Special Baldwin County Circuit Court Judge George Elbrecht denied two post-trial motions last week brought by a Fairhope resident seeking relief from an earlier judgment in favor of the city regarding parklands adjacent to his Mobile Street home.

While the motion for relief of judgment and a separate motion for a stay of construction on a sidewalk on the property were both denied, the action makes way for a ruling from the Alabama Court of Civil Appeals, according to attorney Greg Buffalow, who represented his plaintiff and law office partner Gene Warhurst in about five hours of testimony on Friday.

Warhurst was initially sued by the city after he tried to build a private pier at his house next to the city’s White Avenue pier, which is deeded to the public. Warhurst and five of his neighbors later agreed to a settlement, which allowed the city to build a sidewalk on the shoreline of the land they claim had been deeded to them by the Fairhope Single Tax Corporation in 1931. The land is behind the residents’ homes along Mobile Bay.

Elbrecht denied the motions because “the defendant did not show exceptional circumstances for relief.”

The city subdivided the land and built a sidewalk that cut Warhurst’s and other’s backyards in half, Buffalow said. Last week’s motions follow a court action for relief of judgment brought by Warhurst in July, after he discovered the plat recorded by the city’s planning department was not the same as the plat approved by the Planning Commission on Dec. 2, 2013.

With Fairhope Planning Director Jonathan Smith on the stand, Buffalow argued the subdivision plat the city is working with is void because it wasn’t recorded within the 60 days required after Planning Commission approval.

During cross-examination by City Attorney Tut Wynne, Smith explained he signed the wrong plat.

“It was placed in front of me two days after (Planning Commission approval),” Smith told Wynne. “I didn’t look at it in great detail and signed it. The two plats look very similar.”

Wynne told the court the city would like to go back and correct the mistake.

The plat mistakenly approved by Smith was the original plat submitted by Preble-Rish, Wynne said. City Planner Nancy Milford reviewed the plat and sent a letter to Preble-Risch, after she found several issues with it. The engineering firm then sent a letter back with the plat that was eventually approved by the Planning Commission.

Wynne asked Smith if it was a typical application. Smith said it wasn’t typical because it’s the result of a “complex” lawsuit and “there was a court order involved.”

During redirect, Buffalow asked Smith a series of questions about planning regulations, such as if a 50-foot buffer zone was typically required on subdivided lots and the shoreline. Smith answered “yes.” Buffalow then asked if there was a mention of a waiver of that requirement in a notice sent to affected homeowners. Smith answered “no, sir.”

Buffalow also pointed to planning requirements that for a piece of land to be considered a park it must be at least three acres. Smith said he couldn’t answer because “I don’t have the regulations in front of me.” After Buffalow gave Smith a copy of the planning regulations, which had been previously put into evidence, Smith said “it looks that way.”

“I need to read the entire page this comes from,” Smith said when Buffalow asked if a waiver is needed to modify the requirement. “I feel like three acres is a guideline.”

Buffalow questioned Smith about the size of the individual lots. He argued they were smaller than would typically be seen in a subdivision. He also argued that since some of the lots were situated between a bluff and private homes, they did not have access to a public right-of-way, a requirement in Fairhope’s planning regulations.

Smith agreed with Buffalow that under normal circumstances the land would not be subdivided because it is not adjacent to a public right-of-way.

When asked by Wynne if the city’s planning regulations give leeway to the Planning Commission for unique subdivisions, Smith said “yes.”

“The subdivision layout was not something we’re used to seeing,” Smith told Wynne. “The size of the lots wouldn’t normally meet regulations. It’s unique that it’s on a bluff near the bay.”

George Roberds, a Planning Commission member, testified the lots in the subdivision aren’t normally the type the Planning Commission approves. Roberds also told the court a “majority of the time” sidewalks are adjacent to a public right-of-way. During the line of questioning, Buffalow also mentioned Roberds’ own firm built the sidewalks in question.

During a line of questions for Fairhope Single Tax Corporation Secretary Leslie Stejskal, FSTC Attorney Alan Chason told the court Warhurst and five of his neighbors agreed to a settlement deal with the city that would allow the sidewalk in question. Stejskal also revealed tat those six leaseholders applied for new leases with FSTC. As part of the new lease application, Warhurst is paying $15,000 through a payment plan.

“If the plat is void, what’s the status of the lease?” Chason asked Stejskal. “The new leases will have to be recalled.”
“We’re going to be in a heck of a mess,” Stejskal said.

Stejskal also testified the other five lessees have “no objection to the sidewalk.”

Buffalow argued the settlement judgment did not include an illustration and the easement for the sidewalk was supposed to be along the shoreline and not on the bluff near the homes.

“There’s an interpretation of what ‘shoreline’ means,” Stejskal said.

During follow-up testimony with Chason, Stejskal said it wasn’t practical to build the sidewalk on the actual shoreline.
Buffalow argued there is enough room on the shoreline to build a sidewalk.