HomeMy WebLinkAbout06-24-1963 Regular MeetingSTATE OF ALABAMA
County of Baldwin
The City Council' of the City of Fairhope met
City Hall, Monday„ J-Une 24, 1963 at- 71130 P..M.
presentr Mayor Schnaider, Councilment Boone.,.
Schermer*
in regular session at the
with the following members
Gaston, Nelson, Poser and
The: minutes of the previous regular meeting were approved.
This being date set for opening bids on Airport -construction, the fol. l ow-
i ng bids were received and read to the: Counc i I. s
Cola Construction Co., I:nc., Mobile. $ 78.783.04
Farmer -Construction Co.,.M.obile 74.866.90.
H. 0. Weaver Construction Co.,, Bight Mite 74,476.55
Williams and Bouler Construction Co., Ince Mobile 68,167e52"
Col.qu i'tt and Jackson Construction Co., tnc. Mob i I e 70,638.06
Motion by Councilman Schermer secondediby Councilman Gaston that the bids
be accepted and submitted to the Airport-Board"for evaluation and awarding
of contract to. low bidder. Motion carried,"
Mr. L1oydiand Mro Bryars of the Southern Bell Tel.ephone Company outlined
the. emergency reporting and alerting system for the: Volunteer Fire Depart-
ment: Mr.. Byrne, Mr. Dyson, Councilman Nelson and the f= i re Chief were
appointed: as a committee to further check the system and report to the
next regular meeting of the Council.
Mrs.. M i I l ham, requested: u se of the Mun i CI pa I P i er f or sa is l tnq par t1 es.
After a general discussion, C=ouncil,man Schermer moved, seconded,by Council.
man Poser, that the request be tabledfor further study anda, written
op:ini:on, from: the City Attorney. Motion carried.
Mr. John Duck,. represent i ng; Mr. L. D. Littleton, requested, help from the
City in securing, right'---of-way to Mr. Littleton*s property in order for
h i.m: to obta i n a bu i I di ng perm i t. Mot iron by Gounci [man Boone seconded by
Gounc:i Iman Gaston that the Mayor be authorized to contact- Mr. Cumbie to
olita i n they necessary right -of -►way upon recatpt of evidence that Mr.
Littleton and the Fair.hope Single Tax Corporation will furnish the necessar y
right-of-way deed. to the City to extend Kirkman Lane and. upon-, approval of
the Planning Board:. Motion carried.
Motion by Councilman Schermer seconded..by Councilman Poser that Ordinance
#309•, amending Airport Board Ordinance„ be adopted as introduced at the
regular meeting of June 10, 1.963. Motion carried.
Motion by Councilman Schermer seconded. by Counc i I man Gaston: that the b i l
of AWort Eng;i neer: i ng, Company in the amount of $2,479'.50 in connection with
plans. and. specifications on Municipal Airport and,under the terms of their
contract, be, approved for payment-. Motion carried.
Motion by Councilman khermer seconded by Councilman Poser that the City
accept proposal of Dixie Labora:toriies, Inc., dated June 13, 1968 for
mater: Tai testing and inspection at Municipal Airport for *
.or, a� fee of l�
per cent of. the full construction contract price as recommended. by the
Fa i rhope. Airport Board. Motion carried*
ed.
Library resolution was held, for next- regular meeting, of the City Council.
Motion by Councilman Poser seconded; by Councilman Boone that the bill
submitted, by,,. -Ernest M. Bat ley and Richard Co Lacey, Attys.., in connection
with the gas system to: June I-, 1:963 in the amount of # 1!.I,00*00 be approve&
for payment-. Motion . carrri ed e
n S X'
Motion by Councilman Poser seconded by Councilman Boone that the fol,lowing
Resolution be adopted:.
