FAIRHOPE, Ala. — The city’s planning department has recommended to the Planning and Zoning Commission that it give final plat approval to Fairhope Village at Fly Creek subdivision to include setbacks along Fly Creek, instead of the more environmentally protective wetland buffers.

If the commission follows that recommendation Monday, it would reverse the action it took three months ago when it approved the subdivision with the condition that the developer “add a stream/wetland buffer to the plan that meets the requirements of the current City of Fairhope Subdivision Regulations,” according to planning department records.

The proposed 38-acre subdivision is the residential phase of a planned unit development that includes the Publix Super Market and shopping center on Greeno Road. The property is owned by Arthur Corte, and Volkert & Associates Inc. made the application for final plat approval.

“I was told that this would come up at this planning and zoning meeting and that it would be over this issue,” said Jim Horner, chairman of the Fairhope Environmental Advisory Board, who advocated for the use of wetland buffers at the commission’s September meeting. “I’m not surprised.”

The planning department’s recommendation to approve the applicant’s final plat “as requested” would result in the use of setbacks instead of buffers.

“The applicant contends the 50-foot wetlands buffer approved by the Planning Commission on Sept. 8, 2009, is not a requirement of the PUD Ordinance 1317,” the department’s recommendation states. “The applicant further contends that, because the (ordinance) addresses setbacks and buffers, the (ordinance) supersedes the wetland buffer requirements of the City’s subdivision regulations.”

The department’s recommendation states that planning staff has consulted with the commission’s legal counsel regarding the issue of buffers and setbacks, and that the attorney will be present at the Monday meeting.

That attorney, Chris Gill, spoke to the commission at its September meeting regarding that issue, and the commission then approved the project subject to the use of buffers.

Since that meeting, the commission met privately in executive session in November to discuss “controversies not yet being litigated but imminently likely to be litigated or imminently likely to litigated if the Commission pursues a proposed course of action,” according to Gill’s letter to the commission, which was required by the state Open Meetings Act prior to holding such a closed meeting.

“I have heard that several people with the city do not want to be involved in a lawsuit over this issue,” Horner said.

Neither Gill nor the city’s planning director could be reached immediately for comment by press time to confirm that an intent to sue over the wetland buffer issue had been filed against the city and was the topic of the November closed meeting of the commission.

The Planning and Zoning Commission meets at 5 p.m., Monday, Dec. 7, in City Council chambers.