During a three-and-a-half hour meeting Wednesday night, the Fairhope City Council tabled a sudden and somewhat surprising resolution to enter into a conservation easement agreement with the Weeks Bay Foundation on a piece of property behind the “Welcome to Fairhope” sign known as the Dyas Triangle.
The city purchased the undeveloped 108-acre property in 2014 as part of a legal settlement, but officials have since been at odds over its potential use. Suggestions have ranged from keeping it mostly natural but adding walking and biking trails, to building a botanical garden, performance art center, higher education facility or similar amenities for public use.
Mayor Karin Wilson expressed “great surprise” when the resolution appeared on the agenda late Friday, warning at the meeting the agreement could severely restrict the city’s use of the property now and forever.
“This is a great opportunity … it has value,” she said at the meeting Wednesday, noting recently departed Planning Director Wayne Dyess submitted a conceptual idea for botanical gardens late last year. “Why in the world would council even consider a conservation easement which would eliminate all future opportunity? Conservation easements are a power invested in land trusts. We are the government — why would we give that away to a third party? Do we not trust our future?”
Council President Jack Burrell indicated that was indeed part of his motivation, declaring the agreement would prevent “future politicians [from taking] that land and putting whatever they want on [it].” He said the $39,025 in fees associated with the agreement was donated, but he did not disclose the name of the donor.
Still, Burrell voted to table the resolution after Councilman Jay Robinson conveyed legal concerns, suggesting the city attorney had not yet ruled whether the agreement would constitute an unlawful “disposal” of the property according to state statutes.
City attorney Marcus McDowell said the only case law he could find originated in Virginia, where the attorney general decided a conservation easement is “tantamount to the sale of a property.” He suggested the city council clarify its long-term intentions with the property and seek out an attorney general’s opinion of its own.
But in the resolution’s defense, both Burrell and Weeks Bay Foundation Director Yael Girard said the agreement would not immediately restrict any development on the property, but rather would allow the Foundation to start working with the city to determine what the terms may be.
“This is for us to start working with the city and working with their partners to create terms for those properties that will provide the best protection while also allowing [the city] to continue pursuing activities on the property they feel is appropriate for the future of the land,” Girard told Lagniappe prior to the meeting. “We as the Foundation don’t want to start working on what the future will look like until we have an agreement.”
The Foundation has established a similar conservation easement on public property in Dauphin Island for a bird sanctuary and is currently in negotiations with the city of Gulf Shores to establish a conservation easement on an undeveloped piece of property along Oyster Bay. Girard said the idea was conceived by the Foundation’s Director of Development and Communications Diana Brewer, a former Fairhope city councilor who served while the legal settlement over the property was approved.
“She indicated there had been some talk about trying to preserve it for the future and as she learned more about conservation easements she said ‘oh, that’s something that may be of interest to the Council,’” Girard said. “We let them know sort of as an informational thing more than a year ago and we didn’t push it after that point. Then the city council members approached us recently and indicated they did want to do something regarding this particular tract.”
Girard said those discussions did include “fairly low impact” improvements such as walking trails made with pervious materials for the northern tract and a botanical garden space for the southern tract, which borders Fly Creek.
“Nothing has been set in stone yet but it sounds like, based on conversations we’ve had with the council and leadership, they would like to see this as an amenity for citizens and visitors of Fairhope while still maintaining the conservation integrity of the property … to make sure the property can withstand the long-term and be protected forever,” she said.
Speaking on behalf of Wilson, attorney Ken Watson, who has worked with both the city of Fairhope and Baldwin County Commission on planning issues, said state code allows disposal of city-owned property when it’s not needed for a public purpose.
“I looked at the settlement, the deed and development agreements and to me it’s clear the city paid that money and bought that property … for a public purpose,” he said. “Is this a disposal of property? The law is not clear. Alabama Supreme Court has said disposal means complete alienation of property – holding nothing back, but the same decision said a lease for a term would be OK. If we assume it’s a disposal the question becomes if the property is not needed by the city … how do we find an articulable basis to give those rights to someone else?”
Robinson said he was open to considering all ideas and opinions but “without sound legal advice, I’m not in favor of moving forward. A lot of things they say are true; once you lock into a conservation easement whatever the suggested or allowable uses of that property are, it’s over. They can’t be changed. Forever. But until we have a clear legal idea of whether or not that is even legal, there is nothing to consider in my opinion.”
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