ELECTRONICALLY FILED 5/25/2012 11:22 AM CV-2012-900691.00 CIRCUIT COURT OF MADISON COUNTY, ALABAMA JANE C.

SMITH, CLERK

IN THE CIRCUIT COURT FOR MADISON COUNTY, ALABAMA ECHOLS PROPERTIES, LLC a/k/a ECHOLS, LLC, Plaintiff, v. HUNTSVILLE HISTORIC PRESERVATION COMMISSION, CITY OF HUNTSVILLE, JAN WILLIAMS, MARIE BOSTICK, DAVID ELY, JUDY PERSZYK, RANDY CUNNINGHAM and RALPH ALLEN, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO: _______________________

COMPLAINT COMES NOW Plaintiff ECHOLS PROPERTIES, LLC a/k/a ECHOLS, LLC (Echols) and for its Complaint against Defendants HUNTSVILLE HISTORIC PRESERVATION COMMISSION (HHPC), CITY OF HUNTSVILLE (the City), JUDY PERSZYK (Perszyk), JAN WILLIAMS (Williams), DAVID ELY (Ely), MARIE BOSTICK (Bostick), RANDY CUNNINGHAM (Cunningham) and RALPH ALLEN (Allen, and collectively with HHPC, the City, Perszyk, Williams, Ely, Bostick and Cunningham, Defendants), states as follows: I. Parties 1. Echols is an Alabama limited liability company with its principal place of

business located at 401 Meridian Street, Suite 300, Huntsville, Alabama 35801. 2. HHPC is a historic preservation commission organized pursuant to Section

11-68-1, et seq. of the Code of Alabama. 3.

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The City is a municipal corporation of the State of Alabama.

4.

Perszyk is an individual over the age of nineteen (19) years and a resident of

Madison County, Alabama. Perszyk is sued in both her official and individual capacity. 5. Williams is an individual over the age of nineteen (19) years and a resident of

Madison County, Alabama. Williams is sued in both his official and individual capacity. 6. Ely is an individual over the age of nineteen (19) years and a resident of

Madison County, Alabama. Ely is sued in both his official and individual capacity. 7. Bostick is an individual over the age of nineteen (19) years and a resident of

Madison County, Alabama. Bostick is sued in both her official and individual capacity. 8. Cunningham is an individual over the age of nineteen (19) years and a

resident of Madison County, Alabama. Cunningham is sued in both his official and individual capacity. 9. Allen is an individual over the age of nineteen (19) years and a resident of

Madison County, Alabama. II. Jurisdiction and Venue 10. This Court has subject matter jurisdiction pursuant to Sections 12-11-30, 12-

11-31 and 11-68-10 of the Code of Alabama. 11. Alabama. Venue is proper pursuant to Sections 6-3-2 and 6-3-11 of the Code of

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III. Facts Common To All Counts A. HHPCs Statutory Authority, Regulations and Design Guidelines 12. On September 17, 1971, the Alabama Legislature passed Act No. 1307, H.

2095, authorizing municipalities having a population between 135,000 and 185,000 to create governing bodies to protect the historic character of such municipalities, including, but not limited to, defining the boundaries of historic districts and enacting procedures and regulations to promote the preservation of such districts (the 1971 Act). 13. Based on the authority granted in the 1971 Act, the City, pursuant to Section Huntsville,

2-1541 of the Huntsville, Alabama Code of Ordinances, established HHPC.

