Rel: August 2, 2024

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

SPECIAL TERM, 2024

_________________________

SC-2023-0516

_________________________

City of Helena

v. 

Pelham Board of Education and Rick Rhoades, Angie Hester, 

Bob O'Neil, Robert Plummer, Sharon Samuel, and Chuck 

Ledbetter, in their official capacities as officers and/or members

of the Pelham Board of Education

Appeal from Shelby Circuit Court

(CV-21-900714)

PER CURIAM.
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The City of Helena ("Helena") appeals from the Shelby Circuit 

Court's order entered in favor of the Pelham Board of Education ("the 

PBE") and its officers and/or members, in their official capacities ("the 

board members"),1 that authorizes the PBE to acquire, develop, and use 

the real property that is the subject of the dispute between the parties in 

this case. We affirm the circuit court's order.

I. Facts

The facts in this case are largely undisputed, and we are familiar 

with the case because it has been before us once before in City of Helena 

v. Pelham Board of Education, 375 So. 3d 750 (Ala. 2022).

The PBE is a city board of education that serves students in the 

City of Pelham ("Pelham") under the authority of § 16-11-1 et seq., Ala. 

Code 1975. The PBE was first established by a resolution of the Pelham 

City Council in September 2013, and it began operating in July 2014. 

1Helena sued the following officers and/or members of the PBE: 

Rick Rhoades, in his capacity as president of the PBE; Angie Hester, Bob 

O'Neil, Robert Plummer, and Sharon Samuel, in their capacities as 

members of the PBE; and Scott Coefield, in his capacity as the 

superintendent of the Pelham City Schools and the chief executive officer 

of the PBE. During the litigation, Chuck Ledbetter succeeded Coefield as 

superintendent of the Pelham City Schools and chief executive officer of 

the PBE, and Ledbetter was substituted as a defendant. See Rule 

25(d)(1), Ala. R. Civ. P.
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Helena is a municipal corporation organized and incorporated pursuant 

to § 11-41-1 et seq., Ala. Code 1975. Helena and Pelham are next to each 

other geographically, and they are both located in Shelby County, but the 

school-aged students in Helena are served by the Shelby County Board 

of Education ("the SCBE"), and qualified electors of Helena may vote in 

elections for members of the SCBE and its superintendent.

The dispute between the parties concerns approximately 52 acres 

of real property located adjacent to Pelham High School that the PBE 

purchased on June 29, 2021, for a total purchase price of approximately 

$468,000 ("the property"). Although the principal high-school building for 

Pelham High School is located within the corporate limits of Pelham, the 

property, which is directly south of the Pelham High School campus, is 

located within the corporate limits of Helena. The property has not been 

deannexed by Helena or annexed by Pelham, and Helena has been 

collecting property taxes on the property. In 2018, the property was zoned 

for single-family residential use under Article XXIV, § 3, of the Helena 

Zoning Ordinance. Specifically, the property is zoned as a "Special 

District -- Planned Residential District."
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The PBE purchased the property with the intent of constructing an 

athletic field and a parking lot on the property to serve the students who 

attend Pelham High School and who participate in physical education 

and school-sanctioned interscholastic sports ("the athletic-field project"). 

Plans and sketches illustrating the design, configuration, and 

approximate location of the athletic-field project were submitted to State 

of Alabama authorities for public-school improvements, including, but 

not limited to, the Alabama Division of Construction Management, and 

those plans and required submissions were reviewed and approved by the 

relevant State authorities. In October 2021, the PBE began land-clearing 

and preliminary-construction activities on the property. The athleticfield project was delayed at certain periods during the course of this 

litigation because Helena issued stop-work orders based on its zoning 

ordinance. However, in February 2023, the athletic-filed project was 

substantially completed according to an Alabama Division of 

Construction Management final inspection, and Helena does not dispute 

that it is substantially completed.

On November 29, 2021, Helena filed a complaint in the Shelby 

Circuit Court against the PBE and the board members. Helena's 
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complaint sought a judgment declaring that the PBE lacked the "power 

or authority to construct, maintain, or operate school facilities within a 

municipality other than its own." Helena also sought an injunction to 

prevent the PBE and "its contractors, agents, and employees from 

continuing its construction activities on the Property and grading, 

altering or otherwise disturbing the Property."

On December 3, 2021, the PBE and the board members filed an 

answer to the complaint and a counterclaim. In their answer, the PBE 

and the board members admitted many of the complaint's factual 

allegations, but they asserted that the PBE was exempt from Helena's 

zoning ordinance because the athletic-field project constituted a 

"governmental function." In their counterclaim, the PBE and the board 

members sought preliminary and permanent injunctive relief prohibiting 

Helena from stopping or interfering with the athletic-field project, and 

they sought an award of damages incurred because of the delays to the 

project allegedly caused by Helena's stop-work orders. On December 30, 

2021, Helena filed a motion to dismiss the PBE and the board members' 

counterclaim.
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The parties thereafter filed with the circuit court joint stipulations 

of facts and accompanying exhibits. On February 1, 2022, the circuit 

court held a hearing on the parties' pending motions. At the hearing, the 

circuit court deferred ruling on Helena's motion to dismiss pending its 

review of the threshold issue of the PBE's authority to undertake the 

athletic-field project. On May 6, 2022, the circuit court entered an order 

granting the PBE and the board members' request for a preliminary 

injunction, preventing Helena from interfering with construction of the 

athletic-field project and requiring Helena to rescind any stop-work 

orders or citations it may have issued to the PBE. The circuit court 

reasoned that "[c]ity zoning ordinances do not apply to the operation of a 

governmental function by a government body"; that the PBE "is a 

government body"; that the athletic-field project "is not a proprietary 

function, rather it is a governmental function, namely the administration 

and management of free public schools as required by Section 256 of the 

Alabama Constitution"; and that the PBE "is not a subdivision nor ...

subservient to the City of Pelham. Rather, it is an agency of the State of 

Alabama." The circuit court concluded: "The fact that [the PBE] has 

chosen to purchase and develop property in the City of Helena to provide 
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free public education to students who reside in the [PBE's] school district 

is a government function it is authorized to carry out."

On May 19, 2022, Helena filed a motion to stay enforcement of the 

circuit court's order issuing a preliminary injunction and a notice of 

appeal to this Court. On June 7, 2022, the circuit court denied Helena's 

motion to stay. On June 16, 2022, Helena filed in this Court an 

emergency motion to stay enforcement of the order issuing a preliminary 

injunction; on July 13, 2022, this Court denied that motion.

On October 21, 2022, this Court issued its opinion in City of Helena, 

reversing the circuit court's May 6, 2022, order issuing a preliminary 

injunction because, we concluded, the order had failed to comply with 

Rule 65(d)(2), Ala. R. Civ. P.2 Specifically, the Court observed that 

"[n]otably absent from the trial court's order is any statement that the 

2Rule 65(d)(2), Ala. R. Civ. P., provides:

"(2) Every order granting an injunction shall set forth 

the reasons for its issuance; shall be specific in terms; shall 

describe in reasonable detail, and not by reference to the 

complaint or other document, the act or acts sought to be 

restrained; and is binding only upon the parties to the action, 

their officers, agents, servants, employees, and attorneys, and 

upon those persons in active concert or participation with 

them who receive actual notice of the order by personal service 

or otherwise."
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[PBE and the board members] would suffer irreparable harm if the trial 

court refused to grant the preliminary injunction; additionally, the order 

does not address whether the [PBE and the board members] have an 

adequate remedy at law." City of Helena, 375 So. 3d at 753. The Court 

expressly noted that, because the circuit court had failed to fulfill the 

procedural requirements of Rule 65(d)(2), "we need not address the other 

arguments raised by Helena in this appeal, which are directed at the 

merits of the order," and that "[o]ur holding should not be interpreted as 

precluding the [PBE and the board members] from requesting that the 

trial court issue a preliminary injunction that is consistent with this 

opinion." Id. at 754.

