A tip from a neighborhood watchdog organization led the city of Fairhope to issue a stop-work order at a construction site along the banks of Fly Creek Aug. 9.
According to Mobile Baykeeper Program Director Cade Kistler, a member of the Fly Creek Watershed Preservation Association (FCWPA) noticed unauthorized land clearing and possible construction on a waterfront property and notified Baykeeper. In turn, Baykeeper contacted the city of Fairhope, which temporarily shut the project down although damage to the creek bank had already been observed.
“Fairhope has a riparian buffer ordinance, which prevents clearing next to a waterway or lake unless there is a buffer or other protections,” Kistler said, noting both the Army Corps of Engineers and the Alabama Department of Environmental Management (ADEM) provide their own waterfront regulations in certain circumstances. “It looks like the contractor went in and cleared down to the creek, and Fly Creek is extremely sensitive to sediment issues.”
For years, residents have documented sedimentation of the creek, largely attributed to commercial and residential development east of U.S. Route 98. But while the city has made strides in stabilization and restoration since it published a restoration plan in 2013 — including the purchase of the 108-acre “Dyas Triangle” for preservation — Fly Creek remains vulnerable to private investment.
Relatively deep and clear as recently as 15 years ago, portions of the creek have since been choked with several feet of sediment and the water often turns orange with clay after heavy rains.
“There is a section of the creek where old ADEM reports said they were in jon boats doing samples in 4 to 5 feet of water,” Kistler said. “Now you might be able to paddle a kayak through there, but you’ll have to get out and walk at spots.”
Kistler pointed a finger at the construction project that introduced Publix and its surrounding shopping center to the city in 2009. Then, Fairhope resident Paul Ripp and a handful of neighbors filed suit against the city, the county and the developers of the project, which resulted in a confidential settlement agreement, but allowed the project to proceed.
More recently, the FCWPA filed suit against the city and its Planning Commission to overturn the site plan approval for a 230-unit apartment complex known as The Retreat at Fairhope Village. Circuit Court Judge Clark Stankoski briefly halted the project last year after ground had been broken, but later determined the planning commission’s approval “was not arbitrary and capricious” and “all permits are valid.” Construction continues on the apartments today.
“The neighbors saw this and they’ve become really vigilant about Fly Creek now,” Kistler said.
FCWPA founder Kent Brewer said the organization has increased its profile, but he remains “a pessimistic preservation person.”
“We work with Mobile Baykeeper and the city has been real helpful,” Brewer said. “Commercial development is the biggest problem, but we even have residents who don’t want to spend the money or time on permitting because the fine is so minuscule, so it’s a struggle for us. I would like to see Fairhope be a city where the City Council would say no to bad development, but I don’t see that happening.”
He recalled another recent incident where a resident on Sea Cliff Drive cleared a double lot of all trees, causing eroded soils to enter the water after rains. Brewer said stiffer penalties could be more effective at preventing unpermitted construction or excessive sedimentation, “but a lot of the times bad publicity for the city is the most effective.”
Fairhope Building Official Erik Cortinas said Code Enforcement Officer Kim Burmeister responded to the construction complaint earlier this month and immediately stopped the work and ordered sod to be laid where a natural buffer once stood.
“We had a homeowner who hired a contractor do some work on their property, which included dredging around the creek, and they had no permits for that project,” he explained. “The city’s permits stop at waterline, but it would have required a land disturbance permit. The Corps went out and said no wetlands had been impacted so they are good with the Corps as far as I know but we also referred them to the [Alabama Department of Conservation and Natural Resources]. We’re waiting to hear back from them as to anything they may enforce.”
Cortinas said when the city is alerted to unpermitted site work or construction, the city may stop work, double the permit fee and “depending on the circumstances, we can assess an additional fine. If work is not legal, they have to correct it, then they can come to us, double the fees and we can issue the permits and assess a fine. Then we can track the project going forward.”
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