Alabama Code of Ordinances 2-1541; Code 1982 10-41. HHPC was (and still is) composed of nine members, including one member of the city council designated by it, the manager of planning and the manager of inspection. Id. at 2-1542(a); Code 1982 10-42. 14. On May 4, 1989, the Alabama Legislature passed Act No. 89-536, S. 267 of

the 1989 Regular Session of the Legislature (the 1989 Act), which amended the 1971 Act and continued to provide for the establishment of historic preservation commissions. The 1989 Act was codified at Sections 11-68-1 through 11-68-15 of the Code of Alabama. 15. The 1989 Act provides that a historic preservation commission can not permit

more than one-fifth of its members to be public officials. Ala. Code 11-68-3(a). 16. The 1989 Act authorizes a historic preservation commission to adopt general

design standards to apply in considering the granting or denial of certificates of appropriateness and further mandates that such commission shall approve an application and issue a certification of appropriateness if it finds that the proposed change, erection, or demolition 3

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conforms to the general design standards established by the commission, is compatible with the character of the historic property or historic district, and does not detract from the value of the historic property or historic district. Ala. Code 11-68-11(a) (emphasis added). 17. The 1989 Act requires that if a commission rejects an application, it must

specifically state the reasons in writing. Ala. Code 11-68-11(c). 18. Pursuant to the 1971 Act and the 1989 Act, HHPC adopted the Regulations

of the Huntsville Historic Preservation Commission (the Regulations) on June 13, 2005. The Regulations provide that the removal or demolition of any building or the construction of a new building, structure or appurtenance in the Twickenham Historic District requires a certificate of appropriateness from HHPC. Regulations at I. A. 19. In order to obtain a certificate of appropriateness to demolish a building,

HHPCs Regulations require an applicant to submit details regarding the structure to be demolished and the proposed new structure to be erected in its place. Id. at I. E. 20. HHPCs Regulations further provide that an applicant can seek preliminary

review and approval for a proposed structure. Id. at I. C. 21. In determining whether to issue a certificate of appropriateness with regard to

a proposed new structure, HHPCs Regulations state that such building will not, in itself or by reason of its location on the site, materially impair the architectural character or historic value of buildings on adjacent sites or in the immediate vicinity. This does not mean that new

construction must imitate the style and details of an existing structure, only that it be in harmony with the existing structure in terms of scale, proportions, massing, orientation, colors and materials. Contemporary styles which are, in the judgment of [HHPC], harmonious with their 4

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surroundings will be approved. Id. at II. D. 2. Moreover, proposed new buildings are not to be injurious to the general visual character of the historic district in which it is to be located. Id. at II. D. 3. 22. With respect to a decision to deny an application, HHPCs Regulations

require it to issue a written order with its findings. The Regulations expressly require the written order to provide HHPCs: (1) decision; (2) reasons therefore; and (3) recommendations for necessary changes. Id. at II. F. 23. In addition to the Regulations, HHPC has adopted and/or follows published

Design Guidelines. HHPCs Design Guidelines are vague, ambiguous, overbroad, and, in many instances, contradict themselves and the Regulations. For example, despite the

Regulations mandate that the proposed new building does not have to imitate the style and details of an existing structure, id. at II. D. 2 (emphasis added), the Design Guidelines state that [a]rchitectural ornamentation and details for new buildings and additions within the historic district should be based on existing historic precedents. Design Guidelines at p. 3-19 (emphasis added). The Design Guidelines subsequently change course again, stating that the construction of new buildings should not seek to replicate historic designs. Id. at p. 3-30 (emphasis added). B. Defendants Actions and Conduct with regard to Echols 24. On September 21, 2010, Echols purchased the property located at 415 Echols

Avenue in Huntsville, Alabama (the Property). At the time, the Property consisted of a two story single-family residence constructed in 1948 (the Lary House) and lots numbered 19-25.

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25.

On October 31, 2011, Echols submitted an application (the 2011

Application) to HHPC seeking a certificate of appropriateness to: (1) demolish the Lary House; and (2) allow a new two story single-family residence to be constructed at 415 Echols Avenue (the Echols House). 26. The 2011 Application fully complied with HHPCs Design Guidelines,

Regulations and other requirements, including, but not limited to, the requirement that Echols submit details regarding the proposed replacement structurei.e. the Echols House. In its 2011 Application, Echols did not merely submit schematic plans for preliminary approval of the Echols House. Rather, Echols sought complete or final approval for the Echols House,

submitting, among other things, detailed architectural drawings, elevations, renderings, photographs, surveys, site plans, paint samples and brick samples. 27. HHPC heard the 2011 Application on November 14, 2011 (the 2011

