Alabama’s Supreme Court ruled against the city of Fairhope last Friday in a lawsuit accusing city leaders of targeting a property owner by adopting multiple city ordinances that have delayed development in a wetland area for 11 years.
The case was brought by Charles K. Breland in 2013 but has roots stretching back to 2001, when Breland began planning to fill in a little more than 10.5 acres of wetlands on a piece of property he bought outside the city limits in Battles Wharf.Over the course of several years, Breland purchased mitigation credits and deeded 39 acres of the property to Weeks Bay Watershed Protective Association Inc. — all requirements of permits he obtained from the U.S. Army Corps of Engineers and the Alabama Department of Environmental Management.
However, court files suggest the city filed a “formal protest” with the Corps over Breland’s project after he applied for permitting. When his permit application was approved, Breland claims the city adopted multiple ordinances to prevent his project from moving forward.
In August 2006, city officials adopted Ordinance 1313 — expanding a provision requiring any filling activity “within the city’s permitting [police] jurisdiction” be approved by a “land disturbing permit from the city.” Previously, the requirement was only applied to developments in the city limits.
When work began on the project, the city issued a stop-work order because Breland never obtained a “land disturbing permit,” and when he applied for one the following month, the city denied it. Two months later, Fairhope placed a moratorium on the “issuance of land disturbance permits” until October 15, 2008 — just a month before the project’s Corps permit was set to expire. As a result, Breland filed an initial lawsuit against the city in 2008.
However, Breland received an extension for his Corps permit and dropped his lawsuit after Fairhope’s moratorium ended. According to Breland’s testimony, the city “initiated” conversations about “buying the property” from him shortly after he dropped the lawsuit.
The city maintains there was no discussion about such a purchase until 2010, but said even those conversations were limited to Breland and “one member of the City Council.” In his majority opinion, Alabama Supreme Court Justice Glenn Murdock noted that the “record shows the negotiations also involved at least Fairhope’s planning director.”
“By late 2011, [Breland] got the impression Fairhope had been negotiating with him to buy the remainder of the property under false pretenses and actually was trying to delay the fill project until the Corps permit expired,” Murdock wrote.
Whatever the reason, when Breland resumed work on the property, Fairhope issued a stop-work order the same day — filing criminal charges that were later dropped in an agreement between both parties. Then, in 2013, Breland filed a second lawsuit against the city, seeking clearance to proceed with the project and a court order voiding Fairhope’s ordinances that “purport to regulate the filling of wetlands” claiming they “conflict with state law, and would be preempted by ADEM’s regulatory authority.”
The suit also seeks monetary compensation for the city’s “negligence,” but in 2014, both parties agreed to try that claim separately from the other four. However, as the date of the jury trial neared, the city filed a motion for summary judgment based on the statute of limitations.
In an order from 2014, Baldwin County Circuit Judge Joseph Norton granted the city’s motion.
“Even assuming [Breland] learned of [Fairhope’s] alleged misconduct as late as Aug. 8, 2008, when he filed his original complaint, his current cause of action filed on Aug. 7, 2013, would have been filed outside of the applicable two-year statute of limitations period,” Norton wrote.
The Supreme Court, however, unanimously disagreed with Norton.
In its opinion, Breland’s grievances did not begin and end with the city’s actions in 2008. Instead, the court ruled that any action the city took to prevent Breland from performing work on his property would be grounds for a legal claim. Thus, Breland’s 2013 complaint stands because it was filed within a two-year period of the city’s actions in 2011.
In reversing Norton’s ruling, Murdock wrote that measuring the statute of limitations from the adoption date of a single ordinance or a particular instance of enforcement “makes no sense.”
“If Breland is unlawfully restrained at the present time — and going forward — in his use or enjoyment of his property by the current and threatened future enforcement of one or more such ordinances, it is that fact that his declaratory judgment claims seek to address,” Murdock continued.
With a ruling reversed, the case will return to Baldwin County Circuit Court, although it’s unclear as of this writing if it will proceed as two separate cases — one addressing Breland’s right to perform the work on his property and another addressing damages he may be owed by the city.
Murdock’s opinion gives the impression that Breland’s claims of negligence may be off the table because his appeal focused on the statute of limitations applied to his declaratory judgment claims and not his final claim seeking damages from the city.
Because Breland made “no meaningful argument” that the statute of limitations shouldn’t apply to his negligence claim, Murdock said there is “no persuasive basis” to overturn Norton’s decision to throw it out.
Either way, the 11-year saga has already been costly for Fairhope.
The city has been represented by Caine O’Rear III of the Hand Arendall Law Firm, which the city has paid $841,273 since 2013. However, payments attributable to the Breland case are unknown because information provided to Lagniappe by the city was not broken down by individual cases.
The issue also spawned another lawsuit a little more than a year ago when the Alabama Municipal Insurance Corporation refused to cover the city’s expenses in the Breland case — the second time the city has accused the insurer of refusing to cover its legal costs in lawsuits accusing officials of deliberately stifling development in Fairhope.
The first lawsuit against AMIC was settled in 2014 and was related to legal fees from a lawsuit brought by the Dyas family in 2008 after the Fairhope Planning Commission rejected plans to construct a shopping center at the “Dyas Triangle” between Highway 104, U.S. Route 98 and Veterans Drive.
Calls seeking comment on this report from Breland and Fairhope Mayor Tim Kant were not returned by this newspaper’s press deadline.