"[T]he starting point for a standing determination for a litigant before an administrative agency is not Article III, but is the statute that confers standing before that agency."
How later courts described this case
- "[T]he starting point for a standing determination for a litigant before an administrative agency is not Article III, but is the statute that confers standing before that agency."
- explaining that the label of "statutory standing" can be "misleading" because " ' "the absence of a valid (as opposed to arguable
- "Article III requirements do not apply to administrative agencies."
- holding that constitutional-standing requirements are applicable only in public-law cases
Written by the judges who cited it.
The opinion
Rel: May 2, 2025
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2024-2025
_________________________
SC-2023-0610
_________________________
Ex parte Teachers' Retirement System of Alabama et al.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Teachers' Retirement System of Alabama and Employees'
Retirement System of Alabama
v.
Baldwin County Planning and Zoning Department; Baldwin
County Board of Adjustment No. 1; and Point Clear Property
Owners Association, Inc.)
(Baldwin Circuit Court: CV-21-900858;
Court of Civil Appeals: CL-2022-0697)
SC-2023-0610
McCOOL, Justice.1
Facts and Procedural History
This case stems from a land-use certificate that the Baldwin County
zoning administrator ("the administrator") issued to the Teachers'
Retirement System of Alabama and the Employees' Retirement System
of Alabama (collectively referred to as "RSA"). That land-use certificate
authorized RSA to construct a five-story structure that would have added
additional lodging units to The Grand Hotel, which is owned and
operated by RSA. However, pursuant to § 45-2-261.11, Ala. Code 1975
(Local Laws, Baldwin County), "any person aggrieved" by "any decision"
of the administrator could appeal that decision to the Baldwin County
Board of Adjustment ("the Board"). Point Clear Property Owners
Association, Inc. ("PCPOA"), represents approximately 400 members who
reside in or own property in the district where RSA proposed to build its
structure. Pursuant to § 45-2-261.11, PCPOA filed an appeal with the
Board, arguing that the administrator should not have issued the land-
1This case was originally assigned to another Justice on this Court;
it was reassigned to Justice McCool on January 21, 2025.
2
SC-2023-0610
use certificate for multiple reasons. Following a hearing, the Board
agreed with PCPOA and rescinded the land-use certificate.
RSA appealed the Board's ruling to the Baldwin Circuit Court, see
§ 45-2-261.13, Ala. Code 1975 (Local Laws, Baldwin County), and the
circuit court affirmed the ruling. RSA then appealed to the Court of Civil
Appeals, where it argued that the Board should not have considered
PCPOA's appeal because, according to RSA, PCPOA was not "aggrieved"
by the issuance of the land-use certificate. PCPOA and the Board argued
in response that RSA had waived that issue by not raising it before the
Board. RSA did not dispute that it had not raised that issue before the
Board, but it argued that the issue could not be waived because, it said,
if PCPOA was not "aggrieved" by the issuance of the land-use certificate,
then its appeal did not invoke the Board's subject-matter jurisdiction.
The Court of Civil Appeals rejected RSA's argument based on this
Court's decision in City of Mobile v. Lee, 274 Ala. 344, 148 So. 2d 642
(1963). See Teachers' Ret. Sys. of Alabama v. Baldwin Cnty. Plan. &
Zoning Dep't, [Ms. CL-2022-0697, Aug. 11, 2023] ___ So. 3d ___ (Ala. Civ.
App. 2023). According to the Court of Civil Appeals, Lee provides that
whether PCPOA qualified as a "person aggrieved" for purposes of § 45-2-
3
SC-2023-0610
261.11 was an issue of PCPOA's capacity to appeal to the Board, which,
the court reasoned, was an issue that could be waived. Thus, because
RSA had undisputedly failed to argue to the Board that PCPOA was not
"aggrieved" by the issuance of the land-use certificate, the court held that
RSA had waived that argument. Although the court held that RSA had
waived that argument, the court went on to state in a footnote that the
evidence presented to the Board indicated that PCPOA did in fact qualify
as a "person aggrieved" for purposes of § 45-2-261.11. ___ So. 3d at ___
n.3. RSA filed a petition for the writ of certiorari with this Court, which
granted the petition to review those aspects of the Court of Civil Appeals'
decision.
Discussion
RSA argues that the Court of Civil Appeals erred by holding that
whether PCPOA was "aggrieved" by the issuance of the land-use
certificate was an issue that could be waived. In support of that
argument, RSA contends that the "person aggrieved" language in § 45-2-
261.11 is a " 'standing' issue" that implicates the Board's subject-matter
jurisdiction and is not, as the Court of Civil Appeals held, a capacity issue
that may be waived. RSA's brief, p. 26. If it is true that PCPOA's alleged
4
SC-2023-0610
lack of "aggrieved" status was an issue of the Board's subject-matter
jurisdiction, then RSA correctly argues that the issue could not be
waived. See Riley v. Hughes, 17 So. 3d 643, 648 (Ala. 2009) ("[S]ubject-
matter jurisdiction cannot be waived by the failure to argue it as an
issue.").
