More than 2,000 residents in Fairhope, Alabama signed a petition against a proposed Wal-Mart supercenter on 57 acres of land east of the city, but city officials shrugged off public opinion and voted to give the giant retailer a building permit anyway. The Citizen’s group, A Fair Hope of Success, said that the Wal-Mart application made people realize how exposed they were to inappropriate development. “We’ve awakened people to how few protections we have, and they’re riled up,” Dean Mosher told the Mobile Register. Wal-Mart will not own the land in question, but will hold a lease from the nonprofit Fairhope Single Tax Corporation. “If they meet all the requirements, we’re kind of stuck,” one city official said, implying that the city has no power over zoning, and therefore no reason for existing, even if a project raises objectionable traffic, adverse impact on surrounding properties, etc. A Fair Hope of Success said they are now going to ask the city to be more proactive and pass a resolution supporting the Alabama Legislature’s efforts to create zoning districts with stronger regulations for development in unincorporated areas surrounding Fairhope. The Single Tax Group has the right to deny a lease to Wal-Mart, but they say they would pay financial damages to the current lessee of the property. This Single Tax Group has been in existence since 1894, and controls as many as 4,400 acres in the area, giving tenants 99-year leases that give a lease-holder rights practically equal to that of a property owner. But the Wal-Mart still needs to conform with the zoning rules in the area where the property is located. The city says the Wal-Mart is within its planning area, and so must meet city building codes — but apparently not its zoning codes. Ironically, Fairhope has a zoning cap on the size of buildings at 18,000 s.f. But the city claims its zoning rules do not apply to the “police jurisdiction,” which extends 1.5 miles beyond Fairhope’s boundaries. Unincorporated county land also does not have to meet Fairhope zoning restrictions. “We need rules down here to control these areas,” a city official told the newspaper. A state lawmaker whose district includes Fairhope simply told his constituents, “I know a lot of people are going to be disappointed, but Wal-Mart is going to be a fact of life for us in the Fairhope area. They’re (Wal-Mart is) going to be under close scrutiny. We’ll have to see how it works itself out.”
One of the primary rules of these battles is that citizens must be represented by competent, creative land use attorneys to put themselves on a level playing field with Wal-Mart. In this case, that lawyer would want to look carefully at the Single Tax Group’s lease agreement, the town and county zoning codes, and Alabama case law on similar zoning disputes. This case is an example of public policy failure — when a town has a size limit on stores, but can be strapped with a huge store eleven times larger than the cap, because land in the surrounding county is unregulated — apparently. While citizens were busy collecting signatures on a petition that was being ignored, no legal work up on this case was done. For earlier stories on this city, search Newsflash by “Fairhope.”