On remand, Helena filed, on November 8, 2022, a motion for a 

permanent injunction, a ruling on the remaining claims, and the entry of 

a final judgment. In that motion, Helena announced its intention to 

reissue stop-work orders because of the absence of a preliminary 

injunction preventing it from doing so, and Helena subsequently issued 

stop-work orders to the PBE, its contractors, and employees associated 

with the athletic-field project. In November 2023, Helena initiated 

criminal proceedings in municipal court against the board members for 
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defying the stop-work orders. In response, on December 1, 2023, the PBE 

and the board members filed in the circuit court a "Motion for Stay of 

Prosecution," seeking the circuit court's intervention in the municipalcourt proceedings. Helena responded on the same date with a motion to 

strike the PBE and the board members' motion to stay the municipalcourt proceedings and a renewed motion for a final judgment.

On March 21, 2023, the PBE and the board members filed an 

amendment to their counterclaim that supplemented the amount of 

damages requested as a consequence of Helena's stop-work orders that 

had impeded construction of the athletic-field project. They also filed a 

response to Helena's motion for a permanent injunction. On May 9, 2023, 

Helena filed a renewed motion for a permanent injunction, a ruling on 

the remaining claims, and the entry of a final judgment.

On July 5, 2023, the circuit court entered an order ostensibly 

granting declaratory relief in favor of the PBE and the board members 

on all substantive issues. The circuit court began its order by observing 

that Helena did not deny that the athletic-field project "serve[s] a 

governmental function that generally renders [the PBE] exempt from 

local land use regulations. However, Helena contends that the exemption 
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does not apply to the circumstances presented here" because the athleticfield project "attempts to develop property for school-related purposes in 

an adjacent city whose residents are served by a separate school system 

-- in this case, the Shelby County system." The circuit court further noted 

that Helena had argued that § 16-11-9, Ala. Code 1975, prohibited the 

PBE from constructing school facilities outside the corporate limits of 

Pelham. The circuit court then reiterated its findings from its May 6, 

2022, order, and it noted that our decision in City of Helena "did not 

extend to or affect [the circuit court's] declaratory rulings." Accordingly, 

the circuit court stated that it "continues to find that Helena is not 

entitled to prevail on the merits of this controversy." The circuit court 

then explained its view that Helena lacked the authority to enforce its 

zoning ordinance against the PBE's athletic-field project because of the 

well-settled rule that " '"city zoning ordinances [do] not apply to the 

operation of a governmental function by a governing body, as opposed to 

a proprietary function." Lane v. Zoning Bd. of Talladega, 669 So. 2d 958, 

959 (Ala. Civ. App. 1995) (emphasis added).'" Barnes v. Town Council of 

Perdido Beach, 375 So. 3d 1, 12 (Ala. 2022) (quoting City of Selma v. 

Dallas Cnty., 964 So. 2d 12, 16 (Ala. 2007)). The circuit court also rejected 
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Helena's argument based on § 16-11-9 because, it said, that statute 

"describes the general administrative and managerial powers vested in 

city boards of education. The statute grants authority and it does not 

restrict authority." (Emphasis in original.) The circuit court also 

concluded that, "because Helena cannot prevail on the merits of the 

controversy relating to the parties' respective authority and law, other 

equitable considerations cannot offset or neutralize the dispositive effect 

of the controlling questions of law that have already been decided by this 

Court." The circuit court then listed various reasons why it believed the 

PBE and Pelham High School students would suffer irreparable injury if 

the athletic-field project was enjoined and why any injury to Helena 

would be "nominal." The circuit court concluded its order by expressing 

the view that,

"[h]ere, the rules of law that empower [the PBE's] function 

(education) and that restrict Helena's ability to interfere with 

said government function have been consistently applied by 

Alabama courts. The law of the case is not subject to variable, 

case-by-case application. For this Court to amend the 

Alabama Code to impose such burdens on the exercise of local 

agency authority would be judicial overreach."
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Helena appealed from the circuit court's July 5, 2023, order on July 

18, 2023, within 14 days of the entry of the order.3

II. Standard of Review

As we noted in the rendition of the facts, the pertinent facts are 

undisputed, the parties filed lengthy joint stipulations and submissions 

3We note that the circuit court's July 5, 2023, order was 

interlocutory because the PBE and the board members' request for 

damages was still outstanding and the circuit court's order left open the 

possibility for such an award by stating that "[t]he Parties have 30 days 

to show cause as to why any further relief sought should not be denied, 

thereby making this order final." However, the order was appealable 

under Rule 4(a)(1)(A), Ala. R. App. P., because both sides had sought 

injunctive relief, and the circuit court had refused Helena's request for 

an injunction. Moreover, although the PBE and the board members insist 

in their brief that the circuit court entered a declaratory judgment, and 

Helena does not dispute that point, the circuit court's granted relief 

appears, at least in part, to be injunctive in nature because it requires 

Helena not to enforce its zoning ordinance with respect to the property 

and grants the PBE permission to "use the property at issue for the uses 

contemplated and approved by the [PBE] and State School Construction 

authorities." See, e.g., Lem Harris Rainwater Fam. Tr. v. Rainwater, 344 

So. 3d 331, 336 (Ala. 2021) (noting that "'[a]n injunction is defined as "[a] 

court order commanding or preventing an action." Black's Law 

Dictionary 788 (7th ed. 1999).'" (quoting Dawkins v. Walker, 794 So. 2d 

333, 335 (Ala. 2001))). Likewise, unlike the circuit court's May 6, 2022, 

order that we reversed for a failure to comply with Rule 65(d)(2), Ala. R. 

Civ. P., the circuit court's July 5, 2023, order expressly explained why the 

circuit court believed that the PBE and the board members had sustained 

an irreparable injury and why it believed that they lacked an adequate 

remedy at law. 
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to the circuit court, no testimony was heard by the circuit court, and the 

issues decided by the circuit court were questions of law.

"'When reviewing a case in which the trial court sat without 

a jury and heard evidence in the form of stipulations, briefs, 

and the writings of the parties, this Court sits in judgment of 

the evidence; there is no presumption of correctness. Old 

Southern Life Ins. Co. v. Williams, 544 So. 2d 941, 942 (Ala. 

1989); Craig Constr. Co. v. Hendrix, 568 So. 2d 752, 756 (Ala. 

1990). When this Court must determine if the trial court 

misapplied the law to the undisputed facts, the standard of 

review is de novo, and no presumption of correctness is given 

the decision of the trial court. State Dep't of Revenue v. 

Garner, 812 So. 2d 380, 382 (Ala. Civ. App. 2001); see also Ex 

parte Graham, 702 So. 2d 1215 (Ala. 1997). In this case the 

trial court based its decision upon the stipulations, briefs, 

writings, and arguments of the parties' attorneys. No 

testimony was presented. Therefore, we must sit in judgment 

of the evidence, and the trial court's ruling carries no 

presumption of correctness.'"

