FAIRHOPE, Ala. - A ruling could come as early as today in the latest phase of a circuit court lawsuit brought by two Fairhope residents to block the city’s construction of a wooden landing at the western end of Nichols Avenue overlooking Mobile Bay.

Last month, City Attorney Marion “Tut” Wynne reported to the City Council that a Baldwin County court had issued an order temporarily stopping construction of the landing. A hearing was held Tuesday before Circuit Judge Robert Wilters in Bay Minette on plaintiff’s motion for a preliminary injunction that could prevent construction of the overlook until a final trial in the case.

“He told us that he would try and have a ruling by the end of the week, but it might actually be into next week,” attorney Daniel Blackburn said Wednesday. He represents Gardiner Green and Thomas Millette, whose bayfront houses are located on the north and south sides of Nichols Avenue where it dead ends on the western side of South Mobile Street in a graveled turnaround.

“We think the city is exceeding their legal authority by attempting to construct improvements in a public street,” Blackburn said. “We think everything that is out there about Nichols Avenue indicates that the right of way goes to the bay.”

On a grassy area between the turnaround and the bay is a cordoned off area of lumber stacked about a month ago that was to be used to build the wooden overlook landing.

“The issue in the case is whether or not the city has the authority to build an observation deck on a public right of way,” Wynne said Wednesday. “The plantiffs are characterizing that as an obstruction to a public right of way. The city’s position is that this is not an obstruction to the public right of way. It’s being built in an area that would never be used for vehicular traffic, and it’s being built for the use and benefit of the public.”

Another issue in the case is whether the construction will cause “irreparable harm” to the plaintiffs, which would be necessary to show to support the preliminary injunction, he said.

“We argue that they can’t show irreparable harm because the area is already open to the public,” Wynne said. “The fact that there’s going to be a deck there that the public can sit on doesn’t change that.”

A number of residents who live on Nichols Avenue east of Mobile Street have tried for more than a decade to have the city build an overlook landing on the bay at the western end of Nichols Avenue.

“In 1999, a lot of people in the neighborhood sent a petition to the city to have a landing built there,” said Dale Cunningham, a Nichols Avenue resident who appeared at several council meetings this year regarding the issue and was also at Tuesday’s court hearing. “(Mayor Tim) Kant said as soon as he was elected he would have that landing built, so that all the people on this street could use it to walk down and watch the sunset.”

Cunningham said “it kept getting put off” and then hurricanes later delayed construction of the landing. But about three years ago, residents were then told that the city didn’t have the money to build the deck, she said.

“They said it would cost $1,500 for the landing and to put some little stairs in there,” she said. “I had a meeting at my house with all the people, and we got a pledge for that amount and took it to the city.”

Shortly after that, the city told residents that the Fairhope Single Tax Corp. had volunteered to pay for the landing,

In April, the city council heard from the president of the Fairhope Single Tax Corp., who said his organization deeded property to the city along the bay from Nichols to White avenues in the 1930s as a public park, and they would donate funds to have the landing built.

“They put the materials down there to start building and then Green and Millette filed to stop it,” Cunningham said.

Blackburn said his clients do not contest that property along the bay in front of houses between Nichols Avenue and White Avenue, where there is an overlook landing and public pier, is public property. But he said that public land does not extend all the way to where the landing would be built.

“The city does own that property,” he said of that bayfront property between Nichols and White avenues. “But that does not include the land where Nichols Avenue has been dedicated.”

Cunningham said current plans for the landing include two decks connected by a staircase.

“I thought it was just a single deck but now understand that it will be an upper deck approximately 18 feet by 20 feet with a lower deck approximately 12 by 20 feet,” Councilman Rick Kingrea stated in an e-mail Thursday.

If the court rules for the plaintiffs on their motion for a preliminary injunction, all construction would be prevented until they held a trial on the merits, Blackburn said.

But if the court denies the injunction, then “the city can go ahead and construct the improvements at the risk of having to tear them down at some point in the future,” he said, if the plaintiffs ultimately prevail at trial.