The traditional, or constitutional, concept of standing stems from
Article III of the United States Constitution, which provides that the
"judicial Power" of federal courts, i.e., their jurisdiction, is limited to
"Cases" and "Controversies." Alabama's courts are not Article III courts,
and Article VI, § 139, of the Alabama Constitution does not contain a
"cases and controversies" provision with respect to "the judicial power of
the state." Nevertheless, Alabama uses the standing test articulated by
the United States Supreme Court in Lujan v. Defenders of Wildlife, 504
U.S. 555 (1992), though the concept of constitutional standing applies
only in public-law cases. 2 See Ex parte BAC Home Loans Servicing, LP,
2In recent years, some Justices on this Court have begun to question
whether this Court should continue to adhere to the Lujan test. See
Hanes v. Merrill, 384 So. 3d 616 (Ala. 2023) (Mitchell and Cook, JJ.,
concurring specially).
5
SC-2023-0610
159 So. 3d 31 (Ala. 2013) (holding that constitutional-standing
requirements are applicable only in public-law cases). Under that test,
"[a] party establishes standing to bring a challenge in a
public-law case ' " 'when it demonstrates the existence of (1)
an actual, concrete and particularized "injury in fact" -- "an
invasion of a legally protected interest"; (2) a "causal
connection between the injury and the conduct complained
of"; and (3) a likelihood that the injury will be "redressed by a
favorable decision." ' " ' Poiroux [v. Rich], 150 So. 3d [1027,]
1039 [(Ala. 2014)] (quoting Alabama Alcoholic Beverage
Control Bd. v. Henri-Duval Winery, LLC, 890 So. 2d 70, 74
(Ala. 2003), quoting in turn other cases)."
Munza v. Ivey, 334 So. 3d 211, 216-17 (Ala. 2021). Thus, a plaintiff who
cannot satisfy those requirements in a public-law case does not have
constitutional standing to proceed, and, " '[w]hen a party without
standing purports to commence an action, the trial court acquires no
subject-matter jurisdiction.' " Riley v. Pate, 3 So. 3d 835, 838 (Ala. 2008)
(quoting State v. Property at 2018 Rainbow Drive, 740 So. 2d 1025, 1028
(Ala. 1999)). See Hanes v. Merrill, 384 So. 3d 616, 620 (Ala. 2023) ("In
'public-law cases,' … standing is an absolute necessity for a court to
obtain subject-matter jurisdiction.").
However, those constitutional-standing requirements are not
applicable when a party's standing is governed by statute, such as when
a statute identifies who may appeal to an administrative agency; rather,
6
SC-2023-0610
it is the statutory requirements that control. See Ritchie v. Simpson, 170
F.3d 1092, 1095 (Fed. Cir. 1999) ("[T]he starting point for a standing
determination for a litigant before an administrative agency is not Article
III, but is the statute that confers standing before that agency."); AVX
Corp. v. Presidio Components, Inc., 923 F.3d 1357, 1361 (Fed. Cir. 2019)
("Article III requirements do not apply to administrative agencies.");
Williamson v. Montana Pub. Serv. Comm'n, 364 Mont. 128, 142, 272 P.3d
71, 82 (2012) ("[S]tanding under the Constitution is not required for
administrative proceedings"; instead, "[a] litigant's standing before an
administrative agency depends on the language of the statute and
regulations which confer standing before that agency."). Indeed, RSA
concedes this fact, noting that it is "not argu[ing] that this Court should
impose Article-III style standing qualifications on administrative
agencies" and that, instead, the issue in this case is one of "statutory
standing." RSA's brief, p. 27. In RSA's view, the fact that this case
involves statutory standing, rather than constitutional standing, is of no
consequence because, according to RSA, statutory standing, like
constitutional standing, is an "unwaivable jurisdictional prerequisite[]."
7
SC-2023-0610
Id. As noted, the Court of Civil Appeals rejected that argument based on
this Court's decision in Lee, supra.
