Fairhope Council to Consider Keeping Fly Creek Apartments Approval Alive Despite Moratorium

FAIRHOPE, Ala. — The Fairhope City Council’s agenda for its Monday night meeting includes a request to amend an ordinance so that the earlier approval of the Fly Creek Apartments would not expire because of the city’s development moratorium.

The request appears as Item 6 on the agenda. The meeting is the ninth public meeting on the project, which residents have opposed at previous meetings.

The agenda does not include an updated job description for the city’s Public Works Director, which the mayor had requested. Council President Jack Burrell did not place that item on the agenda.

Lawsuit allegations

A lawsuit filed over the project alleges that from January through April 2016, defendants Leaf River and Corte made representations to the Fairhope Planning Commission, the City Council, the plaintiffs and residents to win approval of the Fly Creek planned unit development (PUD) amendment, and that those representations continued through the October 2016 site plan review. The allegations have not been proven in court.

According to the complaint, the defendants said the project’s drainage would use a non-point discharge system that would spread stormwater runoff evenly through a gabion wall structure, using perforated pipe and a gravel bed along the Fly Creek wetland boundary. The complaint alleges the defendants knew or should have known that they would instead use a point discharge system, sending stormwater through a large pipe connected to an existing retention pond serving the neighboring commercial center and out a single outfall pipe into the wetlands and Fly Creek. The complaint also alleges that at least 50 tons of Class 2 riprap would be needed toward the wetlands to handle the outflow.

Red soil ordinance

The complaint further alleges the defendants represented that Fairhope’s Red Soil Ordinance No. 1423 would apply to the entire site and that no red soil would be used anywhere on it. The ordinance is intended “to protect the water quality and environmental integrity of the watersheds” in Fairhope and bars the use of red soil, clay and silt in “critical areas,” defined as environmentally and ecologically sensitive areas, including land within 100 feet of floodplains, wetlands, watercourses and gullies.

According to the complaint, the defendants intended to move red soil from other parts of the 213-acre PUD into areas within 100 feet of the wetlands, watershed and Fly Creek, relying on an ordinance definition of “filling activity” that refers to soil brought in from another location. The plaintiffs allege this was a material misrepresentation and non-disclosure and that the PUD amendment would not have been approved had the facts been known.

Other litigation

An earlier lawsuit related to the site was settled, and another lawsuit is pending. The Fairhope Tree Committee assessed nearly $1 million in damages related to the city’s tree ordinance. The Fly Creek basin requires dredging each year.