Alabama REALTORS® Judicial Monitor

Alabama REALTORS® Judicial Monitor

The Public Policy Team monitors Alabama’s courts and federal courts for impacts on the real estate industry and property laws in general. When noteworthy events occur, or important opinions are released, summaries and analysis of the cases will be provided as the Alabama REALTORS® Judicial Monitor.

For the third edition of the Judicial Monitor, we review four items – 1) a U.S. Department of Justice (DOJ) fair housing complaint against a property management company in Tennessee, 2) a Buddhist meditation center’s partial victory against the City of Mobile in a religious land use case, 3) a decision in a big property rights case at the U.S. Supreme Court, and 4) a group of Birmingham residents who won a significant procedural victory in a nuisance case against U.S. Steel Corp.

I. U.S. Department of Justice Files Fair Housing Act Enforcement Action Against Rental Property Owner and Management Company for Racial Discrimination


Discriminatory conduct in the sale and rental of real property is against the law and violates the REALTOR® Code of Ethics. Always keep the following in mind:

  1. Fair Housing Law: Policies and enforcement of the policies cannot discriminate. Under federal law, actions like refusing to sell or rent or “steering” prospective buyers or renters based on their race, color, religion, national origin, sex, familial status, and handicap are prohibited.
  2. REALTOR® Code of Ethics: REALTORS® are also prohibited from discrimination based on sexual orientation and gender identity under the REALTOR® Code of Ethics, Article 10.



II. Plaintiffs Overcome Procedural Hurdle in Religious Land Use Discrimination Claims Against City of Mobile


  1. The Religious Land Use and Institutionalized Persons Act (RLUIPA) prohibits land use decisions, usually concerning zoning ordinances, that discriminate on the basis of religion. If you think local officials have made land use decisions amounting to religious discrimination, you can file a complaint with the DOJ. More information on the DOJ’s enforcement of RLUIPA is available here.
  2. If you are working with a religious group to find property suitable for their house of worship, it is a good idea to check if there is a zoning ordinance prohibiting development for certain uses on a given property. Specific questions on permissible uses under zoning ordinances, variances, and other legal questions should always be discussed with an attorney.

III. U.S. Supreme Court Releases Decision in Weyerhaeuser v. United States Fish and Wildlife Service

On November 27, 2018, the U.S. Supreme Court released its opinion in Weyerhaeuser v. United States Fish and Wildlife Service, a case of great importance to private property owners everywhere. The U.S. Fish and Wildlife Service (USFWS) generally has a great deal of power under the Endangered Species Act (ESA) to take actions to protect endangered species. The limits of the Service’s power have often been litigated in the Supreme Court, and this case is no exception.

The AAR Public Policy team recently published a shorter article on this case, which can be viewed here. The material below explains the case in more detail.


  1. Important legal rules - This case stands for several legal rules:
    1. The ESA authorizes critical habitat designations only of actual “habitats,” meaning any property in America can’t qualify just because it could be retrofitted someday to accommodate a species.
    2. Federal agency decisions are still reviewed by the judiciary for arbitrariness and abuse of discretion, absent a specific statutory exemption. This means that a court will provide less deference to USFWS decisions than what the agency asserted.
    3. A decrease in property value as a result of government action is still an injury that gives the complaining party standing to sue the government.
  2. Takings - The Supreme Court did not discuss a related issue that may come up in these types of situations: takings and eminent domain. In theory, USFWS could have simply taken the property from the Poitevent family and provided them compensation pursuant to the 5th Amendment to the U.S. Constitution. While that was not the avenue USFWS pursued here, it may be something to watch out for given the Court’s holding in this case. 
  3. Consult an Attorney - If you are dealing with land that USFWS has expressed interest in because of an endangered species, it is highly recommended that you consult an attorney who handles environmental law and land use issues.