Hearing), when it was presented and extensively discussed by noted architect, Jim Barganier (Barganier). Barganier showed HHPC numerous large scale drawings and plans of the Echols House. 28. At the 2011 Hearing, HHPC approved: (1) the demolition of the Lary House;

and (2) the Echols House. 29. On November 15, 16 and 17, Echols tried to obtain a demolition permit to

demolish the Lary House. Each day, Cunningham, acting individually, on behalf of HHPC and on behalf of the City, refused to issue it. Upon information and belief, Cunningham was attempting to delay the issuance of the demolition permit so a legal action precluding the demolition of the Lary House could be filed. 6

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30.

Notwithstanding the vote, Cunningham and HHPC likewise delayed issuing a

written certificate of appropriateness. 31. Finally, at approximately 4:00 p.m. on November 18, 2011, HHPC issued a

written certificate of appropriateness approving the 2011 Application, the demolition of the Lary House and the construction of the Echols House (the 2011 Certificate of Appropriateness). 32. Echols secured a demolition permit and demolished the Lary House on

November 19, 2011. 33. In April 2012, Echols attempted to obtain a building permit from

Cunningham and the City to begin construction of the Echols House. Acting individually and on behalf of HHPC and the City, Cunningham denied the request, stating that HHPC had merely given preliminary and/or conceptual approval for construction of the Echols House and Echols was required to apply and obtain a second certificate of appropriateness from HHPC to begin construction. Cunningham concurrently informed Echolss representative that Propst should not expect to get what he wants simply because he has a lot of money. 34. Although Echols had submitted the required materials and sought complete

and final approval incident to the 2011 Application, on May 1, 2012, Echols submitted a second application to HHPC (the 2012 Application), seeking a certificate of appropriateness to allow construction of the Echols House to begin. 35. The 2012 Application and the proposed Echols House fully complied with all

applicable HHPCs Design Guidelines, Regulations and other requirements. As part of the 2012 Application, Echols again submitted, among other things, detailed architectural drawings,

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elevations, renderings, photographs, surveys, site plans, paint samples and brick samples for the Echols House. 36. The Echols House, including its design and scale, did not change between the

2011 Application and the 2012 Application. Rather, the 2012 Application was identical, with the exception of minor changes in the caps for the front columns and a two and a half (2 1/2) foot reduction in the overall height. 37. HHPC heard the 2012 Application on May 15, 2012 (the 2012 Hearing),

which was again presented by Barganier. He reiterated to HHPC that the design and scale of the Echols House had not changed from what was approved by HHPC at the 2011 Hearing pursuant to the 2011 Application. Barganier demonstrated this to HHPC by presenting large scale

drawings from the 2011 Hearing and comparing these to drawings submitted with the 2012 Application. 38. At the inception of HHPCs discussion of Echolss 2012 Application,

attorney and Chairman of HHPC, Jack Burwell (Burwell), stated that the Echols House, including its design and scale, had been previously approved in connection with the 2011 Application at the 2011 Hearing. Burwell, who actually voted to deny Echolss 2011

Application, advised HHPC that it did not have the ability to revisit its prior approval of the Echols House under HHPCs Regulations because HHPC had given preliminary and/or conceptual approval. Burwell further acknowledged that Echols expressly relied on HHPCs prior approval of the Echols House when it demolished the Lary House and incurred the additional costs and expenses of preparing to construct the Echols House.

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39.