In Lee, the Board of Adjustment of the City of Mobile approved a
zoning variance that permitted the construction of a gasoline service
station in a residential area. At that time, Title 37, § 783, Ala. Code 1940
(1958 Recomp.), provided "any party aggrieved by any final decision of
the board of adjustment the right to appeal to the circuit court."3 Lee,
274 Ala. at 347, 148 So. 2d at 645. Pursuant to that statute, the city
appealed to the Mobile Circuit Court for a review of the board of
adjustment's decision, and the circuit court affirmed that decision. The
city then appealed to this Court, where the appellee moved to dismiss the
appeal, arguing that the city was "not aggrieved by the ruling of the
circuit court, and, therefore, ha[d] no appealable interest." 274 Ala. at
3Section 783 was substantially similar to the current version of
§ 45-2-261.13(a), Ala. Code 1975 (Local Laws, Baldwin County), which
states, in relevant part:
"Any party aggrieved by a final judgment or decision of a
board of adjustment, except a decision on the approval or
disapproval of a subdivision, within 15 days thereafter, may
appeal therefrom to the Circuit Court of Baldwin County,
Alabama, by filing with the circuit court and the board of
adjustment a written notice of appeal specifying the judgment
or decision from which the appeal is taken."
8
SC-2023-0610
346, 148 So. 2d at 644. This Court held, however, that the appellee's
argument "c[ame] too late" and that he had waived it by not "assert[ing]
in the circuit court that the city lacked standing, as a party aggrieved, to
appeal to that court from the decision of the Board of Adjustment," id.:
"If, as appellee now contends, the city is not a party aggrieved
by the decision of the circuit court granting the variance, then
the city was not a party aggrieved by the decision of the board
of adjustment, which granted the same variance, and from
which decision appeal was taken to the circuit court. Appellee
was bound to raise the objection in the circuit court or else to
be regarded as having waived the objection."
274 Ala. at 347, 148 So. 2d at 645 (emphasis added). Of course, if the
city's statutory standing to appeal, i.e., its qualification as a "party
aggrieved," was a jurisdictional issue, then this Court would not have
held that the issue could be waived because it was well settled at that
time that subject-matter jurisdiction cannot be waived. Rinehart v.
Reliance Life Ins. Co. of Ga., 272 Ala. 93, 94, 128 So. 2d 503, 505 (1961).
However, this Court treated the issue of the city's alleged lack of
"aggrieved" status as an issue of "capacity," Lee, 274 Ala. at 346, 148 So.
2d at 644, which does not have jurisdictional implications and therefore
is a waivable issue. Pretl v. Ford, 723 So. 2d 1, 3 (Ala. 1998). Thus, Lee
firmly supports the conclusion that PCPOA's alleged lack of statutory
9
SC-2023-0610
standing to appeal to the Board as a "person aggrieved" by the issuance
of the land-use certificate was not an issue that implicated the Board's
subject-matter jurisdiction.
We acknowledge RSA's argument that Lee is distinguishable from
this case because Lee "did not concern a party's failure to preserve a
challenge to an agency's jurisdiction, but rather a party's failure to
preserve a challenge to a circuit court's ability to hear an appeal from the
agency's final decision." RSA's brief, p. 28. However, both cases involved
a statute that authorized appeals from any party alleging to be
"aggrieved" by a zoning decision, and the only difference between the
procedural posture of the two cases is that the appeal in Lee was taken
to the circuit court, whereas the appeal in this case was taken to an
administrative agency. We do not find this difference to be legally
significant. Lee makes it clear that a challenge to a party's statutory
standing to appeal as a party "aggrieved" by a zoning decision is a
waivable issue, regardless of where that appeal is taken.
Having failed in its attempt to distinguish Lee, RSA argues that
"this Court's post-Lee precedents show that the statutory language at
issue in this case is jurisdictional." RSA's brief, p. 24. Thus, according
10
SC-2023-0610
to RSA, Lee "is an antiquated outlier that deserves to be formally cast
aside." Id., p. 36. In support of that argument, RSA cites Ex parte City
of Huntsville, 684 So. 2d 123 (Ala. 1996), and Mwangi v. Ndegwa, 389 So.
3d 1143 (Ala. 2023).
In Ex parte City of Huntsville, the Board of Adjustment of the City
of Huntsville granted variances from the city's zoning ordinance.
Pursuant to § 11-52-81, Ala. Code 1975, "[a]ny party aggrieved" by the
board of adjustment's decision could appeal the board of adjustment's
decision to the Madison Circuit Court, which the city did. However, the
circuit court dismissed the appeal based on its conclusion that the city
"did not have standing to seek review." 684 So. 2d at 124. On certiorari
review, this Court addressed "whether under § 11-52-81, Ala. Code 1975,
a municipality has standing as a 'party aggrieved' to challenge decisions
by the Board of Zoning Adjustment." Id. Then, after concluding that "a
municipality's standing to seek judicial review of the administrative
decisions of the zoning board promotes the system of zoning prescribed
by the legislature," this Court held "that a municipality does have
standing to challenge decisions of its own board of zoning adjustment."