American Res. Ins. Co. v. H & H Stephens Constr., Inc., 939 So. 2d 868, 

872-73 (Ala. 2006) (quoting Bean Dredging, L.L.C. v. Alabama Dep't of 

Revenue, 855 So. 2d 513, 516-17 (Ala. 2003)).

III. Analysis

On appeal, Helena reiterates the two main arguments it presented 

in the circuit court for why it believes the circuit court should have 

entered an injunction preventing the PBE from developing the property 

and operating the athletic field for the benefit of Pelham High School 
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students. First, Helena contends that § 16-11-9 does not grant the PBE 

authority to construct and operate an educational facility on property 

within the corporate limits of Helena that the PBE owns but that has not 

been annexed into Pelham's corporate limits. Second, Helena argues that 

the athletic-field project does not comply with Helena's zoning ordinance 

because it does not qualify as a "Planned Residential District" of a 

"Special District," and, it says, the "governmental-function" exemption to 

municipal-zoning ordinances applies only to a government entity 

"operating within the bounds of its own jurisdiction." Helena's brief, p. 

37. We address the two arguments in turn.

A. Does § 16-11-9 Prohibit the PBE's Athletic-Field Project?

Section 16-11-9 provides:

"The city board of education is hereby vested with all the 

powers necessary or proper for the administration and 

management of the free public schools within such city and 

adjacent territory to the city which has been annexed as a part 

of the school district which includes a city having a city board 

of education."

Helena contends that § 16-11-9 places a statutory restriction on

"the powers of a city board of education to the geographic 

limits of its district (or at least prohibit[s] their exercise 

within the city limits of another city that is in another school 

district). In Alabama Code § 16-11-9, ... the legislature has 

clearly and definitely defined those limits and determined 
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where a city board of education may exercise its powers: 

'within such city and adjacent territory to the city which has 

been annexed as part of the school district.'" 

Helena's brief, pp. 18-19 (footnote omitted). Helena notes that this Court 

has stated that "'[s]chool boards are, of course, creatures of statute.'" 

Marshall Cnty. Bd. of Educ. v. City of Albertville, 479 So. 2d 1127, 1129 

(Ala. 1985) (adopting trial court's order as the opinion of the Court). The 

Court also has indicated that "'creatures of statute ... "can exercise only 

that authority conferred on [them] by [the Legislature]." '" Brown v. Bd.

of Educ. of Montgomery, 863 So. 2d 73, 76 (Ala. 2003) (quoting Dillard v. 

Baldwin Cnty. Comm'n, 833 So. 2d 11, 16 (Ala. 2002), quoting in turn 

Jefferson Cnty. v. Johnson, 333 So. 2d 143, 145 (Ala. 1976)). Helena 

concludes that, because § 16-11-9 limits a city board of education's powers 

to the "city [in which it is located] and adjacent territory to the city which 

has been annexed as a part of the school district" and because Pelham 

has not annexed the property on which the athletic-field project is 

located, the PBE lacks authority to construct and operate the athletic 

field. 

In contrast, the PBE and the board members argue that § 16-11-9 

"confers managerial and administrative responsibilities on

boards of education with respect to public schools that are 
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located within the city. But nothing in the statute confines the 

managerial or administrative prerogatives of the [b]oard to 

actions or decisions that are conceptually, practically, or 

operationally restricted to territory within the corporate 

limits of the city. For example, boards of education can and do 

regularly recruit employees, pursue grants, attend training 

programs, and engage in athletic and academic activities 

outside the boundaries of the city, all undertaken and 

administratively approved for the benefit of the schools within 

the city. By the same token, nothing in the language of the 

statute limits the prerogative of the school board to acquire,

develop, or use property that lies outside the district in the 

service of schools that are within the district."

PBE & board members' brief, pp. 42-43 (footnote omitted). 

As we noted in the rendition of the facts, the circuit court agreed 

with the PBE and the board members, finding that "[s]ection 16-11-9 

describes the general administrative and managerial powers vested in 

city boards of education. The statute grants authority and it does not 

restrict authority." (Emphasis in original.) However, Helena contends 

that the circuit court's interpretation of § 16-11-9 "renders the limitation 

language meaningless and would leave city boards of education without 

geographic boundaries, as there is no other statutory provision that 

expressly defines the limits of a city school district." Helena's brief, p. 21. 

Helena's interpretation of § 16-11-9 does not comport with a 

straightforward or plausible reading of the text. See, e.g., DeKalb Cnty. 
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LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270, 275 (Ala. 1998) 

(observing that, "[i]n determining the meaning of a statute, this Court 

looks to the plain meaning of the words as written by the legislature" and 

that " '"where plain language is used a court is bound to interpret that 

language to mean exactly what it says" '" (quoting Blue Cross & Blue 

Shield v. Nielsen, 714 So. 2d 293, 296 (Ala. 1998), quoting in turn IMED 

Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992))).

The language "within such city and adjacent territory to the city which 

has been annexed as part of the school district" is a prepositional phrase 

that modifies the location "of the free public schools" for which a city 

board of education is granted "necessary or proper" administrative and 

management powers. See § 16-11-9. It does not modify the phrase "all the 

powers" that are vested in a city board of education, i.e., it does not

describe the territorial boundaries of the city board of education's powers. 

Specifically in this instance, § 16-11-9 grants the PBE "all the powers 

necessary or proper for the administration and management of" Pelham 

High School, which is located within the corporate limits of Pelham. 

Those powers obviously include the purchase of property, as § 16-11-12, 
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Ala. Code 1975, details,4 and, under the broad language of § 16-11-9 and

§ 16-11-9.1, Ala. Code 1975, with respect to a city board of education's 

powers,5 it also includes developing such property for the management of 

Pelham High School. Cf. Laidlaw Transit, Inc. v. Alabama Educ. Ass'n, 

769 So. 2d 872, 878 (Ala. 2000) (observing that "§§ 16-1-30, 16-11-2(a), 

16-11-9, and 16-11-9.1[, Ala. Code 1975,] confer broad authority on a city 

4Section 16-11-12, Ala. Code 1975, provides, in part:

"The city board of education shall have the full and 

exclusive rights within the revenue appropriated for such 

purposes, or accruing to the use of the public schools, to 

purchase real estate ... and to make expenditures for the 

maintenance and repairs of the school grounds, buildings and 

other property, ... to make additions, alterations and repairs 

to the building and other property erected for school uses, and 

to make necessary and proper notes, contracts and 

agreements in relation to such matters."

5Section 16-11-9.1, Ala. Code 1975, provides, in part: 

"In addition to all authority previously granted by 

statute, city boards of education ... may take such other 

actions as they deem necessary and appropriate for the proper 

management of the public schools; provided, however, that 

such agreements, projects, and programs shall not be in 

conflict with nor inconsistent with any law or policy of the 

State Board of Education and shall not conflict with the 

purposes for which the school system is established."

(Emphasis added.)
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school board to take any action it deems necessary and proper for the 

efficient administration and management of its school system"). Helena 

has not argued that the PBE lacked the power to purchase the property 

even though that property has not been annexed by Pelham, but its

interpretation of § 16-11-9 would dictate that the PBE lacks such power. 

Moreover, as the PBE and the board members note, employees of city 

boards of education take actions outside the territory of their schools all 

the time, including taking students on field trips, taking students to 

athletic competitions where other school systems are located, and 

participating in academic workshops outside city limits. If § 16-11-9 

restricted a city board of education's exercise of its powers to the territory 

in which that board's schools are located, then none of those activities 

seemingly would be permissible. 

