FAIRHOPE, Alabama—At the tail end of its April 8 meeting, the City Council gave Mayor Tim Kant the authority to end the five-year-old “Dyas triangle” lawsuit in a proposed settlement, which would result in the purchase, with BP oil spill Restore Act funds, of those 108 wooded acres bordered by U.S. 98, Highway 104 and Veterans Drive, with an eye toward developing the property into a city park.

The proposed settlement of the Dyas v. City of Fairhope lawsuit—the remaining state claims of the once complex federal litigation now pending in Baldwin County Circuit Court—depends upon two conditions, according to attorney Caine O’Rear, whose Hand Arendall firm represented the city in the litigation, as reflected in the minutes of the April 8 meeting.

Those condition are: (1) “that the city be able to obtain the negotiated purchase price of $8.75 million exclusively through Restore Act funding through the BP fines process”; and (2) “that the Dyas family present to the city an appraisal of the 108 acres, which places a fair market value on the property of $12.75 million or greater, so that there is a $4 million spread between the amount of money that the city pays and the appraised fair market value of the property.”

The council unanimously gave the mayor authority to execute the settlement agreement upon those conditions being met, following a closed-door executive session to discuss pending litigation, one of the permissible exceptions to the state sunshine law that all council meetings be conducted in the open sessions.

After the executive session, the council voted to add the issue to the agenda, which was not included in the advance printed agenda circulated to the public before the meeting.

“We have been working for a number of months on a possible resolution,”O’Rear said, according to the April 8 council minutes. “The case has gone to mediation where a mediator has been involved helping to settle the case.”

The attorney said that Thompson Engineering had conducted a study that found the “number one way to address the watershed restoration of the area would be to purchase the property for public use,” according to the minutes.

If approved, the initiative funded by BP would be called the Fly Creek Watershed Restoration Project, according to the minutes.

In response to questions by some council members as to the likelihood of the city receiving the funds, Kant said “that we have had very positive reaction, especially when Sen. Sessions and Rick Dearborn made the comment this is the only environmental project that has come across their desks. They put people on it right away to see how we could get funds because most environmental projects are looking toward Louisiana,” according to the minutes.

Kant replied to Council President Jack Burrell that he would like to get $22 million for the total project, in order to develop a park area at the property, and eventually put a botanical garden there.

O’Rear told the council that once “the Dyas family feels comfortable that the city is able to get the funding, then they would go forward and get the final appraisal.”

The so-called “Dyas triangle” litigation involved federal and state claims brought by the Dyas family against the city, alleging that the city thwarted its efforts to develop its triangular-shaped 108 acres of property and illegally favored the “Corte rectangle” property across U.S. 98 in its development efforts, where a shopping center is now anchored by a Publix Super Market.

Most of the claims against the city were dismissed by a Mobile federal court judge, where the case had been moved not long after its filing in state court, with the remaining state claims being returned to circuit court in Bay Minette where the case began in the spring of 2008, where it is now pending.

State receives $100 million

In a related development, Gov. Robert Bentley announced Wednesday that Alabama will receive nearly $100 million in Restore Act funding for three proposed coastal restoration projects as part of the ongoing early restoration process following the BP Deepwater Horizon explosion and oil spill.

The new proposed projects approved for funding and detailed by Bentley on Wednesday, according to a news release, include:

(1) Gulf State Park enhancements designed to restore lost recreational use services and lost dune habitat services;

(2) Oyster reef restoration in Mobile County to restore approximately 319 acres of oyster reef in the estuarine waters of the state of Alabama; and

(3) a Swift Tract Living Shoreline project in Baldwin County that would construct an oyster breakwater/living shoreline to stabilize and protect 1.6 miles of shoreline from erosion by dampening wave energy while also providing a habitat for oyster colonization within the boundaries of the Weeks Bay National Estuarine Research Reserve south of Fairhope. 

Those projects would cost $85.5 million, $3.2 million and $5 million, respectively.

“We recognize that recovery is a long-term process, and these projects represent only a portion of our overall efforts to address the losses suffered by the Gulf Coast and the entire state of Alabama following the oil spill,” Bentley said in the release.  “This is an ongoing effort, and our efforts will continue to see that all of the injuries we have sustained are properly addressed.”