Charles K. Breland, Jr., & Breland Corp. v. City of Fairhope & the Battles Wharf / Point Clear Protective Ass'n

• Court: Alabama Supreme Court
• Writing for the Court: MITCHELL, Justice.
• Citation: Charles K. Breland, Jr., & Breland Corp. v. City of Fairhope & the Battles Wharf / Point Clear Protective Ass'n, 337 So.3d 741 (Ala. 2020)
• Decision Date: 31 December 2020
• Docket Number: 1180492
• Parties: Charles K. BRELAND, Jr., and Breland Corporation v. CITY OF FAIRHOPE and The Battles Wharf / Point Clear Protective Association

337 So.3d 741

Charles K. BRELAND, Jr., and Breland Corporation

v.CITY OF FAIRHOPE and The Battles Wharf / Point Clear Protective Association

1180492

Supreme Court of Alabama.

December 31, 2020

Rehearing Denied April 23, 2021

Daniel G. Blackburn and Grant Blackburn of Blackburn & Conner, P.C., Bay Minette; and Algert S. Agricola, Jr., and Barbara H. Agricola of Agricola Law, LLC, Opelika, for appellants.

Matthew C. McDonald of Jones Walker LLP, Mobile, for appellee City of Fairhope.

Christine A. Clolinger of Davis & Fields, P.C., Daphne; and Fred W. Killion, Jr., Fairhope, for appellee The Battles Wharf/Point Clear Protective Association.

MITCHELL, Justice.

Charles K. Breland, Jr., purchased land in Baldwin County to build a housing subdivision. The subdivision he planned to construct required filling about 10.5 acres of wetlands, which the City of Fairhope and Baldwin County opposed. Breland and Breland Corporation (collectively "the Breland parties") sued Fairhope in the Baldwin Circuit Court, claiming that they had a vested right to fill the wetlands, that Fairhope's ordinances could not prevent them from filling the wetlands, that Fairhope had acted negligently regarding Breland's application for a land-disturbance permit, and that Breland's criminal citation for beginning work without a permit should be expunged. The trial court rejected their claims following a nonjury trial.

The Breland parties have appealed the trial court's judgment to this Court. For the reasons discussed below, we affirm the judgment.

Facts and Procedural History

In 1999, Breland purchased 65 acres in Baldwin County ("the property"), which lie outside Fairhope's corporate limits but within its police jurisdiction. Breland received preliminary site-plan approval from Fairhope in 2000 to develop Battles Wharf Landing, an 18-lot subdivision on uplands within the property. Rather than developing the 18-lot project, Breland revised his plan to include 36 lots. This new plan required filling approximately 10.5 acres of wetlands to develop 20 of the lots. To fill the wetlands, Breland had to obtain, through a joint-application process, a permit from the United States Army Corps of Engineers ("the Corps") and a certification from the Alabama Department of Environmental Management ("ADEM"). The joint application included a preliminary subdivision-plot plan.

Breland's joint application was subject to a period of public input. In 2001, Fairhope's mayor, Tim Kant, submitted a letter on behalf of Fairhope's city council objecting to Breland's application. That letter raised "environmental concerns associated with this project" and noted that filling "these natural wetlands will cut off what acts as a filter for water draining into Mobile Bay and also acts as a sponge, soaking in runoff water reducing drainage naturally." Mayor Kant testified at trial that, around the time of Breland's application, Fairhope passed a comprehensive plan directed at improving stormwater management and commissioned a study by Audubon International, which recommended additional protections.¹

The Baldwin County Commission also objected to Breland's application, arguing that his proposal did not conform with Baldwin County Subdivision Regulation 5.2.2 ("Regulation 5.2.2"), which provides, in relevant part:

"No development shall be approved that proposes to fill either jurisdictional or nonjurisdictional wetlands in order to create buildable lots. ... Lots may be platted where sufficient upland areas exist to provide a building site for the principal structure and necessary ancillary facilities. Fill may be used where necessary to provide access to lots where approval for such fill has been received from the Corps of Engineers and other appropriate governmental agencies...."²

The County also objected on the basis of the ecological impact of the proposed development.

At the Corps’ request, Breland responded to the objections to his proposal. He acknowledged that he "is required by law to obtain approval under separate authorization from the Baldwin County Planning Commission[, which] will review the project for conformity," and that "[s]hould the Commission not approve conformity, the project will not be built."

ADEM completed its review of Breland's application and issued its water-quality certification to the Corps in October 2002 ("the certification"). The next month, the Corps issued a permit to Breland, which provided authorization for him to "construct a residential subdivision" of 35 lots and "include[d] the filling" of wetlands ("the federal permit").