Burwell advised HHPC that denying the 2012 Application would expose

HHPC and the City to liability since HHPC approved the Echols House incident to the 2011 Application. 40. HHPC Board Member Perszyk stated that she had been opposed to the

demolition of the Lary House and therefore intended to vote against the 2012 Application. In response to Burwells advice regarding applicable law and HHPCs prior approval of the 2011 Application, Perszyk stated that no one can tell me how to vote. According to Perszyk, HHPCs prior approval of the Echols House was meaningless and she intended to deny the 2012 Application simply because she had opposed the 2011 Application and the demolition of the Lary House. 41. At the 2012 Hearing, Allen, a consultant to HHPC, made numerous false

statements to HHPC regarding the 2012 Application, the Echols House and HHPCs Design Guidelines, Regulations and/or requirements. These false statements were made in furtherance of a conspiracy to prevent Echols from building the Echols House and otherwise induce members of HHPC to deny the 2012 Application. Allens false statements to HHPC included, but were not limited to: the street height of the Echols House is approximately forty-four (44) feet; very few structures in the surrounding blocks are of the scale of the Echols House; the design of the Echols House is inappropriate for the district; and/or the 2012 Application did not comply with HHPCs Design Guidelines, Regulations and requirements. These false statements were directly refuted by Echols, Barganier and/or the evidence presented at the 2012 Hearing. 42. In response to Allens false statements, Burwell advised HHPC that Allens

findings and recommendations violated forty (40) years of HHPCs prior decisions. 9

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43.

Perszyk, Williams, Ely, Cunningham and/or Bostick stated that the two-story

height of the Echols House was objectionable under HHPCs Regulations and/or Design Guidelines. This was directly contradicted because: (a) the Regulations and/or Design

Guidelines contain no height restriction; (b) the Lary House was a two-story structure; (c) HHPC approved the two-story Echols House in 2011; (d) the overall height of the Echols House was reduced two and a half feet in the 2012 Application; and (e) HHPC recently approved the construction of a two-story residence next to a one-story house after a demolition. 44. Perszyk, Williams, Ely, Cunningham and Bostick subsequently voted to deny

the 2012 Application. In doing so, they intentionally ignored Burwells advice, HHPCs prior approval of Echolss 2011 Application and the scope of the 2011 Certificate of Appropriateness. 45. Perszyk, Williams, Ely, Cunningham and Bostick consciously and

deliberately elected not to follow HHPCs procedures, Design Guidelines, Regulations, requirements, prior approval and/or precedential decisions. 46. They further violated clearly established law and the fiduciary and other legal

duties they owed to HHPC, the City, Echols and residents of the City. 47. Perszyk, Williams, Ely, Cunningham and Bosticks actions were willful,

malicious, fraudulent, in bad faith, beyond their authority and under a mistaken interpretation of the law. Consequently, they are not immune from civil liability in their individual capacities. 48. On May 21, 2012, HHPC and Cunningham issued a written Notice of Denial

to Echols (the 2012 Written Denial, attached hereto as Exhibit A), which merely provided: It is the decision of the Commission to deny your application for the following reason: Does not meet HHPC guidelines in a number of areas. 10

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49.

The 2012 Written Denial is further evidence that there was no basis to deny

the 2012 Application. The 1989 Act and HHPCs Regulations expressly required HHPC and the City to specifically state the basis for the denial of the 2012 Application and provide Echols with recommendations. The 2012 Written Denial wholly fails to do either. If there had been an actual basis to deny the 2012 Application, the 2012 Written Denial would have included it. 50. Without the certificate of appropriateness, Cunningham and the City refuse to

issue a building permit to allow construction of the Echols House. Count I Appeal of HHPCs Decision 51. Echols adopts and incorporates by reference the allegations set forth in

paragraphs 1 through 50, as if fully set forth herein. 52. Pursuant to Section 11-68-10 of the Code of Alabama, HHPCs decision may

be appealed to the Circuit Court of Madison County. 53. Echolss 2012 Application satisfied all applicable requirements necessary for

the requested certificate of appropriateness. 54. HHPCs denial of Echolss 2012 Application and refusal to issue a second

certificate of appropriateness was without any factual or legal basis and in direct violation of clearly established law, including the 1989 Act and other applicable statutory authority, HHPCs procedures, Design Guidelines, Regulations, requirements, prior approval and/or precedential decisions. 55. Echols is entitled to build the Echols House at 415 Echols Avenue.