Id. at 126-27. However, nowhere in its opinion did this Court indicate or
11
SC-2023-0610
even imply that the question of the city's statutory standing to appeal to
the circuit court was an issue with jurisdictional implications. In fact,
this Court acknowledged that it had held in Lee more than 30 years
earlier that the "standing issue" in that case had been waived "because it
was not raised below," 684 So. 2d at 124, and this Court in no way called
that holding into question. Instead, this Court focused only on whether
the city qualified as a "party aggrieved" by the board of adjustment's
decision, and this Court merely held that it did.
Mwangi involved a dispute over the administration of an estate.
The decedent's alleged common-law wife, Lydiah Njoki Mwangi, and the
decedent's daughter filed competing petitions seeking letters of
administration, and the Jefferson Probate Court granted the daughter's
petition. Section 12-22-21, Ala. Code 1975, provides, in relevant part,
that an "[a]ppeal from the order, judgment or decree of the probate court
may be taken by the party aggrieved to the circuit court." Pursuant to
that statute, Mwangi appealed to the Jefferson Circuit Court. The
daughter then filed a motion to dismiss the appeal, arguing that Mwangi
"lacked statutory standing to bring the appeal." 389 So. 3d at 1147. The
circuit court granted the daughter's motion and dismissed Mwangi's
12
SC-2023-0610
appeal "for lack of subject-matter jurisdiction." Id. at 1148. On appeal
from that ruling, this Court stated that "whether Mwangi [was] a 'party
aggrieved' within the meaning of § 12-22-21 [was] dispositive as to
whether she had statutory standing to appeal the probate court's order
to the circuit court." 389 So. 3d at 1149. Then, after concluding that
Mwangi qualified as a "party aggrieved" under § 12-22-21, this Court held
that "the circuit court erred in dismissing Mwangi's appeal for lack of
statutory standing." 389 So. 3d at 1151.
A close reading of Mwangi reveals that it does not support RSA's
argument. In that case, the circuit court concluded that Mwangi lacked
statutory standing to bring her appeal, and the circuit court concluded
that her lack of statutory standing divested the court of subject-matter
jurisdiction over the appeal. However, this Court held only that Mwangi
did have statutory standing to bring her appeal, so this Court did not
have to address -- and did not address -- whether the circuit court would
have lacked subject-matter jurisdiction over Mwangi's appeal if she had
lacked statutory standing. Stated differently, nowhere in its opinion did
this Court state that the daughter could not have waived her challenge
13
SC-2023-0610
to Mwangi's statutory standing to appeal to the circuit court, and the
daughter did in fact explicitly raise that challenge in the circuit court.
Lee makes it clear that the statutory standing to appeal as a party
"aggrieved" by a zoning decision is not an issue with jurisdictional
implications, and nothing in Ex parte City of Huntsville or Mwangi
conflicts with that holding. We also note that numerous courts, including
this Court in Ex parte BAC, supra, have explained that a lack of statutory
standing, unlike a lack of constitutional standing, is not a jurisdictional
issue. Although the cases that follow all speak to a party's statutory
standing to sue, rather than a party's statutory standing to appeal to an
administrative agency, they nevertheless tend to strengthen Lee and
certainly do nothing to undermine it. See Ex parte BAC, 159 So. 3d at 46
(noting that " '[l]ack of statutory authorization best supports analysis as
the lack of a claim upon which relief can be granted, … not a claim over
which the forum court lacks subject matter jurisdiction' " (quoting Jerome
A. Hoffman, The Malignant Mystique of "Standing," 73 Ala. Law. 360,
362 (2012))); MSP Recovery Claims, Series LLC v. Lundbeck LLC, 130
F.4th 91, 102 n.5 (4th Cir. 2025) (noting that the term " 'statutory
standing' " is " 'misleading' " because it " 'does not implicate subject-
14
SC-2023-0610
matter jurisdiction' " (quoting Lexmark Int'l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 128 n.4 (2014))); Newton v. Duke Energy
Florida, LLC, 895 F.3d 1270, 1274 n.6 (11th Cir. 2018); Leyse v. Bank of
Am. Nat'l Ass'n, 804 F.3d 316, 320 (3d Cir. 2015); Foisie v. Worcester
Polytechnic Inst., 967 F.3d 27, 44 (1st Cir. 2020); Simmons v. UBS Fin.
Servs., Inc., 972 F.3d 664, 666 (5th Cir. 2020); Utah Physicians for a
Healthy Env't v. Diesel Power Gear, LLC, 21 F.4th 1229, 1249 (10th Cir.
2021); Magdy v. I.C. Sys., Inc., 47 F.4th 884, 890 (8th Cir. 2022); Lesiv v.
Illinois Cent. R.R. Co., 39 F.4th 903, 917 n.8 (7th Cir. 2022); CACI, Inc.-
Fed. v. United States, 67 F.4th 1145, 1151 (Fed. Cir. 2023); Paulsen v.
