AlaFile E-Notice

05-CV-2018-900224.00
Judge: J. CLARK STANKOSKI
To: MILAM ADAM MATTHEW
amilam@milam-law.com

NOTICE OF COURT ACTION
IN THE CIRCUIT COURT OF BALDWIN COUNTY, ALABAMA
FLY CREEK WATERSHED PRESERVATION ASSOCIATION, INC. V. CITY OF FAIRHOPE
05-CV-2018-900224.00
A court action was entered in the above case on 9/4/2018 11:33:39 AM
ORDER
[Filer: ]
Disposition:
Judge:

GRANTED
JCS

Notice Date:

9/4/2018 11:33:39 AM

JODY WISE CAMPBELL
CIRCUIT COURT CLERK
BALDWIN COUNTY, ALABAMA
312 COURTHOUSE SQUARE
SUITE 10
BAY MINETTE, AL, 36507
251-937-9561
jody.campbell@alacourt.gov

 DOCUMENT 105
ELECTRONICALLY FILED
9/4/2018 11:33 AM
05-CV-2018-900224.00
CIRCUIT COURT OF
BALDWIN COUNTY, ALABAMA
JODY WISE CAMPBELL, CLERK

IN THE CIRCUIT COURT OF BALDWIN COUNTY, ALABAMA
FLY
CREEK
WATERSHED
)
PRESERVATION ASSOCIATION, INC.,
BREWER KENT,
)
BRACKIN JULIAN BYRON III,
)
Plaintiffs,
)
)
V.
) Case No.:
)
CITY OF FAIRHOPE,
)
FAIRHOPE PLANNING COMMISSION, )
Defendants.
)

CV-2018-900224.00

ORDER
This matter came to be heard on Plaintiffs’ Motion for Partial Summary Judgment on Count 1,
Defendants’ filed their response in opposition and Cross Motion for Summary Judgment as to all
Counts, Counts 1 and 2. Intervenor The Retreat at Fairhope Village, LLC joined in the
Defendants’ opposition and cross motion.
Upon review of the motions, briefs, all evidence submitted into the record, and hearing
arguments of counsel at the hearing on August 28, 2018 in Bay Minette, Baldwin County,
Alabama, it is hereby ORDERED, ADJUDGED and DECREED as follows:
1.

On April 11, 2016, the Fairhope City Council approved the application and
enacted Ordinance 1572. The City Council expressly incorporated the Project
Narrative and all materials in Exhibit A and B into Ordinance 1572. Ordinance
1572 governs the subject dispute and property.

2.

Courts construe Ordinances as a whole, so as to harmonize their parts if possible.
A statute or ordinance is passed as a whole and not in parts or sections and is
animated by one general purpose and intent. Consequently, each part or section
should be construed in connection with every other part or section so as to
produce a harmonious whole. Zegarelli v. Montevallo Palnning and Zoning
Com’n, 37 So. 3d 824 (Ala. 2009); McRae v. Security Pacific Housing Services,
Inc., 628 So. 2d 429 (Ala. 1993); Karrh v. Board of Control of the Employee’s
Retirement System of Alabama, 679 So. 2d 699,672 (Ala. 1996). The
fundamental rule of statutory construction is to ascertain and give effect to the
intent of the legislature (Fairhope City Council) in enacting the ordinance.
However, when possible, the intent of the legislature should be gathered from the
language of the statute itself. Zegarelli, supra. The Court adopts these and the
other rules of statutory and plain language construction used by the Alabama

 DOCUMENT 105

Supreme Court in Zegarelli in analyzing the subject dispute.
3.

Looking at the Ordinance as a whole it is unambiguous. The drainage system
requirements articulated were objective and material. The requirements were
fairly specific, unique and required the use of a non-point discharge system
utilizing a gabion wall that ran the entire of the wetland boundary near Fly Creek.
The Ordinance’s drainage plan’s purpose was “to help protect the adjacent Fly
Creek.”

4.

While the drainage system proposed in the Multiple Occupancy Site Plan
approved by the Fairhope Planning Commission in September 2017 may work
from an engineering perspective, may comply with Fairhope’s subdivision and
storm water regulation requirements, it does not comply with the governing
Ordinance’s requirements.

5.

Ordinance 1572, according to its express terms viewed as a whole, is
unambiguous. The drainage is to be a non-point discharge that will drain through
a gabion wall that runs the entire length of the wetland boundary near Fly Creek
in order to dissipate the energy and disperse the discharge all along the entire
wetland boundary near Fly Creek. The drainage system approved by the
Fairhope Planning Commission is an eight point discharge system that drains
through eight different 40’ level spreaders unconnected to any gabion wall or
gabion wall segments. No perforated pipes or gravel beds allow water to drain
through a gabion wall. There is not a gabion wall that meets the Ordinance’s
objective and unambiguous requirements.

6.

A planning commission is authorized to adopt regulations “not inconsistent with
the statutes (ordinances). Boulder Corp. v. Vann, 345 So. 2d 272, 275 (Ala.
1977). The Fairhope Planning Commission when it approved the MOP Site Plan
acted inconsistent with Ordinance 1572 and therefore, acted arbitrarily,
capriciously, and not in compliance with applicable law. Birmingham Planning
Commission v. Laird, WL 1025031 (Ala. Civ. App. Feb. 23, 2018); Smith v. City
of Mobile, 374 So. 2d 305, 307 (Ala. 1979).

7.

Plaintiff’s Motion for Partial Summary Judgment on Count 1 is GRANTED.
The approval is declared null, void and of no effect. All permits issued on the
MOP Site Plan approval are declared null, void and of no effect. The
Developer/Intervenor as well as the City Defendants are directed to vegetate all
slopes and cleared areas in order to protect Fly Creek and wetlands near Fly
Creek from damage, erosion and run off.

8.

Defendants’ Cross Motion for Summary Judgment is DENIED.

9.

The Plaintiffs’ request to strike the affidavits presented by the Defendants is
DENIED.

 DOCUMENT 105

DONE this 4th day of September, 2018.

J. CLARK STANKOSKI

 

CIRCUIT JUDGE