WHEREAS, the -City of Fairhope has been negotiating, through
its attorneys,, with the Town of Daphne for the sale of its gas distri-
bution to the: Town of Daphne in accordance with a contract between the
parties dated January 23, 1950, and
WHEREAS, the negotiations pursuant to said contract have
failed and the Town of Daphne has filed a suit in the Circuit Court
of Baldwin County, Alabama, in Equity No. 6648, for a. determination
of its rights and the price to be paid the City of Fairhope for the
distribution system under the terms of said contract, and it is now
necessary for the City of Fairhope to defend the suit filed by the
Town of Daphne, now, therefore?,
BE IT RESOLVED, that the City of Fairhope employ, and does
hereby employ, Ernest M. Bailey and Richard C. Lacey, as its attorneys,
to defend said suit in,behalf of the City of Fairhope, and does hereby
instruct said attorneys to take all necessary action in behalf of the
City of Fairhope to defend its interest in the suit now pending in the
Circuit Court of Baldwin County,, A l abame.-
BE IT FURTHER RESOLVED, that said attorneys are hereby
authorized to expend a sum not- to exceed $2,000.00, in beha l f of the
City of Fairhope, to procure and develcp such technical information as
they may deem necessary for the defense of said suit
Upon being put to vote the following vote was recorded: For: Councilmen:•
Boone, Gaston, Poser and Schermer. Against: Councilman Nelson. Motion
carried.
Motion by Councilman Poser seconded by Councilman Boone that the City
accept supplemental agreement with Moore Engineering Co. for inspection
and: supervision of construction of Municipal Airport in accordance with
request of the Fairhope Airport Board.. Motion carried.
Motion by Councilman Boone seconded by Councilman Gaston that bill sub-
mitted by E. G. Rickarby and. J. B. Blackburn, datedJune 1.1, 1963, be
approved for payment. Motion carried•.
Motion by Councilman Gaston seconded by Councilman Poser that the bill of
Brumfield Construction Co. for Beach Rest Rooms be paid out of the Electric
Fund. Motion carried.
Letters of complaint on low voltage were turned over to the City Attorney
and General Superintendent for study.
Motion by Councilman Boone: seconded by Councilman Neilson that Ordinance,
#304, rezoning from R-2 to B-I, Block One and Block Three, Hoyle -Worcester
Addition, introduced at the regular meeting of June 10, 1963 be adopted
as introduced. Motion carried.
Motion by Councilman Nelson seconded by Councilman Boone that the applica-
tion of L. A. Dunham for beer permit at Community Store on Greeno Road be
rejected. Upon being put to vote the following vote was recorded: For:
Councilmen: Boone, Gaston, Nelson and Poser. Against: Councilman Schermer.
Motion carried.
Council agreed that the 1963 Street Improvement assessments be paid on a
ten year basis with (f. interest.
Request for Ad in Southeastern Shrine: Association Convention pamphlet
held for next regular meeting.
Mr. Dyson presented: plans for tnctreas i ng water pressure In Sea Cliff t
Dogwood„ Pecan and Fig;Street areas. Motion by Councilman Nelson that
City i.nsta I l the three water lines as presented by Mr. Dys:) n. Motion:
died. for lack of.- second. Report tabled. for further study..
The: committee on water rates, reported; to. the Council. City Attorney was
instructed: to draw up Ordinance" amending water rates outside the: City
Limits to $3.50 mi.nismuru
Letters from the Single Tax.Coaony and Material Sales Ca:., Inc., pertain`►
ing,to:land and improvements joining the City Hall property on the North,
were read,, d.i scu ssed, and: tab I ed for add i t i'ona l i nformat t;mo.
The Fairhope Casino was discussed;and. tabled.
Motion by Councilman Boone seconded, by Councilman Poser that Mr. Dyson be
au thor i zed to proceed, with bJ:acktop- at the new City Garage according, to
plans, based on the C i:ty purchasing matertal s. and authorizing 20X per yard
for:" labor and egi.i:pment to lay ble4ktop. Motion carried:.
Letter,- from Mr. Harley Frye: was read to the meeting.
The Council requested. that the agenda for council meeting be prepared on.
Fri. -day before the negW ar meeting n i:ght..
Motion by Councilman Schermer seconded by Councilman Poser that the meet-
ing, adjourn. Mot iron carried'.