Remington Lodging & Hosp., LLC, 773 F.3d 462, 468 (2d Cir. 2014);
Stooksbury v. Ross, 528 F. App'x 547, 555 (6th Cir. 2013); Naruto v.
Slater, 888 F.3d 418, 425 n.7 (9th Cir. 2018); Goff v. Edwards, 653 S.W.3d
847, 854 (Ky. 2022); Goser v. Boyer, 633 S.W.3d 482, 486 n.4 (Mo. Ct.
App. 2021); and Erda Cmty. Ass'n Inc. v. Grantsville City, 558 P.3d 91,
101, 102 (Utah Ct. App. 2024) (noting that " '[s]tatutory standing' is a
concept distinct from 'traditional standing' " and that "the statutory
standing inquiry -- unlike the traditional/constitutional standing inquiry
-- is not jurisdictional").
15
SC-2023-0610
Having failed to demonstrate that Lee has been undermined by this
Court's post-Lee precedents, RSA argues in its initial brief that the
majority of other states have held that an administrative agency's
subject-matter jurisdiction cannot be waived. We have no disagreement
with RSA's argument that an administrative agency has subject-matter
jurisdiction to take only those actions that it has been authorized to take
by statute or by rule. See Ex parte State Health Plan. and Dev. Agency,
855 So. 2d 1098, 1102 (Ala. 2002) (referring to an administrative agency's
"statutory authority" as its "jurisdiction"). However, none of the cases
RSA cites in its initial brief involved the statutory standing of a party
appealing to an administrative agency; in fact, not one of those cases even
used the term "standing." Instead, each of those cases addressed whether
the action the administrative agency had taken was authorized by
statute or whether its jurisdiction had been timely invoked. Here, there
is no dispute that the Board's decision to reverse the administrator's
issuance of the land-use certificate was an action that the Board was
statutorily authorized to take. 4 See § 45-2-261.12(a)(1), Ala. Code 1975
4RSA cites one case in its reply brief that supports its argument.
In
Warrington v. Zoning Bd. of Appeals of Rutland, 78 Mass. App. Ct. 903,
905, 937 N.E.2d 980, 983 (2010), the Massachusetts Court of Appeals
16
SC-2023-0610
(Local Laws, Baldwin County) (authorizing the Board to "hear and decide
appeals where it is alleged there is error in any order, requirement,
decision, or determination made by an administrative official in the
enforcement of the zoning regulations").
In reviewing cases from other jurisdictions, we also discovered that
the United States Court of Appeals for the Eleventh Circuit has likewise
held that a rule providing only an "aggrieved" party with the right to an
appeal is not a rule with jurisdictional implications. In In re Ernie Haire
Ford, Inc., 764 F.3d 1321 (11th Cir. 2014), the Eleventh Circuit Court of
Appeals stated:
"Due to the nature of bankruptcy proceedings, which
'often involve numerous creditors who are dissatisfied with
any compromise that jeopardizes the full payment of their
outstanding claims against the bankrupt,' special rules have
been developed to govern which parties may appeal a
bankruptcy court order. Under § 39(c) of the now-repealed
Bankruptcy Act of 1898, only 'a person aggrieved' could
appeal from an order of the bankruptcy court. Although the
Bankruptcy Reform Act of 1978, Pub. L. No. 95-598, 92 Stat.
2549, does not include a similar provision limiting who can
appeal, courts continue to apply the person aggrieved
standard because 'Congress [did not] intend[] to alter the
definition set forth in the prior law.' Like our sister circuits,
held that " '[a]ggrieved person status is no less a jurisdictional condition
to maintaining an appeal to a board of appeal … than it is to maintaining
judicial review.' " (Citation omitted.) However, Warrington is at odds
with this Court's decision in Lee, supra.
17
SC-2023-0610
we have adopted the person aggrieved doctrine as our
standard for determining whether a party can appeal a
bankruptcy court's order."
764 F.3d at 1324-25 (internal citations omitted). Despite the fact that an
appeal of a bankruptcy court's order is limited to a "person aggrieved" by
the order -- a requirement that was originally grounded in statute -- the
Eleventh Circuit Court of Appeals stated that "the person aggrieved
standard does not speak to a court's subject-matter jurisdiction." Id. at
1325 n.3 (emphasis added). See also Jewel v. National Sec'y Agency, 673
F.3d 902, 907 n.4 (9th Cir. 2011) ("[T]he district court's determination
that Jewel was not an 'Aggrieved Person' under the … [applicable]
statutes is a merits determination, not a threshold standing question.
Statutory 'standing, unlike constitutional standing, is not
jurisdictional.' " (quoting Noel v. Hall, 568 F.3d 743, 748 (9th Cir.2009)));
and Norris Family Assocs., LLC v. Town of Phippsburg, 879 A.2d 1007,
1012 (Me. 2005) (holding that "subject matter jurisdiction and standing
to appeal are separate issues").
