ATTENTION FAIRHOPE TAXPAYERS
FW: Fly Creek PUD Amendment & the Deed to the City of the Most Sensitive 4 Acres
Mitsy, “email to all council members and Mayor Wilson would greatly benefit the City. It concerns the importance and impact of the Deed of Gift from Corte to the City of the lowest 4 acres between the retention pond outfall pipe and Fly Creek.”
“At the Council meeting there was confusion over the discovery that in Fall 2016 - while the developer was attempting to gain Site Plan Approval for a one-point drainage system through the out-fall pipe of the current detention in violation of the PUD Amendment 1572 requiring a non-point discharge system diffusing the water across the entire south side boundary - the Developer was also deeding to the City the entire 4 acre parcel, including wetlands, that the outfall pipe spills directly onto and is immediately adjacent and between the proposed project and Fly Creek.
Mayor Wilson appropriately expressed shock and concern that the City should not have taken ownership of this property. She was right.
The City is now not only acting as the City proper in relation to this PUD Amendment project, but is acting as a landowner. Big difference, and the timing suggests the developer knew it.
Under Alabama law, it is recognized “the common law right of a lower landowner not to be injured by an upper landowner’s interference with the natural drainage of surface water onto the lower property. An alteration in the natural flow of surface water would be a wrongful interference with the lower landowner’s possessory rights and could constitute trespass or nuisance. See Ala.Code 1975, § 6–5–213; Kay–Noojin Development Co. v. Kinzer, 259 Ala. 49, 65 So.2d 510 (1953); Sargent v. Lambert Construction Co., 378 So.2d 1153 (Ala.Civ.App.1979); see also Mitchell v. Mackin, 376 So.2d 684 (Ala.1979); Borland v. Sanders Lead Co., 369 So.2d 523 (Ala.1979); andCity of Mountain Brook v. Beatty, 292 Ala. 398, 295 So.2d 388 (1974).”
The City is now the upper landowner in relation to everyone who lives downstream along Fly Creek. The City must now deal with all that such ownership brings with it under Alabama law.
Secondly, on the flip side of the coin, the City is now the lower landowner to the proposed project. The City now has the right, duty and obligation as the lower landowner not to cause injury to itself and the wetlands it now owns. The City now has a vested interest as the lower landowner in relation to the PUD project not to allow run-off, erosion, silt, sedimentation, etc. to its own property. The City has already adopted the Fly Creek Restoration Program of 2013 recognizing the environmental importance and sensitivity of the site.
The ownership of the 4 acre tract at this most critical and sensitive area changes the entire dynamics of the PUD Amendment and pending Site Plan review. Why would the City knowingly create all this exposure, obligation and duty on itself by becoming the owner of the most critical land area of the site.
In the Fall of 2016, the developer for the first time submitted a site plan to use the out-fall pipe as the primary release point. At the same time, deeded the property it was channeling all the water onto, and the intermediate land between the PUD and Fly Creek, to the City.
This PUD Amendment must be repealed now to not only protect the lower landowners downstream, not only to protect our City’s natural resources, but to the protect the City itself as an upper landowner from all properties downstream, and as the City now owns the wetlands and is a lower landowner to the PUD project.”
COMMUNITY OR DEVELOPER
Sorry for the delay of the Ripp Report. CITY OF FAIRHOPE CITY COUNCIL AGENDA MONDAY, 10 APRIL 2017 – 6:00 PM. – CITY COUNCIL CHAMBER 5. Final Adoption – An Ordinance Amending Ordinance No. 1572:…
This “gift” is compliments of Tim Kant ,Corte and the last City Council. Please stay tuned to see how the attorneys and those responsible spin the story. This is a complicated issue with many moving parts and many more questions than answers. A comprehensive investigation into the ”gift” lift station, sewage lines and liability should be conducted. This can only be done by our elected officials. Failing to do this will aid any lawsuit pending or forthcoming and someone else doing the investigating, at taxpayers expense.
Whatever else let’s be fair:
For the 10th time citizens packed the city council chambers to discuss the Fly Creek Apartments and again their comments fell on deaf ears. Four councilmen voted for the extension of the sunset clause that allows the developer another 120 days to get a multiple occupancy site plan.