Dale Zuehlke looks out to see a 40-foot wall next to her house at 454 Pine St. in Fairhope.
Currently under construction, after getting a variety of variances from the Fairhope Planning Commissions and Fairhope City Council, the wall is part of a three-story, 32,000-square-foot building containing 22 apartments on the top two floors and retail establishments on the bottom floor at the corner of Pine and North Bancroft streets.
The eastern wall of the complex is three feet from Zuehlke’s western property boundary and balconies from the apartments will extend over the small buffer to reach her lot line.
She is suing the city to stop the project, arguing variances approved by the City Council are contrary to the city’s zoning ordinance concerning building commercial property next to a residential property.
“Even if it’s a commercial zoning, if the property is devoted to residential use then the adjacent property, meaning this big building has to be set off at least 10 feet,” attorney Richard Davis said. “If my client’s property had been devoted to commercial use, I might not have a claim.”
He is representing Zuehlke as she is suing the city along with councilmembers Jack Burrell, Jay Robinson, Jimmy Conyers, Robert Brown and Kevin Boone and 106 Bancroft LLC, the company developing the property.
The lawsuit also states since the mixed-use building is on a corner lot it must have a 20-foot setback on that part of the property. It claims the City Council voted to waive those restrictions and allow the project to move forward.
“More specifically, construction on the [Bancroft property] must be set back 20 feet from the front street, meaning Pine Street,” the suit states. “Because the [Bancroft property] is a corner lot, the same 20-foot setback applies to the Bancroft side.”
Zuehlke is also challenging changes made to the plans after a recommendation from the Planning Commission and to the final plan when the City Council voted.
“Variances we’ve identified so far include that the building’s eastern wall is now three feet from the eastern boundary and windows are now planned for the eastern wall but weren’t before,” the suit states. “These changes were not the subject of any public hearing of which we received notice.”
Davis says those changes — plus another that raised the building height from 35 to 40 feet in the interim between hearings — are illegal and he is asking for construction to stop on the building.
“But once the Planning Commission votes, if there are not changes in site plan conditions and the planning director nevertheless approves the change that approval is invalid,” Davis said. “It has to go back to the Planning Commission.”
The lawsuit alleges four counts against the defendants and seeks an unspecified cash settlement as well as removal of the part of the building completed to date.
“Plaintiff respectfully requests that the court (a) order the city to revoke site plan approval and the building permit issued pursuant thereto; (b) order defendant Bancroft to raze the building; (c) tax costs in this action to defendants; and (d) grant plaintiff such other and additional relief to which she may be entitled,” the suit states.
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