In sum, RSA has not demonstrated that Lee is no longer good law,
and that case indicates that whether PCPOA qualified as a "person
aggrieved" for purposes of § 45-2-261.11 was not an issue that implicated
18
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the Board's subject-matter jurisdiction and thus was an issue that could
be waived. To be clear, in reaching this conclusion we are not, as RSA
suggests, departing from the well-established rule that subject-matter
jurisdiction cannot be waived. The Board has only those powers that
have been granted to it by § 45-2-261.12, and a claim that the Board has
taken action that does not fall within those powers is an unwaivable
challenge to the Board's subject-matter jurisdiction. Bishop State Cmty.
Coll. v. Williams, 4 So. 3d 1152 (Ala. Civ. App. 2008). However, whether
PCPOA was a proper party to appeal to the Board to ask it to exercise
those powers is a question of PCPOA's "capacity" to bring the appeal, Lee,
274 Ala. at 346, 148 So. 2d at 644, not a question of the Board's subject-
matter jurisdiction to consider the appeal. Thus, as Lee demonstrates,
RSA was obligated to argue to the Board that PCPOA was not "aggrieved"
by the issuance of the land-use certificate if RSA believed that PCPOA's
alleged failure to satisfy that statutory requirement warranted dismissal
of the appeal. Otherwise, the issue was waived, and nothing prevented
the Board from proceeding to exercise its statutorily authorized power to
review the administrator's issuance of the land-use certificate. Lee,
supra.
19
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Conclusion
The Court of Civil Appeals correctly held, in accord with Lee, that
RSA had waived its argument that the Board should not have considered
PCPOA's appeal because RSA had failed to argue before the Board that
PCPOA was not "aggrieved" by the issuance of the land-use certificate.
§ 45-2-261.11. We therefore affirm the judgment of the Court of Civil
Appeals on that basis, and, because we affirm on that basis, we need not
address that court's conclusion that PCPOA was in fact "aggrieved" by
the issuance of the land-use certificate. Thus, nothing in this opinion
should be construed as approval of that part of the Court of Civil Appeals'
decision, which we note was dicta.
AFFIRMED.
Wise, Bryan, and Mendheim, JJ., concur.
Cook, J., concurs specially, with opinion.
Shaw, J., concurs in the result.
Sellers, J., dissents, with opinion, which Stewart, C.J., joins.
20
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COOK, Justice (concurring specially).
I concur with the well-supported main opinion. However, I write
specially to make a few observations for the bench and the Bar about
waiver issues in administrative appeals and about our Court's holding in
this case.
First, the main opinion correctly concludes that the alleged lack of
"statutory standing" of Point Clear Property Owners Association, Inc.
("PCPOA"), to appeal to the Baldwin County Board of Adjustment ("the
Board") as a "person aggrieved" was not an issue that implicated the
Board's subject-matter jurisdiction. See Lexmark Int'l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 128 n.4 (2014) (explaining that
the label of "statutory standing" can be "misleading" because " ' "the
absence of a valid (as opposed to arguable) cause of action does not
implicate subject-matter jurisdiction, i.e., the court's statutory or
constitutional power to adjudicate the case" ' " (citations omitted)); and In
re Ernie Haire Ford, Inc., 764 F.3d 1321, 1325 n.3 (11th Cir. 2014) (citing
Lexmark and noting that it "counsels that the person aggrieved standard
does not speak to a court's subject-matter jurisdiction"). As the main
opinion notes, "statutory standing" is ordinarily waivable while subject-
21
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matter jurisdiction is not waivable.
The Teachers' Retirement System of Alabama and the Employees'
Retirement System of Alabama (collectively referred to as "RSA") concede
that they did not expressly raise the "statutory standing" issue -- that is,
whether PCPOA was "aggrieved" by the issuance of the land-use
certificate -- before the Board. Further, RSA does not argue that there is
some unique reason for why it was not obligated to raise that issue before
this type of administrative agency. As a result, the main opinion did not
have to specifically address whether "statutory standing" issues must
always be raised before every type of administrative agency in order for
those issues to not be waived. Our Court's decision here should not be
construed by the bench and the Bar as having done so.
Second, I believe that any view of waiver at the administrative-
proceeding level must be a question of substance rather than form.
Administrative proceedings are often before nonlawyers and are typically
far less formal than trial-court proceedings. In fact, there may be
instances when the parties themselves are not represented by counsel
during an administrative proceeding. As a result, terms like "subject-
matter jurisdiction" and "standing" are not likely to be used by the parties
22
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or the board members. Further, parties to an administrative proceeding
often do not submit "pleadings" in the traditional sense. Thus, applying
a strict view of waiver, such as the view applied to arguments raised in
trial-court proceedings, to proceedings before all types of administrative
agencies could lead to unjust and illogical outcomes.