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Count II Declaratory Judgment 56. Echols adopts and incorporates by reference the allegations set forth in

paragraphs 1 through 55, as if fully set forth herein. 57. Pursuant to Alabamas Declaratory Judgment Act, Section 6-6-220 et seq. of

the Code of Alabama, Echols respectfully requests the Court to declare the rights, privileges and/or entitlements of the parties with respect to the construction of the Echols House. 58. A justiciable controversy presently exists with respect to the rights of Echols,

including, but not limited to: (1) the effect of HHPCs approval of the 2011 Application; (2) the effect of HHPCs prior approval of the Echols House; (3) the scope of the 2011 Certificate of Appropriateness; (4) whether HHPC had a right to deny the 2012 Application and refuse to issue Echols a second certificate of appropriateness; (5) whether the Echols House complied with HHPCs Design Guidelines, Regulations and/or requirements; (6) whether HHPCs decision violated the 1989 Act and other applicable statutory authority, HHPCs procedures, requirements, Design Guidelines, Regulations, prior approval and/or precedential decisions; (7) whether Defendants actions were arbitrary and/or capricious; (8) whether the 2012 Written Denial violated the 1989 Act and other applicable statutory authority, HHPCs procedures, requirements, Design Guidelines, Regulations, prior approval and/or precedential decisions; (9) whether HHPC acted within its discretion; (10) whether HHPCs Design Guidelines, Regulations and/or requirements are enforceable, as written; (11) whether the City had a basis to deny Echols a building permit; (12) whether the City should be required to issue Echols a building permit for the Echols House; (13) whether HHPC and/or the City should be required to indemnify Echols

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from all loss, cost and expense resulting from its actions; and/or (14) whether Echols may build the Echols House at 415 Echols Avenue. Count III Estoppel 59. Echols adopts and incorporates by reference the allegations set forth in

paragraphs 1 through 58, as if fully set forth herein. 60. In purchasing the Property, demolishing the Lary House and preparing to

build the Echols House, Echols relied upon HHPCs Design Guidelines, Regulations, requirements, prior approval of the Echols House, prior approval of the 2011 Application, 2011 Certificate of Appropriateness and/or precedential decisions. 61. Defendants should be estopped from denying the 2012 Application, refusing

to issue a second certificate of appropriateness to allow the construction of the Echols House, refusing to issue a building permit for the Echols House and otherwise interfering or preventing Echols from building the Echols House at 415 Echols Drive. Count IV Fraud Misrepresentation 62. Echols adopts and incorporates by reference the allegations set forth in

paragraphs 1 through 61, as if fully set forth herein. 63. HHPC, the City, Perszyk, Ely, Cunningham and/or Bostick (the Fraud

Defendants) intentionally, recklessly and/or innocently misrepresented certain material facts to Echols, including, but not limited to: (a) the Fraud Defendants would evaluate applications to HHPC and requested certificates of appropriateness based on HHPCs Design Guidelines, Regulations, requirements, prior approval and/or precedential decisions; (b) the Fraud 13

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Defendants approved the Echols House, including its design and/or scale; (c) the Fraud Defendants gave conceptual approval of the Echols House, including its design and/or scale; (d) the Echols House complied with HHPCs Design Guidelines, Regulations and/or requirements; (e) the 2011 Certificate of Appropriateness included approval for the construction of the Echols House; (f) if Echols demolished the Lary House, it would be able to build the Echols House in its place; and/or (g) Echols could otherwise build the Echols House at 415 Echols Avenue. These misrepresentations were made at various times prior to Echols purchasing the Property, at and prior to the 2011 Hearing and as part of the 2011 Certificate of Appropriateness. 64. Echols relied on the above-described material misrepresentations to its

detriment by, among other things: purchasing the Property, demolishing the Lary House, designing and finalizing plans for the Echols House and/or otherwise preparing to build the Echols House. 65. As a result of the aforementioned material misrepresentations, Echols has

suffered substantial financial harm. Count V Fraud Suppression 66. Echols adopts and incorporates by reference the allegations set forth in

paragraphs 1 through 65, as if fully set forth herein. 67. The Fraud Defendants owed a duty to Echols to disclose certain material

facts, including, but not limited to: (a) the Fraud Defendants would not evaluate HHPC applications and requested certificates of appropriateness based on HHPCs Design Guidelines, Regulations, requirements, prior approval and/or precedential decisions; (b) the Fraud

