Posted by: Patricia Salkin | January 9, 2021

AL Supreme Court Find No Vested Rights to Fill Wetlands for Subdivision

This post was authored by Zoe Ferguson, JD (Admission pending)

The Alabama Supreme Court rejected a developer’s attempt to circumvent local ordinances to build a 36-lot subdivision, holding that the developer failed to show that he had a vested right to fill wetlands on his property, that the ordinances were invalid, or that he was not obligated to comply with those ordinances.

Charles K. Breland, Jr. and his company Breland Corporation (collectively “Breland”)  purchased 65 acres of land in Fairhope to build a residential subdivision requiring filling of 10.5 acres of wetlands. Breland obtained a federal permit to fill the wetlands in 2002.

In 2006, Fairhope enacted an ordinance to protect wetlands. Without applying for a land-disturbance permit, Breland prepared to fill the wetlands but was issued a stop-work permit. Two years later, Breland applied for land-disturbance permits from the city and county. The county granted a permit, but the city never responded and later enacted more wetland protection ordinances. In 2011, without attempting to get the city permit, Breland again tried to fill the wetlands and was issued a second stop-work order as well as a criminal citation for failing to obey a city ordinance.

Breland sued Fairhope, seeking a judgment that they had a vested right to fill the wetlands based on their expenses, the local ordinances were preempted by state law and improper de facto zoning laws, and the city was negligent in mishandling the 2008 permit application. Breland also sought expungement of his citation. The trial court entered summary judgment for Fairhope, mostly on statute of limitations grounds. On appeal, the Alabama Supreme Court reversed and remanded. The trial court held Breland had not obtained a vested right, state law did not preempt the ordinances, and they were not improper zoning laws, so the negligence and expungement claims were moot.

On appeal, the Alabama Supreme Court rejected Breland’s claims.

First, the court explained, Breland did not obtain a vested interest in filling the wetlands, despite his significant expenses in permit applications, approvals, and preparing for development. Though physical improvement may not always be required, the court found that Breland’s “lack of physical improvement to the property, combined with other equitable considerations,” prevent such an interest.

The court added that the city was empowered to adopt ordinances for public safety, health, morals, and general welfare, and the wetland protection ordinances were not preempted by state law because the legislature did not clearly express intent to create field preemption for wetlands regulation in either the Alabama Environmental Management Act or the Alabama Water Pollution Control Act. The ordinances do not conflict with state law on wetland regulation either; rather, they “merely enlarge” the state’s regulations.

Further, the trial court did not commit palpable error in finding that the ordinances are “designed to minimize harm and impacts to the environment and adjacent property owners” and are not de facto zoning laws. The ordinances impact what land can be used for. “The fact that regulations limit the type of activity that take place on real property, however, does not convert them into zoning laws.”

Breland’s negligence and expungement arguments were found to be moot.

Breland v. City of Fairhope, 2020 WL 7778223 (Ala 12/31/2020)

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