To illustrate my point, during PCPOA's appeal before the Board,
RSA argued that PCPOA's appeal was premature because the land-use
certificate was merely preliminary and a final building permit would be
issued later. 5 This assertion could be construed as an argument that
PCPOA was not, at that point, a "person aggrieved" -- even though those
magic words were not used by RSA. However, even if we were to construe
RSA's argument in this manner, we cannot ignore the fact that RSA did
not argue that PCPOA (or its members) would not be "aggrieved" when
the project was actually constructed. Thus, PCPOA did not have the
5To the extent that it is necessary to reach this question (that is,
whether PCPOA had the right to file an appeal to the Board from the
issuance of the land-use certificate before the issuance of the building
permit), I agree with the reading of the zoning ordinance by the Court of
Civil Appeals, and thus I agree PCPOA was not premature in its filing.
Teachers' Ret. Sys. of Alabama v. Baldwin Cnty. Plan. & Zoning Dep't,
[Ms. CL-2022-0697, Aug. 11, 2023] ___ So. 3d ___, ___ (Ala. Civ. App.
2023).
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opportunity to introduce evidence or to make any arguments addressing
that question, and, likewise, the Board did not have the opportunity to
consider that question.
To me, the relevant question is whether the administrative agency
was given fair notice of the argument and an opportunity to rule upon
the particular argument. If it was, then the argument was not waived. If
it was not, then it was waived.
Third, and also relatedly, administrative proceedings are not
necessarily the forum to litigate pure questions of law. Our Court has
previously explained that an appeal to a circuit court from a decision by
a board of adjustment "is considered an 'administrative remedy' in that
the [circuit] court may hear only those issues that were properly raised
before a board of adjustment and that are included in the transcript of
the proceedings." Ex parte Lake Forest Prop. Owners' Ass'n, 603 So. 2d
1045, 1046 (Ala. 1992) (emphasis added). While it is well settled in
Alabama "that the general principle of 'exhaustion of administrative
remedies' applies to zoning matters," our Court has also recognized that
this rule is not without exceptions. Budget Inn of Daphne, Inc. v. City of
Daphne, 789 So. 2d 154, 157 (Ala. 2000) (citing City of Gadsden v.
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Entrekin, 387 So. 2d 829, 833 (Ala. 1980) (plurality opinion)). A couple of
those exceptions include when: "(1) the question raised is one of
interpretation of a statute, [or] (2) the action raises only questions of law
and not matters requiring administrative discretion or an administrative
finding of fact …." Ex parte Lake Forest Prop. Owners' Ass'n, 603 So. 2d
at 1046-47 (citing City of Gadsden, 387 So. 2d at 833) (emphasis
added). In light of the foregoing, I am not convinced that pure questions
of law must always first be presented to an administrative agency or
board to avoid being waived, and I do not read the main opinion as so
holding.
Fourth, our decision does not reach (or need to reach) the question
whether the Board's decision was arbitrary or capricious or whether it
correctly construed the zoning ordinance. I take no position on these
issues.
Fifth, I agree with the main opinion that we need not address the
Court of Civil Appeals' conclusion that PCPOA was, in fact, "aggrieved"
by the county zoning administrator's determination that RSA was
entitled to the issuance of a land-use certificate. See Teachers' Ret. Sys.
of Alabama v. Baldwin Cnty. Plan. & Zoning Dep't, [Ms. CL-2022-0697,
25
SC-2023-0610
Aug. 11, 2023] ___ So. 3d ___, ___ n.3 (Ala. Civ. App. 2023). The main
opinion is correct that nothing in it should be construed as approval of
that part of the Court of Civil Appeals' decision. I read that portion of the
Court of Civil Appeals' decision as dicta and potentially inconsistent with
the record.
Finally, I observe that RSA was the party that appealed the Board's
decision to rescind the land-use certificate to the circuit court. If RSA had
won before the Board, its waiver of the "person aggrieved" issue might be
irrelevant because, as our appellate courts have recently recognized, the
burden is on the party appealing a Board's decision to show that they are
a "person aggrieved." See, e.g., Equity Tr. Co. v. Kimbrell, [Ms. CL-2024-
0510, Jan. 31, 2025] ____ So. 3d ____, ____ (Ala. Civ. App. 2025)
(recognizing that " ' "in order for a party to appeal from a decision of a
zoning board he must be a 'party aggrieved' by establishing proof of the
adverse effect the changed status of the rezoned property has, or could
have on the use, enjoyment, and value of his own property" ' " (quoting
Gulf House Ass'n v. Town of Gulf Shores, 484 So. 2d 1061, 1063 (Ala.