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Defendants had the right to withdraw or change the scope of their approval and/or the 2011 Certificate of Appropriateness once issued; (c) the Fraud Defendants did not approve the Echols House, including its design and scale; (d) if Echols demolished the Lary House, it did not have the right to build the Echols House; and/or (e) Echols otherwise did not have the right to build the Echols House at 415 Echols Avenue. 68. The Fraud Defendants had knowledge of these material facts and

intentionally, negligently and/or innocently concealed or failed to disclose them to Echols. 69. The Fraud Defendants concealment or failure to disclose said material facts

induced Echols to take or refrain from taking action, including, but not limited to: purchasing the Property, demolishing the Lary House, designing and finalizing plans for the Echols House and/or otherwise preparing to build the Echols House. 70. As a result of the Fraud Defendants failure to disclose the aforementioned

material facts, Echols has suffered substantial financial harm. Count VI Negligence / Wantonness (Defendants) 71. Echols adopts and incorporates by reference the allegations set forth in

paragraphs 1 through 70, as if fully set forth herein. 72. Defendants owed Echols certain duties under Alabama law, including, but

not limited to, the duty to follow, comply with, consistently apply and otherwise adhere to the 1989 Act and other applicable statutory authority, HHPCs Design Guidelines, Regulations and/or requirements. Defendants further owed Echols a duty to honor the approval of the 2011

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Application and the Echols House, including its design and scale, and to properly evaluate the 2012 Application in light of HHPCs prior precedential decisions. 73. Defendants failed to exercise reasonable care in the performance of their

duties by, among other things, refusing to honor the 2011 Certificate of Appropriateness, denying the 2012 Application, issuing the 2012 Written Denial, refusing to issue a second certificate of appropriateness, refusing to issue a building permit and/or otherwise preventing Echols from building the Echols House at 415 Echols Avenue. 74. Defendants actions constitute willful misconduct and reckless indifference to

the consequences that they consciously and intentionally knew would be the likely and probable result of their actions and/or omissions. 75. As a result of Defendants negligent, grossly negligent and/or wanton

conduct, Echols has been directly and proximately damaged. Count VII Conspiracy 76. Echols adopts and incorporates by reference the allegations set forth in

paragraphs 1 through 75, as if fully set forth herein. 77. Defendants entered into a conspiracy with one another and acted in concert to

commit the acts and torts described above in this Complaint and to otherwise prevent and deprive Echols of its right to build the Echols House at 415 Echols Avenue. 78. Defendants actions were directed at Echols and done consciously,

deliberately and performed with malice.

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79.

The conspiracy and Defendants overt actions and omissions committed in

furtherance of the conspiracy caused Echols to suffer substantial financial harm. 80. concerted actions. Count VIII Unconstitutional Vagueness, Ambiguity and Overbreadth 81. Echols adopts and incorporates by reference the allegations set forth in Defendants are jointly and severally liable as a result of their conspiracy and

paragraphs 1 through 80, as if fully set forth herein. 82. HHPCs Design Guidelines, Regulations and other requirements violate

Echolss right to due process guaranteed by Sections 6 and 13 of Article I of the Alabama Constitution of 1901, and are void as a matter of law. 83. HHPCs Design Guidelines, Regulations and other requirements, as written

and/or applied to Echols, are further vague, ambiguous, unreasonable and/or overbroad. 84. The vagueness, ambiguity, unreasonableness and/or overbreadth of HHPCs

