ORANGE BEACH, AL – Developers of a new 12-story tower, well within the zoning height allowances, are facing a new problem with the width of the project at ground level.

Three owners trying to rebuild on a spot where an eight-condo complex destroyed by Hurricane Ivan in 2004 once sat, had hoped site work would be under way by now. But after a recheck of surveys the city believed the 20-foot setbacks from the east and west sides of the property were out of whack.

The city then notified Perdido Dunes Tower it intended to revoke the permit, but the owners filed a lawsuit before the revocation to stop the city from stopping their project.

“The setback was calculated not from the actual property line that was shown on those plans as being the property line of the owners, but from a retaining wall that was about five feet to the east of it,” Spencer Davis, the attorney handling the claim for the city, said. “The building official gave notice that he intended to revoke their building permit based on the setbacks not being sufficient. And I understand the planning department gave them some time to come in to show them a deed or something that shows ‘yes, we actually own this property’ and nothing was ever produced.”

The question is now before judge Robert Wilters who could rule as early as this week.

The proposed tower was the subject of other litigation for years between the Perdido Dunes Condominium Association and the Perdido Dunes Tower Association before getting a final go ahead in November. It is located on a lot between Phoenix East and Phoenix VIII. It fronts the Gulf just west of the Perdido Pass bridge.

The lawsuit between the competing sister associations on two parcels at the site began in 2007. There is currently a row of two-story condos on the northern half of the parcel which survived Ivan, but were damaged.

In November, when the lawsuit was finally settled and the tower had the go ahead needed to be built, Orange Beach’s permit gave them until April 19 to start work.

A groundbreaking planned for April 14 was canceled. Orange Beach had made known its intention of revoking the permit on April 6 and the group representing the tower asked a judge to delay the revocation until the setback issue was resolved.

“If we revoked it they would have to come back to try and fix it some other way,” Davis said. “Also if they didn’t file suit while they were trying to prove this (the permit) would have expired.

“The judge entered a temporary restraining order after they filed the suit keeping us from revoking the building permit and keeping them from going forward and doing any construction on it. Basically the judge entered an order for maintaining the status quo until these other issues could be litigated.”

There’s a good chance this development, already the subject of a long delay of years, could be in for another long haul.

On April 21 Phoenix East entered a lawsuit against Perdido Dunes Tower claiming that setback intrudes on its property. On April 25 both sides presented documentation to Judge Wilters to consider in the action.

According to the suit, Perdido Dunes Tower is “claiming to own the same, being part of the same property described in the caption of this Complaint, and has held said lands for a period of thirty-two (32) or more consecutive years next preceding the filing of this Complaint, and has held said lands for a period of twenty-two (22) years since the construction of Phoenix East, A Condominium.”

According to court documents, Phoenix East put up the retaining wall in question in 1993.

Davis said the city has no role in this litigation between the two neighbors, but the final ruling will determine whether or not the city’s revocation of the building permit will be enforced.

“If the judge tells us they own it, they can move forward,” Davis said. “If the judge says they don’t own it, then we have to move forward and revoke it.”

Which would be another set back to the three owners wanting to put up the tower. According to plans it would be 12 stories with two parking deck levels and 10 floors of condos with two units per floor.

The property meets all the other requirements of its official zoning of Beach Resort, High Density. Any multi-family or commercial structure has to have a 20-foot setback from the property lines to be in compliance.

Davis said he was uncertain of what would happen if it is ruled Perdido Dunes Towers does not own the land in question or if they will apply for a variance if the ruling favors Phoenix East.

“I don’t know which way it will go,” he said. “From what I understand they’ve got a lot of money invested in it and if they have the right to the property, the city doesn’t want to stand in their way to build it. We can’t let them build it in violation of our planning and zoning ordinances.”