1985), quoting in turn Crowder v. Zoning Bd. of Adjustment of
Birmingham, 406 So. 2d 917, 918 (Ala. Civ. App. 1981)) and holding that
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objecting property owner failed to demonstrate that she was a "party
aggrieved" permitted by statute to appeal board's decision to the circuit
court). Thus, our decision in the present case should not be read or
construed by the bench and the Bar as observing anything about waiver
if PCPOA had lost below and had been the party appealing from the
Board's decision.
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SELLERS, Justice (dissenting).
I respectfully dissent. The Baldwin County zoning administrator
("the administrator") issued a land-use certificate to the Teachers'
Retirement System of Alabama and the Employees' Retirement System
of Alabama (collectively referred to as "RSA"), authorizing RSA to
construct additional lodging units on property that it owns in Baldwin
County. The Point Clear Property Owners Association, Inc. ("PCPOA"),
appealed that decision to Baldwin County Board of Adjustment No. 1
("the Board"), pursuant § 45-2-261.11, Ala. Code 1975 (Local Laws,
Baldwin County). Relevant here, that section provides that any person
"aggrieved" by a decision of the administrator is permitted to file an
appeal with the Board. Following a hearing, the Board rescinded the
land-use certificate. RSA ultimately filed an appeal with the Court of
Civil Appeals arguing, in relevant part, that PCPOA was not a party
"aggrieved" within the meaning of § 45-2-261.11 and, thus, that the
Board should not have considered its appeal. The Court of Civil Appeals
issued an opinion concluding that RSA had waived that argument by
failing to raise it before the Board. RSA sought certiorari review, which
this Court granted, and it now affirms that court's decision. See
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Teachers' Ret. Sys. of Alabama v. Baldwin Cnty. Plan. & Zoning Dep't,
[Ms. CL-2022-0697, Aug. 11, 2023] ___ So. 3d ___ (Ala. Civ. App. 2023).
I disagree that RSA waived the issue whether PCPOA was a party
"aggrieved" within the meaning of § 45-2-261.11. It is fundamental that
the peaceful enjoyment of property is a "right" generally recognized in
Alabama and that restrictions on land use should be strictly construed in
favor of the right to use and develop property and against any authority
attempting to curtail or otherwise limit such use and enjoyment. See
generally Smith v. City of Mobile, 374 So. 2d 305, 307 (Ala. 1979)
("Statutes or ordinances which impose restrictions on the use of private
property are strictly construed."). In my opinion, the determination of
whether PCPOA was a party "aggrieved" within the meaning of § 45-2-
261.11 was a question of fact for the Board, and PCPOA had the burden
of proving that fact. By its plain language, § 45-2-261.11 limits the right
to an appeal to "any person aggrieved." To establish itself as being
"aggrieved," PCPOA was required to present " 'proof of the adverse effect
the changed status of the rezoned property has, or could have, on the use,
enjoyment and value' of [its or its members'] own property." Crowder v.
Zoning Bd. of Adjustment of Birmingham, 406 So. 2d 917, 918 (Ala. Civ.
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App. 1981) (quoting Cox v. Poer, 45 Ala. App. 295, 297, 229 So. 2d 797,
799 (1969)) (emphasis added). Notably, the Court of Civil Appeals
indicated that "the Board heard testimony from one of PCPOA's 400-plus
members owning property in the vicinity of RSA's land indicating that
the proposed building would be susceptible to flooding and would be
almost 2.5 times the height of immediately adjacent residential
structures." Teachers' Ret. Sys. of Alabama, ___ So. 3d at ___ n.3.
However, as this Court has recognized, PCPOA cannot allege general
disagreements with RSA's use of its property; rather, PCPOA must offer
proof of the adverse effect on a member's use, enjoyment, and value of his
or her own property. See Ex parte Steadham, 629 So. 2d 647, 648 (Ala.
1993) (holding that parties had presented sufficient evidence to indicate
that they were "aggrieved" when there was "testimony, albeit disputed,
that the [parties] would suffer diminished property values as a proximate
result of the zoning variance"); see also Gulf House Ass'n, Inc. v. Town of
Gulf Shores, 484 So. 2d 1061, 1063 (Ala. 1985) (holding that the residents
of Gulf House condominium failed to show any adverse effect on the use,
enjoyment, and value of their property when the residents complained
only that the construction of a condominium building would interfere
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with their view of the Gulf of Mexico). Thus, to perfect an appeal to the
Board, a party claiming to be "aggrieved" must offer proof of the adverse
effect on the use, enjoyment, and value of his or her own property, and
that proof cannot be based merely on aesthetic, ephemeral, or speculative
considerations. Because, in my opinion, RSA did not waive its argument
that PCPOA was not "aggrieved," I would reverse the Court of Civil
Appeals' judgment holding otherwise.
Stewart, C.J., concurs.
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