The more straightforward reading of § 16-11-9 is that the 

prepositional phrase "within such city and adjacent territory to the city 

which has been annexed as part of the school district" simply describes 

the location of "the free public schools" for which a city board of education 

exercises its granted powers, not that it circumscribes the territory in 

which those powers are capable of being exercised. Section 16-11-9 
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empowers the PBE to have all the necessary and proper powers required 

to administer and manage Pelham High School and the other public 

schools located in the corporate limits of Pelham. The PBE believes that 

the development and use of the property for the benefit of Pelham High 

School students is proper for the management of Pelham High School. It 

is conceivable that the PBE could be mistaken in that belief, but Helena 

has not argued that the development and use of the property is not 

"necessary or proper" under § 16-11-9. Instead, Helena argues that the 

PBE's action violates § 16-11-9 only because the athletic field is not 

within territory that "has been annexed as part of the [Pelham] school 

district." But because § 16-11-9 does not set territorial limits on the PBE's 

powers, Helena's argument fails.6

6In support of its interpretation of § 16-11-9, Helena mentioned in 

its briefs and at oral argument the PBE's previous actions with respect 

to property on which Pelham High School's softball fields are located --

property that is also adjacent to Pelham High School and that was 

previously within Helena's corporate limits. In March 2015, Helena 

deannexed the property on which Pelham High School's softball fields are 

located, and in April 2015 Pelham annexed that property. Helena argues 

that the legal treatment of the softball fields demonstrates that § 16-11-

9 dictates that, before the PBE could develop and use the property

currently at issue, Helena would have to deannex the property so that 

Pelham could annex it. 
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B. Is the Athletic-Field Project Exempt from the Helena Zoning 

Ordinance?

Helena argues that even if § 16-11-9 does not restrict the PBE's 

authority to construct and operate the property, the PBE's actions are 

still prohibited by Helena's zoning ordinance. The parties stipulated that 

the property is zoned as a "Special District -- Planned Residential 

District." Helena Zoning Ordinance, Art. XXIV, § 1, designates "special 

districts" as those "authorized for the purpose of providing optional 

methods of land development, which encourages imaginative solutions to 

environmental design problems." Specifically with respect to Special 

Planned Residential Districts, Art. XXIV, § 3.1, provides that "[t]he 

However, Helena leaves out the fact that the softball-fields property 

had been owned and operated by Pelham High School for 14 years before 

it was annexed by Pelham. As a March 23, 2015, letter from the PBE to 

Pelham's mayor and city council explained, "[t]he parcel was acquired in 

2001 for the high school softball and practice fields." Even accounting for 

the fact that the PBE was established in 2013, and that, thus, before that 

Pelham students were served by the SCBE, no one suggested that the 

PBE lacked the power to own and operate the Pelham High School 

softball fields before the deannexation of that property by Helena and the 

annexation of that property by Pelham.

If anything, the situation with the softball fields represents an 

example of what occurs when governmental entities cooperate with 

respect to real-property disputes, not what § 16-11-9 requires for a city 

board of education to exercise its powers.
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regulations established in this section are intended to provide optional 

methods of land development with provisions for commercial, religious, 

educational and cultural facilities, which are integrated with the total 

project by unified architectural and open space treatment." The PBE and 

the board members emphasize that Art. XXIV, § 3.2.6, expressly provides 

that "Educational Uses" are permitted in Special Planned Residential 

Districts. Helena emphasizes that Art. XXIV, § 1.2, provides that "[t]he 

establishment of a Special District will be for the express purpose of 

improving the tract of land in accordance with the approved plan of 

development for the particular tract of land and for the use set forth in 

the development plan." When the property was rezoned in 2018 as a 

Special Planned Residential District, the approved development plan was 

for a 206-lot residential subdivision; educational uses were not in the 

development plan. However, the property was never developed in 

accordance with that development plan because the property went into 

foreclosure; it was then purchased by the PBE from First Bank of 

Alabama. Nonetheless, Helena contends that, because a new 

development plan has not been adopted by the Helena Zoning Board, the 
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PBE's use for the property is not permitted under Helena's zoning 

ordinance.

The PBE and the board members do not directly challenge Helena's 

argument that the athletic-field project violates Helena's zoning 

ordinance. Instead, they note that it is "well-settled law [that] a city's 

zoning ordinances do not apply to a city board of education when the 

board of education is engaging in a 'governmental function.'" PBE & 

board members' brief, p. 20. 

"'It was once "well settled that city zoning ordinances 

[did] not apply to the operation of a governmental function by 

a governing body, as opposed to a proprietary function." Lane 

v. Zoning Bd. of Talladega, 669 So. 2d 958, 959 (Ala. Civ. App. 

1995) (emphasis added). See City of Birmingham v. Scogin, 

269 Ala. 679, 690, 115 So. 2d 505, 514 (1959) ("The Alabama 

cases have long held that zoning does not apply to the 

operation of a governmental function by a municipality."); 

Lauderdale County Bd. of Educ. v. Alexander, 269 Ala. 79, 86, 

110 So. 2d 911, 918 (1959) ("If a city engaged in a 

governmental function is not subject to its own zoning 

regulations, certainly a county engaged in a governmental 

function is not subject to a city's zoning regulations."); Water 

Works Bd. of Birmingham v. Stephens, 262 Ala. 203, 78 So. 

2d 267 (1955); Alabama Alcoholic Beverage Control Bd. v. 

City of Birmingham, 253 Ala. 402, 44 So. 2d 593 (1950). "'This 

distinction is of ancient vintage ....'" Cunningham v. City of 

Attalla, 918 So. 2d 119, 125 (Ala. Civ. App. 2005) (quoting 2 

Kenneth H. Young, Anderson's American Law of Zoning § 

12.03 (4th ed. 1996)).'"
SC-2023-0516

24

Barnes, 375 So. 3d at 12 (quoting City of Selma, 964 So. 2d at 16).7 In 

Alves v. Board of Education for Guntersville, 922 So. 2d 129, 133 (Ala. 

Civ. App. 2005), the Court of Civil Appeals helpfully explained the 

governmental function/proprietary function distinction in a context 

similar to this one:

"'A function is a governmental function if it is the means 

by which the governing entity exercises the sovereign power 

for the benefit of all citizens.' Lane v. Zoning Bd. of 

Adjustment of Talladega, 669 So. 2d 958, 959-60 (Ala. Civ.

App. 1995) (citing Hilliard v. City of Huntsville, 585 So. 2d 

889, 890 (Ala. 1991)). A public body, such as, in the instant 

case, a city board of education, engaging in a governmental 

function, as opposed to a propriety function, is not subject to 

a city's zoning ordinances. City of Birmingham v. Scogin, 269 

Ala. 679, 691, 115 So. 2d 505, 514 (1959) (citing Lauderdale 

County Bd. of Educ. v. Alexander, 269 Ala. 79, 110 So. 2d 911 

(1959); Alabama Alcoholic Beverage Control Bd. v. City of 

Birmingham, 253 Ala. 402, 44 So. 2d 593 (1950); and Water 

Works Bd. of Birmingham v. Stephens, 262 Ala. 203, 78 So.

2d 267 (1955)); see also Cunningham v. City of Attalla, 918 

So. 2d 119 (Ala. Civ. App. 2005); and Lane v. Zoning Bd. of 

Adjustment of Talladega, 669 So. 2d at 959."

(Footnote omitted; emphasis added.)