Design Guidelines, Regulations and other requirements permitted Defendants to selectively enforce the same to the detriment of Echols by arbitrarily denying the 2012 Application, issuing the 2012 Written Denial, refusing to issue a second certificate of appropriateness and/or otherwise preventing Echols from building the Echols House at 415 Echols Avenue. 85. Sections II. D. 2 and II. D. 3 of the Regulations encourage that proposed new

buildings harmonize with the existing structure in terms of scale, proportions, massing, orientation, colors and materials, and not be injurious to the general visual character of the historic district in which it is to be located. This conflicts with the Design Guidelines, which

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state that the construction of new buildings should not seek to replicate historic designs. Design Guidelines at p. 3-19 (emphasis added). Such conflict, together with the vagueness and ambiguity in the Regulations and the Design Guidelines, caused Defendants to deny the 2012 Application, issue the 2012 Written Denial, refuse to issue a second certificate of appropriateness and/or otherwise prevent Echols from building the Echols House at 415 Echols Avenue. 86. The Design Guidelines, Regulations and other requirements are further

vague, ambiguous, unreasonable and inconsistent with respect to the allowable height permitted for a structure that is replacing one that has been demolished and the implication of conceptual or preliminary approval by HHPC. 87. Further, the Design Guidelines, Regulations and other requirements forbid

and/or require the doing of act(s) in terms so vague that reasonable persons must guess at its meaning and differ as to its application. Such vagueness and ambiguity in the Design

Guidelines, Regulations and other requirements, as written and/or applied by Defendants, caused Echols to, among other things, purchase the Property, demolish the Lary House, design and finalize plans for the Echols House and/or prepare to construct the Echols House. 88. As a result of the unconstitutionally vague, ambiguous, overbroad and/or

inconsistent Design Guidelines, Regulations and other requirements, Echols has suffered substantial financial harm. Count IX Violation of Statutory Authority 89. Echols adopts and incorporates by reference the allegations set forth in

paragraphs 1 through 88 as if fully set forth herein.

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90.

HHPCs Design Guidelines, Regulations and requirements, together with the

application thereof to Echols and other applicants, violate the mandatory guidelines imposed by the 1989 Act, Section 11-45-1 of the Code of Alabama and other applicable statutory authority. As such, they exceed the statutory grant of power to HHPC. 91. Because HHPCs power to regulate Huntsvilles historic districts by

approving applications and issuing certificates of appropriateness is derived from the 1989 Act, it follows that Defendants cannot use such power to further goals not designated by statute. 92. Defendants actions violated the 1989 Act, which states that HHPC shall

approve an application and issue a certificate of appropriateness if it finds that the proposed change, erection, or demolition conforms to the general design standards established by [HHPC], is compatible with the character of the historic property or historic district and does not detract from the value of the historic property or historic district. (emphasis added). 93. Defendants further violated the 1989 Act by objecting to the height of the

Echols House and failing to follow the precedential decisions of the HHPC, including allowing similar houses to be built in the Twickenham Historic District, including one during the preceding twelve (12) months. 94. Defendants also violated the 1989 Act because more than one-fifth of HHPC

is comprised of public officials. See Ala. Code 11-68-3(a). 95. Finally, Defendants violated the 1989 Act because the 2012 Written Denial

does not comply with its requirements. See Ala. Code 11-68-11(c).

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96.

