (2) days. The totality of the foregoing demonstrates that entry of this Order is
necessary to prevent immediate and irreparable injury, loss, or damage before the
Defendants, through their attorneys, can be heard in opposition. Accordingly, the
Gadsden Airport Authority and Pilgrim’s Pride, their respective officers, agents,
servants, employees, and attorneys, and all persons in active concert or
participation with them who receive actual notice of this Order by personal service
 DOCUMENT 843

or otherwise, are hereby RESTRAINED AND ENJOINED from the following:

A. Signing, executing or taking any other action to enter into any agreement to sell,
lease or otherwise allow the use of the GAA property (located at 3900 Steele
Station Road, Gadsden, Alabama) for the purposes of construction and/or
operation of a rendering plant as being in violation of governing deed
restrictions; and

B. Signing, executing or taking any other action to enter into an agreement to

contract to convey, deed, lease or otherwise allow the use of the GAA property
(located at 3900 Steele Station Road, Gadsden, Alabama) for the purposes of
construction and/or operation of a rendering plant without receiving full
approval from the Federal Aviation Administration.

Except as provided above, this Order does not restrain or limit the Gadsden Airport
Authority in any way from voting and otherwise conducting business at its meetings
scheduled on November 19, 2021 or otherwise.

11. Rule 65(c) of the Alabama Rules of Civil Procedure provides that a Temporary
Restraining Order shall not issue except upon the giving of security by the Plaintiffs, as
the parties seeking the injunction, in such sum as the court deems proper, for the payment
of such costs, damages, and reasonable attorney fees as may be incurred or suffered by
any party who is found to have been wrongfully enjoined or restrained. Accordingly, this
Temporary Restraining Order shall become legally effective upon the posting of a bond
(cash, property, or surety) in the amount of $5,000.00 with the Circuit Clerk of Etowah
County.

12. Hearing is set on the Plaintiff’s Petition for Preliminary Injunction on Wednesday,
December 1, 2021, at 9:00 o’clock a.m. While Rule 65(b), Alabama Rules of Civil
Procedure, contemplates that such hearing following entry of a Temporary Restraining
Order such as this one be held within ten (10) day, yet Rule 6(a) of the Rules provides
that when such time prescribed is less than eleven (11) days, intermediate Saturdays,
Sundays, and legal holidays are excluded in the computation. Excluding such weekend
days and Thanksgiving as provided, this setting is within ten (10) days after the date of
entry of this Order. The Court is required by governing law to set this hearing; however,
GAA and Pilgrim’s Pride may, if they so choose, file a waiver of such hearing, in which
event this Order will remain in effect without the necessity of hearing through the date of
entry of Judgment after the trial to be held the week of January 3, 2022.

DONE this 17th day of November, 2021.

/s/ GEORGE C. DAY, JR.

CIRCUIT JUDGE
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