As we noted in the rendition of the facts, Helena does not dispute 

that the athletic-field project generally would be considered a 

7In Barnes, this Court noted that in City of Selma the Court had 

"conclud[ed] that municipalities still were immune from zoning 

ordinances when performing a governmental function." 375 So. 3d at 13.
SC-2023-0516

25

governmental function. It contends, however, that the athletic-field 

project is not a lawful governmental function in this case because, it says,

"for a governmental entity to qualify for the governmental 

function exception, it must first demonstrate that it has the 

authority to use the property as it proposes. ... For the 

governmental function exception to have any application, the 

government seeking the exception must first be operating 

within the bounds of its own jurisdiction. See, e.g., City of 

Selma v. Dallas County, 964 So. 2d 12, 19 (Ala. 2007)."

Helena's brief, pp. 36-37. Helena further argues that "[t]o hold otherwise 

-- to hold that one government entity can simply override and ignore the 

sovereignty and zoning ordinances of another government entity through 

a mere private purchase transaction -- would amount to permitting 

functional, hostile annexation by mere purchase of property." Id., pp. 37-

38. Helena emphasizes that point by asserting that "[t]his Court has 

never extended the governmental function exemption to instances where 

one city government unit is operating outside its boundaries and 

statutory authority." Id., p. 39 (emphasis added). 

That last argument provides a hint as to why Helena's argument is 

flawed. Helena repeatedly frames the situation in this case as one 

involving one municipal-government entity -- Pelham -- encroaching 
SC-2023-0516

26

upon the power of another municipal-government entity -- Helena. For 

example, Helena argues:

"Municipalities have only those powers delegated to them by 

the Alabama Legislature, and the Legislature has placed 

territorial limits on that power. Else, there would be conflict 

among adjacent municipalities all over the State. To avoid 

this chaos, the Legislature has provided that a city school 

district may exercise its statutory powers inside its district 

and the corporate limits of its sponsoring city."

Helena's brief, pp. 15-16.8

But the situation presented in this case does not pit one 

municipality against another municipality. Public education is a power 

belonging to the State that is granted in the Alabama Constitution. See 

Art. XIV, § 256, Ala. Const. 2022;9 see also State Tax Comm'n v. Board of 

8The amicus curiae brief on behalf of Helena submitted by the 

Alabama Free and Fair Enterprise Institute ("AFFEI") frames the 

situation the same way: "A necessary corollary to this rule [the rule that 

the powers of a municipal corporation are limited by its boundaries and 

cannot be exercised outside of them] is that two co-equal municipalities 

cannot have municipal jurisdiction over the same property at the same 

time." AFFEI's brief, p. 7.

9Article XIV, § 256, Ala. Const. 2022, provides:

"It is the policy of the state of Alabama to foster and 

promote the education of its citizens in a manner and extent 

consistent with its available resources, and the willingness 

and ability of the individual student, but nothing in this 

Constitution shall be construed as creating or recognizing any 
SC-2023-0516

27

Educ. of Jefferson Cnty., 235 Ala. 388, 393, 179 So. 197, 200 (1938) 

(recognizing that "[w]ithout question the Legislature has plenary power 

to devise and set up a system of public schools. Section 256 is a 

constitutional mandate to that end."). Consequently, in their governance 

of public education, boards of education are independent of the counties 

and the municipalities in which they are located. "Like county school 

boards, [city boards of education] are agencies of the state, empowered to 

administer public education within the cities. As such, a city school board 

is not a subdivision or agency of the municipal government." Enterprise 

City Bd. of Educ. v. Miller, 348 So. 2d 782, 783 (Ala. 1977). See also W.R. 

right to education or training at public expense, nor as 

limiting the authority and duty of the legislature in furthering 

or providing for education.

"The legislature may by law provide for or authorize the 

establishment and operation of schools by such persons, 

agencies or municipalities, at such places, and upon such 

conditions as it may prescribe, and for the grant or loan of 

public funds and the lease, sale or donation of real or personal 

property to or for the benefit of citizens of the state for 

educational purposes under such circumstances and upon 

such conditions as it shall prescribe. Real property owned by 

the state or any municipality shall not be donated for 

educational purposes except to nonprofit charitable or 

eleemosynary corporations or associations organized under 

the laws of the state."
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28

Meriwether, Factors & Drayage, LLC v. Pike Rd. Volunteer Fire Prot. 

Auth., 291 So. 3d 1178, 1181 (Ala. 2019) ("Notably, county and city boards 

of education have been described as 'agencies of the state.' Enterprise 

City Bd. of Educ. v. Miller, 348 So. 2d 782, 783 (Ala. 1977)."); Ex parte 

Phenix City Bd. of Educ., 67 So. 3d 56, 60 (Ala. 2011) ("City boards of 

education are local agencies of the State ...."); Hutt v. Etowah Cnty. Bd. 

of Educ., 454 So. 2d 973, 974 & n.2 (Ala. 1984) (stating that "municipal 

boards of education are not agencies of municipalities, but agencies of the 

state, 'empowered to administer public education within the cities[,]' 

Enterprise City Board of Education v. Miller, 348 So. 2d at 783, 784," and 

making the same observation about county boards of education -- "[t]hey 

execute a state function -- not a county function -- namely, education");

Day v. Andrews, 279 Ala. 563, 565, 188 So. 2d 523, 525-26 (1966) ("A 

reading of the entire provisions concerning the appointing and 

functioning of city boards of education shows beyond per adventure that 

the legislative purpose was to invest in boards of education, when duly 

and legally selected, the authority to act as free and independent agencies 

of the city in the operation of the city school systems, free of interference 

by the governing bodies which may have appointed the members.");
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29

Alves, 922 So. 2d at 133 n.3 ("City boards of education are authorized 

pursuant to § 16-11-1 et seq., Ala. Code 1975. They are agencies of the 

state empowered to administer public education within the cities; they 

are not subdivisions or agencies of local municipal governments."). Thus, 

as a city board of education, the PBE acts, first and foremost, on behalf 

of the State to carry out the State's power to provide public education of 

students; it is not acting at the behest of Pelham. 

A city board of education's independence from the municipality with 

which it is associated is illustrated in Alves. Alves involved a situation in 

which the Board of Education for the City of Guntersville ("the 

Guntersville Board of Education") owned land within the corporate limits 

of the City of Guntersville ("Guntersville") on which it wished to construct 

a new middle school. The property was zoned by Guntersville as "'R-2 

(single-family residential district),'" but the Board of Adjustment for the 

City of Guntersville ("the Guntersville Zoning Board") was permitted to 

provide a "'special exemption use' ... for certain public and semi-public 

uses, including public schools." 922 So. 2d at 130. The Guntersville 

Zoning Board granted the special exemption, but several residents in the 

area objected to that decision, and they appealed the exemption decision
SC-2023-0516

30

to the Marshall Circuit Court. The Guntersville Board of Education was 

permitted to intervene in the appeal, and it contended that it was 

"engaging in a governmental function in choosing the location for the 

public school and that, therefore, the [Guntersville] Zoning Board did not 

possess the authority to enforce the city's zoning ordinance to prevent the 

[Guntersville] Board of Education from constructing the school at the 

proposed site." Id. at 131. The residents responded by arguing, among 

other things, that "the city had the authority to enact zoning ordinances 

regarding the location for public schools pursuant to its general zoning 

powers under § 11-52-70, Ala. Code 1975 (which grants municipalities 

the authority to enact zoning ordinances within their corporate limits)." 

