A lawsuit to stop the construction of a luxury apartment development near Fly Creek will be allowed to move forward after Baldwin County Circuit Judge Scott Taylor denied a motion to dismiss the case filed by the city of Fairhope and the project’s developers.

In April, attorney Adam Milam filed a complaint alleging the Fairhope City Council’s April 11 approval of a change to the Fly Creek Planned Unit Development (PUD) to allow the development of a 240-unit apartment complex will adversely affect and damage the creek.

Milam represents Friends of Fly Creek LLC, a group of four Fairhope residents who live downstream from the proposed development.

In court July 19, defense attorney Caine O’Rear argued the plaintiffs did not have standing to file the complaint in the first place, calling the complaint a “delay tactic” to hamper construction of the apartment complex.

“This case was filed for the simple purpose of delay if for no other reason,” O’Rear told the court. “The basis of their argument is that they disagreed with the council’s decision. The city’s elected officials heard, at length, the arguments from both sides and made an informed decision. The guts of it is that the opponents didn’t want to have apartments there.”

Milam said the plaintiffs will move forward with discovery to find out why the city approved plans for the development and a parking lot along Fly Creek in the environmentally sensitive Fly Creek watershed. He called the plan illegal and said it is in violation of the city’s ordinances and comprehensive plan.

“Not to mention that the apartment complex is directly at odds with the luxury single-family residential subdivisions that surround the location like Rock Creek, Sandy Ford and the Woodlands,” Milam said. “The location really could not be worse for Fairhope and its most important nonrenewable natural resource.”

In court July 19, Milam argued the city’s comprehensive plan requires high-density developments, like an apartment complex, to be placed in the least environmentally sensitive areas in the city’s “village concept.”

O’Rear argued that the approved PUD actually enhances the restrictions of the city’s wetlands ordinance and does not conflict with other ordinances because, by definition, a PUD need only comply with the restrictions within itself. He also said the city’s comprehensive plan is not legally binding, but a guide for future development.

The development, known as The Retreat at Fairhope Village, will have 240 units with rents ranging from $1,000 to $1,600 for one-, two- and three-bedroom apartments. On April 11, the Fairhope City Council voted 3-2 to change approximately 39 acres in the Fly Creek PUD to allow the apartments instead of the townhomes and condominiums approved in 2006.

Before the development was approved, developer Stewart Speed from the Leaf River Group sent a letter to Planning Director Jonathan Smith. In the letter, Speed said the company would self-impose more restrictive environmental rules than the city requires. The letter said the company plans to acquire a $2 million environmental insurance policy to cover any potential damages incurred during construction for 24 months.

Milam argued the fact the developer felt compelled to purchase an environmental insurance policy should be a “red flag” that the development would likely cause environmental harm.

“There is absolutely no way to say these apartments can be built where they are without harming the wetlands at Fly Creek in the city limits,” Milam told the court. “This project cannot be developed without any filling or disturbance in the watershed.”

In June the Fairhope Planning Commission granted a request from landowner Angelo A. Corte to extend the time limit to record a plat for the apartment development for 180 days. Normally a plat must be recorded within 60 days of approval by the council, but the impending litigation has caused a delay in the project’s development.

The city is also currently entangled in a pair of other lawsuits.

A lawsuit filed Feb. 12 by Sandy Ford Road residents Aaron and Wendy Solomon demands judgment against the city for its alleged inaction to repair a drainage system after more than a year of requests.

The city filed a motion to dismiss the complaint in March, but Baldwin County Circuit Court Judge Scott Taylor denied it July 18. The city denied the claims in a response filed through Hand Arendall LLC attorneys Christopher S. Williams and O’Rear.

The Solomon lawsuit seeks unspecified compensatory damages for the city’s alleged negligence and wantonness. In addition to compensatory damages, the plaintiffs are also seeking attorney’s fees and costs. The plaintiffs are represented by attorney Winston Grow; the case has been assigned to Baldwin County Circuit Court Judge Scott Taylor. As of July 29, no further court dates had been set.

In addition, the city is still faces a complaint filed by Beecher Street homeowners who sued for damages following the Fairhope Planning Commission’s 2014 denial of a zoning request they say prevented them from selling their property.

The lawsuit, filed in November 2014 by attorney Dan Blackburn on behalf of Doris Faust Callies, William Callies III and Michael E. and Leslie C. Hollis, seeks damages after the Planning Commission voted unanimously Nov. 3, 2014, to deny a subdivision approval the family claims had already been approved by the city in 1999.

The suit alleges deliberate actions by the city and the Planning Commission prevented Doris Faust Callies and Michael and Leslie Hollis from selling lots on Beecher Street in 2014. According to court documents, the Hollis family attempted to sell their home for $303,721 and Callies tried to sell six lots for $225,000. Both sales fell through after the denial. That case has been sealed from public view.

In each of the lawsuits the city is represented by O’Rear and attorneys from Hand Arendall. Reached for comment on July 29, O’Rear declined to provide comments on any of the cases. O’Rear also declined to provide an explanation for why the Hollis case was sealed and whether or not it has been settled.