As you are aware, our clients, Josephine and .Joe Story are homeowners in that exclusive and over-priced 30 acre planned community overlooking the Goode Bayou in the city of Mobile, Alabama, called Mobile Homes. Mobile Homes was developed in 1970 by Oliver Wendell and his Oliver Wendell Homes Development Company who originally owned all 30 acres. The lots in Mobile Homes were numbered 1-30 consecutively with lots 1-10 facing the bayou, lots 11-20 immediately behind them, and lots 21-30 in a third row on a slight hill in back. Lots 1-10 and 21-30 have views of the Goode Bayou and were sold in 1970-75.

The deeds to lots i-10 and 21-30 all contained the following language: "By this document, the grantee hereby grants to the grantor. (1) the right to place utility wires across the grantee's lot; (2) the right to prevent the grantee from using his property for any nonresidential purpose." Those deeds were signed by both the grantee and grantor. Over the period 1977-1980, the Oliver. Wendell Homes Development Company sold the non-view lots, 11-20, for a lesser price. Those ten deeds contained only the first of the two restrictions (i.e. about utility poles). All deeds were duly and promptly recorded with the county.

Our clients, Josephine and Joe Story purchased lot 7 in 1985 from Jeanne Marshall by quitclaim deed who bought lot 7 by warranty deed from the Oliver Wendell Homes Development Company in 1973. The current owner of lot 17 is Felice Frankfurter. Felice Frankfurter has owned lot 17 since 1984 when she purchased it by warranty deed from Louise Brandeis, the original buyer from Oliver Wendell Homes Development Company in 1979.

In 1990, the city of Mobile hela public hearings in which experts testified that childcare facilities are necessary to permit working parents to maintain their employment, particularly in the current economic recession. Moreover, expert`, agreed that the most convenient and affordable childcare facilities were located in the parent's own neighborhood. Consequently, in 1991 the city of Mobile amended its zoning code to read:

"Whereas, the city of Mobile wishes to encourage adequate, convenient and affordable child day-care facilities since such facilities are a necessary part of modern life;
"Therefore, child day-care facilities operating in private residences are exempt from all governmental requirements such as licensing, mandatory insurance and public land-use planning restrictions."