Id. at 131-32. The trial court concluded that the Guntersville Board of 

Education was engaging in a governmental function and that, therefore, 

the Guntersville Zoning Board lacked authority to enforce the zoning 

ordinance against the Guntersville Board of Education. On appeal, the 

Court of Civil Appeals, relying upon Lauderdale County Board of 

Education v. Alexander, 269 Ala. 79, 110 So. 2d 911 (1959), agreed with 

the trial court, concluding that 

"the [Guntersville] Board of Education's choice of the location 

for the public school is a governmental function. Accordingly, 
SC-2023-0516

31

we must conclude that the [Guntersville] Zoning Board does 

not possess the authority to enforce the city's zoning 

ordinance against the [Guntersville] Board of Education 

regarding the [Guntersville] Board of Education's choice of 

location for the public school."

Id. at 133-34. As the PBE and the board members note in their brief, "the 

Court in Alves applied the general rule [that governmental functions are 

exempt from local zoning ordinances] to authorize a city board of 

education to construct a proposed school in a location that violated the 

zoning ordinance enacted by the very body that created the school board." 

PBE & board members' brief, p. 27. The Court of Civil Appeals could 

reach that conclusion because the Guntersville Board of Education is a 

local State agency for exercising the power of educating students, a State 

power independent of Guntersville.

The case upon which the Alves Court relied in reaching its 

conclusion, Lauderdale County Board of Education, demonstrates the 

same point. In that case, the Lauderdale County Board of Education ("the 

Lauderdale County Board") owned certain real property within the 

corporate limits of the City of Florence ("Florence"), and it desired to build 

on that property "a 'County Barn,' wherein [the Lauderdale County 

Board sought] to store school buses, coal supplies, school supplies, and 
SC-2023-0516

32

establish a repair and maintenance shop for the Lauderdale County, 

Alabama, school system." 269 Ala. at 83, 110 So. 2d at 914. Some 

residents within the corporate limits of Florence whose homes were 

"immediately behind or adjoining" the property on which the Lauderdale 

County Board sought to build the "County Barn" filed a complaint 

seeking an injunction to stop the construction, arguing that the project 

violated Florence's zoning ordinance because the property was zoned for 

residential use. Id. This Court sided with the Lauderdale County Board:

"The final question is whether a county board of 

education actively engaged in the pursuance of the 

construction of a 'County Barn' is subject to a zoning 

ordinance of a municipal corporation. [The Lauderdale 

County Board] contend[s] that the zoning ordinances of a 

municipal corporation cannot be enforced to prohibit [it] from 

constructing and operating the facility in question in the 

zoned residential district. We agree with this contention. The 

zoning ordinance in the instant case may, or may not, be 

evidence of the nature of the locality involved.

"We have held that when a city is engaged in a 

proprietary business, it is subject to its own zoning 

regulations; but that when engaged in a governmental 

function, it is not subject to its own zoning regulations. 

Jefferson County v. City of Birmingham, 256 Ala. 436, 55 So. 

2d 196 [(1951)]; Alabama Alcoholic Beverage Control Board v. 

City of Birmingham, 253 Ala. 402, 44 So. 2d 593 [(1950)]. See 

62 C.J.S. Municipal Corporations § 226(16)(c); 58 Am. Jur., 

Zoning, § 120. We have said that the county board of 

education is acting in a quasi-legislative capacity when it 

locates consolidated schools and provides for the 
SC-2023-0516

33

transportation of pupils as a part of the system. Shores v. 

Elmore County Board of Education, 241 Ala. 464, 3 So. 2d 14

[(1941)]. If a city engaged in a governmental function is not 

subject to its own zoning regulations, certainly a county 

engaged in a governmental function is not subject to a city's 

zoning regulations. The construction and operation of a 

'County Barn' as heretofore described is a governmental 

function of a county board of education."

269 Ala. at 86-87, 110 So. 2d at 917-18 (emphasis added).

As the PBE and the board members observe in their brief, the Court 

concluded that the governmental-function exemption applied to the 

Lauderdale County Board's construction of the school facility even 

though the property in question was located within the corporate limits 

of Florence, which was outside the Lauderdale County Board's school

district because students in the corporate limits of Florence were served 

by the Florence City Schools Board of Education. Likewise, the 

Lauderdale County Board played no role in devising or modifying 

Florence's zoning ordinance, yet the Court concluded that the 

governmental-function exemption applied to the Lauderdale County 

Board's construction of a school facility within the corporate limits of 

Florence. That conclusion was appropriate because the Lauderdale 

County Board was exercising a State power for the benefit of educating 

students served by the Lauderdale County Board.
SC-2023-0516

34

Helena attempts to distinguish Alves and Lauderdale County 

Board of Education on the basis that the boards of education in each of 

those cases were located in the same geographic jurisdictions as the 

municipalities with the relevant zoning ordinances.

"Unlike the application of the exemption in Alves and 

Lauderdale to either the boards of education's own 

municipality or a municipality of concurrent jurisdiction, no 

Alabama court has demonstrated an extension of this 

exemption to a body operating in a competing jurisdiction:

"....

"' [A] ... question arises when two governing units 

of the same class, occupying the same sphere of 

government, undertake to exercise jurisdiction at 

the same time over the same territory and 

inhabitants thereof. This court has settled the 

question, in accordance with obvious reason, that 

two municipalities cannot exist over the same 

territory at the same time.' 

"City of Homewood v. Wofford Oil Co., 169 So. 288, 289 (Ala. 

1936) (emphasis added) (cleaned up)."

Helena's reply brief, pp. 18-19. Helena asserts that this understanding of 

the governmental-function exemption "is common legal and democratic 

sense" because it "is predicated on the reality that a government 

operating within its own jurisdiction has the power to set its own zoning 

rules, and thus to exempt itself from its own zoning rules." Helena's brief, 
SC-2023-0516

35

p. 38. Helena repeats that theory in its reply brief, stating that the 

governmental-function

"exemption is directly implied by a city's sovereignty within 

its own territorial boundaries -- a city has the power to set or 

amend its own zoning rules in the interest of its citizens, and 

its decision not to comply with one of them is presumed to be 

an exercise of that same sovereignty on behalf of the same 

public interest protected by the zoning rules."

Helena's reply brief, p. 14.

However, as our discussion of Alves and Lauderdale County Board 

of Education shows, Helena misunderstands the situations in those 

cases. In Alves, the Guntersville Board of Education was not the same 

government entity as Guntersville. In Lauderdale County Board of 

Education, the Lauderdale County Board did not serve the same school

district as Florence. The application of the governmental-function 

exemption in those cases did not constitute situations in which the 

municipalities were granting themselves exemptions from their own 

zoning rules. Instead, both the Guntersville Board of Education and the 

Lauderdale County Board were local State agencies empowered to 

administer public education on behalf of the State, not subdivisions or 

agencies of Guntersville or Florence, respectively. Likewise, the PBE's

constructing and operating an athletic field and parking lot within 
SC-2023-0516

36

Helena's corporate limits does not constitute a second municipality's

operating in the first municipality's territory. It constitutes the State

operating in Helena's territory for the benefit of Alabama students 

educated by the PBE that live within the corporate limits of Pelham.10

Helena appears to briefly argue that the fact that the PBE is a local 

State agency is immaterial because "Helena is also a creature and agency 

of the State." Helena's brief, p. 24. See, e.g., State v. City of Birmingham, 

299 So. 3d 220, 228 (Ala. 2019) (stating that it is a "well settled principle 

that '[m]unicipalities are but subordinate departments of state 

government.' Alexander v. State ex rel. Carver, 274 Ala. 441, 443, 150 So. 

