FAIRHOPE, Ala. — The Planning and Zoning Commission reversed itself Monday and voted 5-3 to approve a subdivision request with setbacks along Fly Creek instead of the more environmentally protective wetland buffers required by current regulations that it recommended in its order three months ago.

That decision followed the advice of the commission’s attorney, Chris Gill, who offered a legal opinion Monday that differed from the one he gave the commission at its September meeting, which resulted in the commission’s approval of the project but subject to wetland buffers along Fly Creek.

At the Dec. 7 meeting, Gill gave a new opinion, which advised the commission to follow the planning department’s recommendation and would result in the commission changing the position it had taken in September. That September action by the commission included a recommendation on how property along Fly Creek should be handled by the developer of the residential phase of a mixed-used project that includes the Publix Super Market and shopping center on Greeno and Parker roads.

“The planning commission approved (the project) subject to a condition that the developer comply with the city’s new stormwater buffer requirements in its subdivision regulations,” Gill explained at the start of his explanation for why he had come to a different legal conclusion about whether the commission could require wetland buffers over setbacks. “Subsequent to that (September meeting), I was contacted by (property owner) Mr. (Arthur) Corte’s legal counsel and was informed that they were going to take a look at this issue a little bit further, that they weren’t confident or comfortable that the city or planning commission could do this,” he said. I agreed to take a further look at it myself, and that’s why it’s taken a few months to get back to you. I think at this point to impose — as we’ve kind of stepped back and looked at this a little bit further and a little bit harder — to impose additional requirements of Mr. Corte relative to the buffers that were not in his original bargained-for (planned unit development) would step outside of the PUD process, and I think possibly would be violative of his rights under the PUD.”

When the commission approved Corte’s subdivision request in September subject to the new wetland buffer requirements, it raised questions about whether Corte would follow through on an oral promise that Fire Chief John Saraceno said was made to the Fairhope Volunteer Fire Department. That promise was to donate to the fire department a small parcel of the project property on Parker Road behind the Publix Super Market, where a fire department would then be built. Saraceno said the fire department had spent more than $10,000 in plans and surveying of the property prior to the September meeting.

At Monday’s meeting, about a dozen fire fighters in uniform attended the meeting with some fire department vehicles parked in front of the building.

“As long as there are no other hurdles, I expect that we will be moving forward to build a fire station on that property,” Saraceno said Tuesday, regarding the impact of Monday’s commission decision on whether Corte’s promised donation of property will now go through.

Corte did not immediately return a phone call for comment left on the voice mail of his business telephone at Corte Land and Cattle Co.

After Gill’s opinion Monday and several residents spoke in favor of wetland buffers, the commission voted 5-3 to give final approval for Fairhope Village subdivision without the more environmentally protective wetland buffers. That vote followed a motion made by commission member Councilman Lonnie Mixon to approve the project conditioned on the use of wetland buffers along Fly Creek. That motion was defeated 5-3.

Prior to the votes, Gill’s new legal opinion was questioned by Mixon.

“Ninety days ago when you were here, you told us that if a developer had not started his work on a piece of property, and the rules had changed, you told us there was a good chance that he would have to go by the new rules, is that correct?”

Gill responded that he did say that and explained his change of position on the legal issue.

“In preparation for that meeting, I didn’t do a whole lot of looking at the legal issues because nobody had essentially, from Mr. Corte’s side, had challenged this particular order.” Gill said. “He didn’t really challenge it until afterwards. Once Mr. Corte sort of challenged what the planning commission did in that case, I went back and took a further look, talked with some of the litigators in our office who have litigated PUD cases, and also did some additional legal research and have come to the conclusion that a PUD is essentially a different creature with respect to zoning law. It is treated differently than general zoning ordinances because of the negotiations back and forth between the zoning authority, in this case the city, and the developer.”

Mixon then asked Gill, “if we impose the wetlands buffers, we would have a lawsuit. Is that what you’re saying?”

Gill said he couldn’t predict what Corte would do, but that the developer “would have a very good argument.”

Gill, a private attorney who works on a contract basis with the commission as its attorney, is a member of the Hand Arendall law firm, currently defending the city of Fairhope and Mayor Tim Kant, in an individual capacity, in complex federal litigation. That lawsuit involving claims that the so-called “Dyas triangle” property across U.S. 98 from the Fly Creek PUD was treated unfairly compared to the Fly Creek development, such as the approval to build the 54,000-square-foot Publix Super Market, a similar request of which was denied to the Dyas family. That lawsuit in the federal district court is set for trial in May next year.

Part of the commercial phase of this project, which is owned by Fairhope LLC, was the subject of an $11,000 administrative fine by the state environmental agency this year for alleged violations of clean water laws stemming from the construction of that supermarket and shopping center.