FAIRHOPE, Ala. — The City Council established a moratorium Monday on “land disturbance permits” that have a negative impact on wetlands within city limits and the city’s building permitting jurisdiction.

The moratorium on the issuance of such permits by the city’s building inspection and permitting department became effective immediately and will end Oct. 15, unless the City Council terminates it earlier, according to the new ordinance.

“The purpose of the ordinance is to allow the city to tighten up stormwater ordinances to not allow land (disturbance) permits during this time,” Council President Bob Gentle said.

The building permit jurisdiction extends approximately a mile and half beyond city limits, said Jonathan Smith, a planner with the city planning department. That area is different than the planning jurisdiction area, which extends several miles farther, he said.

“If we get to the (stormwater) ordinances before then, we can lift the moratorium at that time,” Mayor Tim Kant said.

Land disturbance permits are not required when a property owner is only clearing brush from land they own, but applies to more significant disturbances of the dirt or removal of major trees from the property, said Barry Fulford, city building official.

“We want to save as many wetlands as possible because of the positive impact they have on stormwater runoff,” said Fulford. “The more you take away from these areas that naturally soak up water, the more runoff you’re going to have that ends up in the bay through sewers or creeks.”

That kind of runoff carries dirt from construction sites and other possible pollutants, he said.

Fulford said that a slowdown in local construction made this a good time to address the issue, since it would have less impact on proposed construction projects in the area.

Councilman Cecil Christenberry questioned whether the city had the authority to pass the ordinance, pointing to a similar action proposed by the county earlier this year. That action was opposed by the U.S. Army Corps of Engineers, which stated they had primary jurisdiction over wetlands issues, he said.

“The city can impose requirements that are more stringent than (those of) the Corps,” Smith said.

Kant said the difference was that the city’s authority was based on the its constitutional “police powers” to act within its jurisdiction, which the county does not have.

During the work session before the council meeting, Christenberry also questioned whether passing the ordinance would lead to litigation.

Kant said that was a possibility.

At the last council meeting, the council went into executive session to discuss privately whether a proposed course of action could lead to litigation. The council did not comment Monday whether that executive session was to discuss the possible litigation impacts of the ordinance passed Monday night.

“I understand why we need this,” Councilman Mike Ford said during the work session Monday. “But it also seems like another government intrusion into private property rights.”

Ford said he abstained from the vote Monday because of the possible impact the ordinance could have on timber harvesting on land he owns in the area.

The other four council members voted in favor of the ordinance.

Relevant Law

The ordinance passed by the City Council establishing a temporary moratorium on certain land disturbance permits states its purpose as follows:

“Whereas, the City of Fairhope has adopted ordinances that regulate development and construction within the City’s corporate limits and building permit jurisdiction; and Whereas there has been rapid and substantial growth and development in an around the City of Fairhope; and Whereas the growth and development in and around the City of Fairhope has resulted in the loss of certain sensitive environmental wetlands; and Whereas the City Council recognizes that wetlands are fragile natural resources which serve a number of functions including pollution control and protection of water quality, flooding and stormwater control, and which provide habitat for fish, wildlife and vegetation; and Whereas the City Council desires to address the preservation of wetlands; and Whereas the City Council has determined that the adoption of a moratorium on the issuance of land disturbance permits for activities that will or may result in the loss, fill or destruction of wetlands is appropriate to prevent conditions that may threaten the health, safety, and welfare of the community; and Whereas placing a moratorium of limited duration and limited scope would be in the public interest and promote orderly growth and development.”

The ordinance defines “wetlands” as follows:

“Wetlands are those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. Wetlands shall specifically included, but are not limited to, areas of wetlands delineated as jurisdictional by the Unites States Army Corps of Engineers.”