The federal permit was subject to several conditions and limitations. To offset the loss of wetlands, Breland had to preserve nearly 31 acres of additional wetlands on the property through a restrictive covenant that prohibited any other land disturbance. Additionally, it required Breland to purchase 24.68 mitigation credits from a mitigation bank run by Weeks Bay Watershed Protective Association, Inc. ("Weeks Bay"). The federal permit also provided that Breland must "comply with all Federal, State, and local floodplain ordinances" and that it did not "obviate the need to obtain other Federal, State, or local authorizations required by law" or "grant any property rights or exclusive privileges." Breland purchased the mitigation credits in July 2003 for $143,144.

In 2003, Breland's project manager contacted Fairhope and County officials about developing a subdivision on the property called Loyola Park. Fairhope issued two letters in response, raising concerns that "[a]lmost all of the entire project appears to be delineated wetlands" and noting that "the Planning Commission may consider this property not suitable for platting and development because of the filling issues, drainage issues, and the health issues of building houses in a wetland." Fairhope also referred to the County's subdivision regulations, stating that in Fairhope's view of the regulations, "the uplands should be developed and not the wetlands." The County denied Breland's site plan in part because it did not conform with Regulation 5.2.2.³ Breland did not pursue further approval of Loyola Park.

At the time the federal permit and the certification were issued, Fairhope did not have an ordinance in place governing the filling of wetlands outside Fairhope's corporate limits. That changed in August 2006, when Fairhope enacted Ordinance No. 1313. That ordinance prohibited filling activity "until the land owner or contractor has obtained a land disturbing permit from the City of Fairhope." Ordinance No. 1313, which was enacted to "protect the water quality and environmental integrity for the area watersheds," provided that fill material could not be more than 10% "red [soil] or clay."

Over a year later, without applying for a land-disturbance permit under Ordinance No. 1313, Breland moved heavy machinery to the property to clear an entrance in preparation for filling. Before Breland began land-disturbance activity, however, a Fairhope zoning enforcement officer issued a stop-work order because of Breland's failure to obtain a land-disturbance permit.

In April 2008, the Breland parties applied for land-disturbance permits from Fairhope and the County. The County issued a permit to Breland Corporation on June 2, 2008. In the cover letter, the County stated that "it appears that the purpose of this permit is to ultimately allow for the development of a subdivision." The County reminded Breland Corporation that, as such, under its subdivision regulations, "[n]o development shall be approved that proposes to fill either jurisdictional or non-jurisdictional wetlands in order to create buildable lots," and it advised Breland Corporation to consult with the County and Fairhope "prior to moving forward with any development plans."

Fairhope never responded to Breland's permit application. But on June 9, 2008, Fairhope enacted Ordinance No. 1363, which instituted a moratorium on issuing land-disturbance permits for projects that "may result in the loss, fill or destruction of wetlands." In its preamble, the ordinance cited "substantial growth and development" locally that had "resulted in the loss of certain sensitive environmental wetlands," which "serve a number of functions including pollution control and protection of water quality, flooding and stormwater control, and which provide habitat for fish, wildlife and vegetation." Ordinance No. 1363 was set to lapse by its own terms in October 2008.

With the federal permit set to expire in November 2008, Breland sued Fairhope in the Baldwin Circuit Court to enjoin the enforcement of Ordinance No. 1363 and to obtain a judgment declaring that Breland's land-disturbance-permit application to Fairhope should be granted. The Breland parties voluntarily dismissed that lawsuit after obtaining an extension of the federal permit.

Two days before the moratorium expired, Fairhope adopted Ordinance No. 1370. Like Ordinance No. 1313, Ordinance No. 1370 governs land-disturbance permits for projects that fill or destroy wetlands, but it imposes more detailed regulations. Ordinance No. 1370 states that the destruction of wetlands within and near Fairhope had "increased downstream water pollution, flooding, and erosion and [had] resulted in the loss of wildlife habitat." The ordinance also contains a "grandfather clause," which exempted from its permitting process "[a]ll uses and activities that were lawful before the passage of this ordinance." The Breland parties have not attempted to obtain a permit under Ordinance No. 1370.⁴

The Breland parties contend that, between late 2008 and 2011, Fairhope officials negotiated with Breland to purchase the property. But by late 2011, Breland believed that Fairhope would not purchase the property. Without seeking further permits from Fairhope, Breland attempted to resume his attempt to fill the wetlands. Fairhope issued a second stop-work order the same day. A few days later, a Fairhope official explained to...