10We note that, despite the number of times Helena repeats its 

contention that "[f]or the governmental function exemption to have any 

application, the government seeking the exemption must first be 

operating within the bounds of its own jurisdiction," Helena cites no 

relevant Alabama authority to support that proposition. Helena's brief, 

p. 37; see also Helena's reply brief, p. 17. Helena cites City of Selma v. 

Dallas County, 964 So. 2d 12, 19 (Ala. 2007), for its proposition, see id., 

but City of Selma does not say that, and Helena notably does not quote

any language from the case that even implies it. Instead of relying on 

Alabama authorities, Helena repeatedly quotes from a Florida case in 

support of its position. See Orange Cnty. v. City of Apopka, 299 So. 2d 

652, 654-55 (Fla. Dist. Ct. App. 1974). But Orange County did not apply 

the governmental-function/proprietary-function test; it applied a 

"balancing-of-public-interests" test. Helena has not asked us to overrule 

our cases applying the governmental-function test, so Orange County is 

inapposite.
SC-2023-0516

37

2d 204, 206 (1963)."); City of Bessemer v. Personnel Bd. for Jefferson 

Cnty., 240 Ala. 411, 413, 199 So. 815, 816 (1941) ("A city is a political

subdivision of the state created as a convenient agency for the exercise of 

such governmental powers of the state as may be intrusted to it.").

However, as we already have discussed, boards of education "execute a 

state function -- not a county [or municipal] function -- namely, 

education." Hutt, 454 So. 2d at 974. In contrast, zoning is a delegated 

municipal function limited to municipal boundaries. See, e.g., Gibbons v. 

Town of Vincent, 124 So. 3d 723, 731 (Ala. 2012) ("Section 11-52-70, Ala.

Code 1975, allows a municipality to adopt 'such ordinances as necessary 

to carry into effect and make effective the provisions of this article,'

thereby vesting the municipality with the legislative authority to zone 

land within its corporate boundaries."). Being a political subdivision of 

the State -- as is Helena-- is different in character than being "an 

independent agency of the state," as is the PBE. Turk v. Board of Educ. 

of Monroe Cnty., 222 Ala. 177, 177, 131 So. 436, 437 (1930). "[A] town or 

city is a voluntary association created and built upon the voluntary 

assent of the community and its citizens, and enjoys the privileges and 

rights given in its charter of creation and the laws governing the same." 
SC-2023-0516

38

Montgomery v. City of Athens, 229 Ala. 149, 152, 155 So. 551, 553 (1934). 

Accordingly, the reach of a city's zoning powers is different than a board 

of education's exercise of power involving education, which is done by the 

will of the State. See Laidlaw Transit, 769 So. 2d at 877 ("These statutes 

confer broad power on a city board of education to take those steps it 

deems necessary to properly educate the children under its charge. The 

granting of such broad power to a city school board is consistent with,

and indicative of, the Legislature's comprehensive approach to education 

in Alabama -- an approach that focuses on the achievement of academic 

excellence."); Clark v. Jefferson Cnty. Bd. of Educ., 410 So. 2d 23, 27 (Ala. 

1982) ("The legislature has made broad grants of authority to the 

Alabama State Board of Education, the Alabama State Department of 

Education and to the individual county boards of education to administer 

and supervise the public schools.").11

11The difference between the PBE as an agency of the State and 

Helena as a local political subdivision is reflected in the fact that school 

boards have Article I, § 14, immunity, but municipalities do not. See, e.g., 

Ex parte Phenix City Bd. of Educ., 67 So. 3d 56, 60 (Ala. 2011) ("City 

boards of education are local agencies of the State; therefore, they enjoy 

constitutional immunity from tort actions alleging negligent entrustment 

and asserting claims of loss of services."); Ex parte City of Tuskegee, 932 

So. 2d 895, 901 n.3 (Ala. 2005) ("Absolute immunity does not extend to 

municipalities or its agents."); Health Care Auth. for Baptist Health v. 
SC-2023-0516

39

In short, the governmental-function exemption from municipal 

zoning ordinances is not based on geographic location; rather, it is based 

upon the power that is being exercised. As the PBE and the board 

members explain: "[T]he exemption from local zoning codes that applies 

to governmental agencies like the [PBE] stems from the nature of the 

proposed land use as a governmental function." PBE & board members'

brief, p. 29. The power exercised in this case, public education, is 

unquestionably a governmental function, rather than a proprietary 

function -- a fact that Helena has never challenged -- and it is a power 

that belongs to the State, rather than to a municipality. Therefore, the 

PBE's power to construct and operate the athletic field is not constrained 

by the fact that the property is within the corporate limits of Helena, and 

the athletic-field project is exempt from Helena's zoning ordinance.12

Davis, 158 So. 3d 397, 408-09 (Ala. 2013) ("[N]either counties nor 

municipalities nor private entities are part of the State or enjoy State 

immunity."). See generally Ex parte Tuscaloosa Cnty., 796 So. 2d 1100, 

1103 (Ala. 2000) ("Under Ala. Const. of 1901, § 14, the State of Alabama 

has absolute immunity from lawsuits. This absolute immunity extends 

to arms or agencies of the state, ... but generally does not extend ... to 

municipalities or municipal agencies ....").

12Our conclusion that Helena was not entitled to an injunction as a 

matter of law pretermits any need to evaluate the parties' arguments 
SC-2023-0516

40

Aside from Helena's two primary arguments that we have 

addressed in this opinion, Helena also advances public-policy arguments 

that, it says, warrant limiting a city board of education's powers to a city's 

geographic territory. Specifically, Helena argues that a ruling in the 

PBE's favor will cause "conflict and chaos among adjacent municipalities 

and their boards of education across the state," and it posits that, if we 

affirm the circuit court's order, hypothetically "the Hoover Board of 

Education could conduct operations in Vestavia, the Montgomery Board 

of Education could conduct operations in Prattville, the Ozark Board of 

Education could conduct operations in Dothan, and the Prichard Board 

of Education could conduct operations in Mobile." Helena's reply brief, 

pp. 10-11. Such potential public-policy consequences undoubtedly explain 

why the circuit court in its July 5, 2023, order expressed the view that 

"the law limiting a municipality['s] right to govern and control 

the use of land in its own borders should be revisited by the 

Alabama Legislature .... The law, as written, inevitably 

undermines the spirit of cooperation between government 

entities in pursuit of the common function of educating 

children."

concerning whether the prerequisites for an injunction support Helena 

or the PBE and the board members.
SC-2023-0516

41

As the circuit court correctly noted, however, "the function of the Court 

is to apply the law." If our straightforward application of the law produces 

undesirable policy consequences, it is the responsibility of the 

Legislature, rather than this Court, to alter the law. See, e.g., Boles v. 

Parris, 952 So. 2d 364, 367 (Ala. 2006) ("[I]t is well established that the 

legislature, and not this Court, has the exclusive domain to formulate 

public policy in Alabama.").

IV. Conclusion

Section 16-11-9 does not inhibit the PBE's authority to construct 

and operate an educational facility on the property because that statute 

does not restrict a city board of education's powers of administration and 

management of its public schools to the geographic boundaries of the city 

it serves or to the territory annexed by that city. Moreover, Helena's 

zoning ordinance cannot be enforced against the athletic-field project 

because the PBE's construction and operation of the athletic field 

constitutes a State governmental function -- public education -- that is 

exempt from the application of municipal zoning ordinances. Accordingly, 

the circuit court did not err in declaring that the PBE had the authority 

to acquire, develop, and use the property for the athletic-field project and 
SC-2023-0516

42

in ordering Helena not to enforce its zoning ordinance to prevent the 

development or use of the athletic field. Therefore, we affirm the circuit 

court's July 5, 2023, order.

