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Municipal Regulations of Wetlands In The Police Jurisdiction

Breland v. City of Fairhope, et al., [Ms. 1180492, Dec. 31, 2020], ___ So. 3d ___ (Ala. 2020). The Court (Mitchell, J.; Bolin, Shaw, Mendheim, and Stewart, JJ., concur; Parker, C.J., concurs in part and concurs in the result; Bryan, J., concurs in the result; Sellers, J., dissents) affirms the Baldwin Circuit Court’s judgment rejecting claims by developer Charles Breland and Breland Corporation challenging Fairhope’s regulation of wetlands in its police jurisdiction.

The Court declines to review the Breland parties’ vagueness challenge and explains, “the Breland parties have not attempted to comply with any of Fairhope’s ordinances …. We therefore need not analyze the Breland parties’ vagueness arguments as to Ordinance No. 1370, or those ordinances enacted after it, because they are ‘hypothetical concerns’ that are not ripe for our review.” Ms. **14-15, quoting Ex parte Baldwin Cty. Planning & Zoning Comm’n, 68 So. 3d 133, 139 (Ala. 2010).

In rejecting Breland’s vested-rights claim, the Court explained

Although physical improvement to property may not be required to establish a vested right in every instance, the lack of physical improvement to the property, combined with other equitable considerations outlined here, foreclose the Breland parties’ vested-rights argument. First, the federal permit – which serves as a key basis for the Breland parties’ vested-rights argument – states: “This permit does not grant any property rights or exclusive privileges.” (Emphasis added.) And it is a condition of the federal permit that Breland must comply with local law. As noted, Breland’s permit application was denied by the passage of time; thus, he was not in compliance with local law or the federal permit when he claims his rights vested.

Ms. **23-24.

The Court then applies the equitable balancing approach of Grayson v. City of Birmingham, 277Ala. 522, 173 So. 2d 67 (1963) which considers “‘the reasonable necessity for protecting and promoting the health, safety, morals, and general welfare of the public.’” Ms. **26-27, quoting Grayson, 277 Ala. at 528, 173 So. 2d at 72. The Court holds “‘Fairhope is empowered to adopt ordinances’ to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience” of citizens within its police jurisdiction. § 11-45-1, Ala. Code 1975.” Ms. *27.

The Court also rejects Breland’s arguments that “the Alabama Environmental Management Act, §22-22A-1 et seq., Ala. Code 1975 (“AEMA”), and the Alabama Water Pollution Control Act, §22-22-1 et seq., Ala. Code 1975 (“AWPCA”) preempt the field of wetlands regulations ....” Ms. *29. “[T]o preempt an entire field, ‘an act must make manifest a legislative intent that no other enactment may touch upon the subject in any way.’” Ms. *29, quoting Peak v. City of Tuscaloosa, 73 So. 3d 5, 19-20 (Ala. Crim. App. 2011). The Court concludes that “the AEMA and the AWPCA do not ‘make manifest a legislative intent that no other enactment may touch upon the subject in any way’ such that Fairhope’s ordinances are preempted.’” Ms. *34, quoting Peak, 73 So. 3d at 19-20.

Finally, the Court holds that “Fairhope’s ordinances do not mandate certain types of land usage based upon categories, zones, or districts, … are designed to minimize potential harm and impacts to the environment and adjacent property owners … [and] were enforceable in the police jurisdiction as they are not zoning ordinances, but instead were enacted pursuant to [Fairhope’s] police power to protect public health, safety, and welfare.” Ms. **38-39 (internal citation and quotation marks omitted).

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