Longstanding litigation between developer Charles “Buddy” Breland and the city of Fairhope over a tract of land in Battles Wharf is again generating controversy as neighbors and environmental groups renew the fight over whether wetlands there should be filled in.
In a normal executive session to discuss pending litigation, a city council is not obliged to name the case or cases that might be discussed. The logic is such sessions are closed to the public under same rules that apply to attorney-client privilege.
But as the April 10 Fairhope City Council meeting carried on, it became clear most of the spectators knew well which case was up for a legal discussion that night, and a lot of them wanted to say their piece before officials and lawyers went behind closed doors.
They wanted the council to know they’re still opposed to the idea of filling in about 10.5 acres of wetlands, regardless of who approved it 10 years ago or how much money it might cost the city to keep the litigation going.
Breland, a well-known local developer, bought 65 acres just south of Nelson Road in 1999 for a little over $500,000. Some suggest the tract is more like a swamp acting as a valuable stormwater retention pond. Neighbors worry about regular stormwater flooding in the area.
But Breland received appropriate permits to fill in the 10.5 acres from the U.S. Army Corps of Engineers and the Alabama Department of Environmental Management.
Breland has maintained for years he did everything required by the permits, including buying wetland mitigation credits that went to the Weeks Bay Watershed Protective Association. Meanwhile, Fairhope was passing ordinances Breland claimed were intended to block the development. Several stop-work orders also were issued.
The city’s insurer refused to defend Fairhope in an ensuing lawsuit, leading the city to file another. Breland sued Fairhope, claiming he was being targeted with new laws designed to prevent him from developing the land.
In October of last year, however, the Alabama Supreme Court ruled in favor of Breland. “Under the circumstances of this case, each time Fairhope enforced its ordinances to stop Breland from filling activity on his property, Fairhope committed a new act that serves as a basis for a new claim,” the court said.
In November, new Mayor Karin Wilson took office. Among her many campaign pledges was one to cut legal fees in part by reviewing long-pending cases to see if they could or couldn’t be resolved.
She is no longer using the law firm of Hand Arendall, which had been representing the city in this case. Matt McDonald now represents the city.
Residents said they feared Wilson would settle the lawsuit and would allow Breland to open the tract for development. Nevermind that Wilson doesn’t have that kind of authority as mayor.
“This lawsuit has been going on for 10 years. Ordinances have been placed during that 10 years that can’t apply to someone that had an application in 10 years ago,” Wilson said. “We have spent hundreds of thousands of dollars on this lawsuit. That is a fact.”
Nor will she make a recommendation on how to dispose of the case, she said.
Burt Sonenstein, a resident, said neighbors of the property have not been invited to meetings with the developer or the city, nor have they been briefed about the value of the wetlands. “I also feel that the environmental damage is incalculable,” he said.
Council President Jack Burrell was presented with a petition against the development containing 113 signatures.
Also against filling in the wetlands are two environmental groups, Mobile Baykeeper and the Weeks Bay Foundation.
“I understand that you have to consider lawsuits [and] consider the tax dollars of the citizens of Fairhope,” said Cade Kistler, program director for Baykeeper. “But I also understand that it’s going to be critical to protect those wetlands, and that Fairhope is in a very strong position based on the ordinances that are in place.”
Yael Girard, executive director of Weeks Bay Foundation, said the 21-member board of directors for the foundation had unanimously voted to oppose any attempt to fill in the wetlands.
Whatever was discussed in the closed executive session, Burrell told the crowd ahead of time no action would be taken that night. Under Alabama’s open meetings law, government bodies may not reach decisions in closed session and must come into open session for any vote on what was discussed.
Baldwin County Circuit Court records show that on Monday, April 17, Circuit Judge Joseph Norton granted a motion by Breland and Breland Corp. to continue the case and set trial for the Sept. 5-15 term of court.