AFFIRMED.

Parker, C.J., and Mendheim, Stewart, and Mitchell, JJ., concur.

Shaw, J., concurs specially, with opinion.

Sellers, J., dissents, with opinion, which Wise and Bryan, JJ., join.

Cook, J., recuses himself.
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SHAW, Justice (concurring specially).

I concur fully with the main opinion. I write specially to note the 

following.

A city board of education is a separate entity from a city; while it is 

responsible for the administration of the public schools within the 

boundaries of a city, it is an agency of the State and is not a part of that 

city's government. See Ex parte Bessemer City Bd. of Educ., 143 So. 3d 

726, 728 (Ala. 2013). Thus, as the main opinion stresses, we cannot 

conflate the Pelham Board of Education with the City of Pelham, or a city 

board of education's powers with the powers of a city or the ability of a 

city to operate outside its geographical limits. 

Section 16-11-9, Ala. Code 1975, provides:

"The city board of education is hereby vested with all the 

powers necessary or proper for the administration and 

management of the free public schools within such city and 

adjacent territory to the city which has been annexed as a part 

of the school district which includes a city having a city board 

of education." 

Under this Code section, a city board of education is granted 

"powers." Those "powers" include any that are "necessary or proper for 

... administration and management." The objects to be administered and 
SC-2023-0516

44

managed are the "free public schools." The "free public schools" for which 

the powers are exercised are those "within such city," that is, the schools 

of a city board of education.13 Stated simply, the Code section says that 

a city board of education has all powers needed to appropriately 

administer and manage the city board of education's schools.

The "public schools within such city" are the things to which the 

powers are to be directed, not a limitation regarding where the powers 

may be exercised. While, in many cases, the powers would be exercised 

at the location of the schools, those powers are not so constrained. 

Numerous activities related to the "administration and management of 

the free public schools within [a] city" occur outside the premises of 

"public schools," and they can certainly occur outside the city's 

boundaries. Those activities, like seasonal sports tournaments, art 

performances, academic exercises, and graduation ceremonies, might be 

temporary or might not require permanent, fixed locations. But if those 

13The phrase "and adjacent territory to the city which has been 

annexed as a part of the school district which includes a city having a city 

board of education" appears to refer to the situation in which a city that 

has a city board of education has "annexed" property that was part of a 

county school system, thereby expanding the city's boundaries. See § 16-

8-20, Ala. Code 1975.
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45

powers can be exercised outside of the city's boundaries temporarily and 

at different places, then those powers can be exercised in more 

permanent ways at fixed locations. This case is about where acts 

concerning the administration and management of public schools can 

occur. While the locations of those public schools are fixed -- "within such 

city" -- the Code section does not suggest that powers exercised in relation 

to the administration and management of those schools within the city's 

boundaries are similarly fixed. 
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SELLERS, Justice (dissenting).

The Pelham Board of Education ("the PBE") does not have the 

power under § 16-11-9, Ala. Code 1975, to construct and use the athletic 

field and parking lot ("the athletic-field project") on the real property in 

dispute here without the property first being annexed by the City of 

Pelham ("Pelham") as part of the Pelham school district. As the main 

opinion points out, the PBE is a city board of education that serves 

students in the corporate limits of Pelham under the authority of § 16-

11-1 et seq., Ala. Code 1975. The PBE purchased the subject property, 

which is located within the corporate limits of the City of Helena 

("Helena"), for the purpose of developing and operating the athletic-field 

project, which will serve the students at Pelham High School. See § 16-

11-12, Ala. Code 1975 (granting a city board of education the power to 

purchase real estate for the use of public schools). The property, however, 

has not been annexed by Pelham as part of the Pelham school district. 

Section 16-11-9, the general statute at issue, provides that a city board 

of education, such as the PBE, is "vested with all the powers necessary 

or proper for the administration and management of the free public 

schools within such city and adjacent territory to the city which has been 
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annexed as a part of the school district ...." (Emphasis added.) Implicit 

in § 16-11-9 is the understanding that the PBE's power to administer and 

manage Pelham High School extends to the development and operation 

of additional structures related to school uses, such as the athletic-field 

project. Because the PBE will be tasked with the administration and 

management of the athletic-field project, the property on which the 

project is located must be annexed by Pelham as part of the Pelham 

school district. Thus, § 16-11-9 specifically limits a city board of 

education's powers of administration and management of its public 

schools to the geographic boundaries of the city it serves or to adjacent 

territory that has been annexed by the city as part of its school district. 

That is the only way to read the statute, because to construe it otherwise 

would allow the precise controversy that has evolved between Helena and 

the PBE, by giving absolute authority to a city board of education without 

any regard or deference to an adjacent city. Annexation, on the other 

hand, affords an orderly process, respecting the territorial rights of both 

the citizens served by the school board and the citizens of the adjacent 

city. School boards, like numerous other governmental entities, are 

defined by geographic boundaries. For example, § 16-11-2(b), Ala. Code 
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1975, requires that members of a city board of education be residents of 

the city the board serves. And, although there is no specific statute 

requiring parents to send their children to a particular public school, it 

is generally understood that children are required to attend schools in 

the school district in which they live. See § 16-11-16(a), Ala Code 1975 

("The city board of education shall have the power to establish and 

maintain a system of public schools ... for the benefit of children who are 

bona fide residents of and living within the corporate limits of such city."), 

and Alabama State Dep't of Education, Alabama Attendance Manual 

2023-2024 at 10 ("the Manual") ("The county or city superintendent shall 

recommend a plan for identifying local attendance districts and shall 

submit this plan for approval and adoption by the county or city board of 

education. Students shall be assigned to the schools within the 

attendance district according to local board policies, court order or 

applicable state laws, and/or State Board of Education mandates.").14 It 

is incongruent, on the one hand, to require children to attend public 

14It appears that the Manual is public record of which this Court 

may take judicial knowledge. See Swindle v. Remington, 291 So. 3d 439, 

450 n.5 (Ala. 2019) ("[T]his Court may take judicial notice of a matter of 

public record."). 
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schools based on the geographic location of their residence while, on the 

other hand, allowing a city board of education to acquire and develop for 

school use property in an adjacent city without regard to the board's 

geographic boundaries or the land-use regulations of the adjacent city. 

Because I believe that § 16-11-9 generally defines the geographic limits 

within which a city board of education can exercise its powers, I 

respectfully dissent. I would reverse the judgment of the trial court and 

hold that § 16-11-9 prohibits the development and use of the athletic-field 

project on real property within the corporate limits of Helena that has 

not been annexed by Pelham as part of the Pelham school district. I am 

concerned that the main opinion gives a city board of education the ability 

to purchase and use property anywhere in Alabama, with the sole 

limitation being that it serve only those students living within the 

geographic boundaries of the city of its formation. Reading the statutes 

governing city boards of education together leads only to one conclusion: 

a city board of education is limited to using property within the 

geographic boundaries of the city of its formation in order to serve the 

students living within those boundaries. If a city board of education 

needs to expand and use property not located within those geographic 
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boundaries, § 16-11-9 requires that such additional property must be 

annexed into the city before the city board of education may use it. 

Wise and Bryan, JJ., concur.