IV. Citizens Sue to Abate Nuisance on Abandoned U.S. Steel Corp. Factory in Birmingham

Takeaways: This case is a perfect example of the legal issues that come into play when dealing with blighted properties, and there are several takeaways REALTORS® can glean:

  1. City governments cannot be held liable for negligence simply by not enforcing public nuisance statutes against owners of blighted or vacant properties.
  2. Conditions on properties like foul odors can give rise to claims of nuisance against the property owner.
  3. Even if an annoyance like a smelly odor affects many people and not just you, if the odor has specifically injured you in some tangible way (i.e., loss of property value), you could bring a public nuisance claim against the owner of the property where that odor is coming from.



[i] Department of Justice Complaint in U.S. v. Dyersburg Apartments and MACO Management Company Inc., available here.

[ii] U.S. Department of Housing and Urban Development Charge of Discrimination, August 27, 2018; available here.

[iii] The Charge specifically cited Dyersburg and MACO for violations of 42 U.S.C. §§ 3604(a) and (b), prohibiting race-based discrimination in refusal to rent, and in the terms, conditions, or privileges of rental of a dwelling, respectively.

[iv] 42 USC § 3612(a).

[v] 2018 U.S. Dist. LEXIS 167700, *1 (S.D. AL. 2018).

[vi] Id., at *6.

[vii] Id., at *35.

[viii] Id., at *9.

[ix] “Amid religious discrimination probe, Mobile takes Buddhist meditation center to court.”, June 6, 2016, available here.

[x] DOJ also opened a preliminary investigation about the city’s alleged religious discrimination in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), which prohibits land use decisions that substantially burden religious exercise or discriminate on the basis of religion. DOJ has not released findings from that investigation. “Feds Investigating City of Mobile Zoning,” WKRG, April 17, 2016, available here. See 42 U.S.C. §§ 2000cc et seq. 

[xi] A substantial burden would involve a government exerting pressure against a person’s practice of their religious beliefs. Thai Meditation Ass'n, at *37 (citing Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004)). The court found that the fact TMAA would simply be unable to re-locate its facility did not rise to “significant pressure” against the practice of TMAA’s Buddhist faith. Similarly, the court found that the inability to re-locate would not rise to a violation of TMAA’s right to free-exercise of religion under the First Amendment. Id., at *74.

[xii] Thai Meditation Ass'n, at *53.

[xiii] For example, one city council member stated that a mosque which was previously approved in a residential area was not asked to present “tax papers,” and the council member also stated that she couldn’t recall “any other religious facility that I've witnessed expansion planning approval was ever asked” for its IRS paperwork, thus showing “different treatment” for the TMAA’s application. Id., at *56-57.

[xiv] Id., at *64.

[xv] Id., at *76. The court similarly allowed the TMAAs’ claim to proceed to trial on whether the city violated its right to equal protection of the laws under the 14th Amendment to the U.S. Constitution. 

[xvi] TMAA claimed that an official from the planning commission told them the proposed use of the Dog River property would be treated as a religious facility in the zoning process, and stated that they relied on the city official’s representation in purchasing the property. Id., at *81.

[xvii] See 16 U.S.C. § 1533(a)(3)(A)(i).

[xviii] Weyerhaeuser, at *9-12.

[xix] Associate Justice Brett Kavanaugh was not yet confirmed to the Court when oral arguments were heard on this case at the beginning of the Court’s October 2018 term, and thus he did not participate in this decision. Traditionally, Justices who do not participate in oral arguments on a given case do not participate in the decision either.

[xx] Weyerhaeuser, 2018 U.S. LEXIS 6932, *16, __ S.Ct. __, 2018 WL 6174253.

[xxi] Id., at *25.

[xxii] Weyerhaeuser, at *21 (discussing 5 U.S.C. § 701(a)(2)).

[xxiii] Weyerhaeuser, n.1 (citing Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 386 (1926)).

[xxiv] 2018 U.S. Dist. LEXIS 197321, *1. (N.D. AL 2018).

[xxv] Id., at *6.

[xxvi] Ala. Code § 6-5-122.

[xxvii] Woods, at *13.

[xxviii] Id., at *12.

[xxix] Id., at *14. Claims against the city for trespass and wantonness were also dismissed based on government immunity grounds.

[xxx] Id., at *33.

[xxxi] Id., at *44.

[xxxii] Id., at *27.

[xxxiii] Id., at *30.

[xxxiv] Id., at *32.