Accordingly, Defendants improperly made ad hoc decisions in derivation of

the 1989 Act and Section 11-45-1 et seq. of the Code of Alabama, which denied Echols the right to build the Echols House at 415 Echols Avenue. Count X Inverse Condemnation 97. Echols adopts and incorporates by reference the allegations set forth in

paragraphs 1 through 96 as if fully set forth herein. 98. The actions of the City by and through HHPC have caused the Property of Echolss right to use the Property as

Echols to be unsuitable for its intended purpose.

contemplated upon purchase has been prevented by the actions of Defendants. 99. Such actions by the City and HHPC constitute a taking without just

compensation in violation of Section 23 of Article I of the Constitution of Alabama of 1901, Section 235 of Article XII of the Constitution of Alabama of 1901 and Section 18-1A-32 of the Code of Alabama. 100. The City and HHPCs taking of the Property was for the public use of alleged

historic preservation. 101. The City and HHPC have the power of eminent domain, and the power to

commence condemnation actions; however, Defendants have not instituted such actions for the taking of the Property. RELIEF REQUESTED ON ALL COUNTS WHEREFORE, PREMISES CONSIDERED, Echols respectfully requests the Court to conjunctively and/or in the alternative, as the Court deems appropriate, enter an Order declaring:

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(1) (2)

HHPC approved the Echols House incident to the 2011 Application and the 2011 Hearing; The scope of the 2011 Certificate of Appropriateness included approval of the Echols House, including its design and scale; HHPC did not have the ability to reconsider, change or otherwise alter its prior approval of the Echols House; Echolss 2012 Application complied with HHPCs Design Guidelines, Regulations and/or requirements and HHPC did not have a basis to deny it; HHPC was required to issue the certificate appropriateness sought by Echolss 2012 Application; of

(3) (4)

(5) (6) (7)

HHPCs actions were arbitrary, capricious and/or exceeded HHPCs discretion and/or authority; HHPCs Design Guidelines, Regulations and/or requirements exceed the permissible scope of and violate those permitted by the 1989 Act and other applicable legal authority; HHPCs Design Guidelines, Regulations and/or requirements as written and/or applied to Echols violate the Alabama Constitution of 1901; Perszyk, Williams, Ely, Bostick and Cunningham violated their duties and responsibilities to HHPC, the City, Echols and residents of the City; Perszyk, Williams, Ely, Bostick and Cunningham are liable for the acts and damages sought herein in their individual capacities; HHPC is required to issue the certificate of appropriateness requested by the 2012 Application; The City is required to issue a building permit for the Echols House; Echols is otherwise entitled to build the Echols House at 415 Echols Avenue; and/or 21

(8)

(9)

(10)

(11) (12) (13)

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(14)

Cunningham and the City are directed not to retaliate against Echols in evaluating the construction of the Echols House, including, but not limited to, whether Echols is entitled to a certificate of occupancy.

Echols further requests the Court to terminate and remove Perszyk, Williams, Ely, Bostick and/or Cunningham from HHPC pursuant to Section 11-68-3(d) of the Code of Alabama and award Echols compensatory damages, punitive damages, attorneys fees, costs of this action and grant such further legal or equitable relief that Echols is entitled to. JURY DEMAND Echols requests a trial by jury as to all claims so triable. Respectfully submitted this 25th day of May, 2012. s/ Walter A. Dodgen One of the Attorneys for Plaintiff OF COUNSEL: Walter A. Dodgen Stephen D. Davis II MAYNARD, COOPER & GALE, P.C. Post Office Box 18668 Huntsville, AL 35804-8668 Telephone: (256) 551-0171 Facsimile: (256) 512-0119 Email: tdodgen@maynardcooper.com sdavis@maynardcooper.com

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TO BE SERVED VIA CERTIFIED MAIL: Huntsville Historic Preservation Commission 320 Fountain Circle Huntsville, Alabama 35801 The City of Huntsville c/o Chuck Hagood, City Clerk Treasurer 308 Fountain Circle Huntsville, AL 35801 Jan Williams 724 Wynsom Dr SE Huntsville, AL 35803 Marie Bostick 2044 McMullen Road Gurley, AL 35748 David Ely 121 Smith Street NE Huntsville, AL 35801 Judy Perszyk 809 Pratt Ave NE Huntsville, AL 35801 Randy Cunningham 320 Fountain Circle Huntsville, AL 35801 Ralph Allen 905 Corinth Cir SE Huntsville, AL 35801

23

H0094052.3

Exhibit A