Approved
MayoTr
Attest: -tt n
ity Clerk
9 n�
319 MAGNOLIA AVE.
WA 8 ZIVI
JOHN V. DUCK
RICHARD C. LACEY
ATTORNEYS AT LAW
FAIRHOPE. ALABAMA
June 21, 1963
Mayor and Council
City of Fairhope
Fairhope, Alabama
Gentlemen:
I represent Mr. L. D. Littleton, Sr., of Fairhope, Ala-
bama, who recently applied for a building permit to build a new
home on his property situated adjacent to the east of Mr. J. T.
Cumbie on Section Street of Fairhope, Alabama.
The building inspector denied the permit and so notified
Mr. Littleton.
On February the 18th, 1963, Honorable E. G. Rickarby,
City Attorney of Fairhope, Alabama, wrote an opinion for the City
wherein he stated that Sections 105-7 of the Southern Standard
Building Code provides that before a building permit can be issued
the applicant must show the lines of the public street on which
he proposes to build. Further, "In this case, he does not pro-
pose to build on a public street; therefore, he has not done this
so a building permit should not be issued."
Mr. Rickarby further states in his letter,"In this case
I think this is a case where Mr. Littleton should hire his own
attorney and condem, a way of necessity under the provisions of
the law allowed for individuals to do this."
Mr. Littleton then brought his problem to me and ac-
cording to the law that I have found concerning the individual
condemnation under Title 19, Section 56, a law of the state of
Alabama only allows an individual the right of condemnation as
follows: "The owner of any tract or body of land, out side the
corporate limits of a municipality, no part of which tract or
body of land is adjacent or contigous to any public road or high-
way, shall have and may acquire a convenient right-of-way not
exceeding in width thirty feet over the lands intervening and
lying between such tract or body of land and the public road
nearest or most convenient thereto."
This seems to well establish that Mr. Littleton has no
right under the law to condemn a right-of-way as an individual,:
' .�;.$p..;.�;4dN4V-�� :w..6u'i:.yyas.yyp. 3'•- ' v- :x K ..: ,. . r,._M!'iiL �t:'l�: y.:.r t�Y ^3 .'.qqD Zy,,.,.-, "iA!'� p'1:y
therefore, before Mr. Littleton can receive a building permit he
needs some help from the City for securing a right-of-way over
Mr. J. T. Cumbie's property consisting of approximately twenty -
feet on the north side thereof.
It is my understanding that Fairhope Single Tax Corpora-
tion owns to the north of Mr. Littleton and Mr. Cumbie's pro-
perty and have gone on record that Mr. Littleton and Mr. Cumbie
would furnish a right-of-way deed to the City for the south twenty-
five feet for an extension of Kirkman Lane that Fairhope Single -
Tax Corporation would furnish the north twenty-five feet beginning
on the east side of Section Street and continuing Kirkman Lane
east approximately five hundred and forty-six feet (546).
Mr. Littleton is more than willing to give the necessary
north twenty-five feet of his three hundred and ninety-four and
one-half feet )394-�), but it is my understanding that Mr. Cumbie
has refused on numerous occasions and still refuses to convey any
part of his property for the necessary right-of-way.
Mr. Littleton is in this position, that�.at the present
time, his home is in a very poor state of repair and he feels that
it is not economically feasible to repair the house in the con-
dition that it is presently in.
He proposes to build a new home in excess of Fifteen
Thousand Dollars ($15,000.00) but cannot do so due to the fact
that Kirkman Lane is not a dedicated street. It is my understand-
ing of the law that if the right-of-way could be secured from
Mr. Littleton, Mr. Cie and Fairhope Single Tax, and dedicated
as a street, then, and in that event, it would not be necessary
to open Kirkman Lane east of Section Street at the present time
but since it would be a dedicated street a permit could then be
issued for Mr. Littleton to begin construction.
Title 37, Section 507, etc, provides that whenever in the
necessary judgement of a council of a city or town, it may be nec-
essary or expedient for carrying out and full exercise of any
power granted by this Title, the said town or city should have
full power and authority to acquire by purchasing the necessary
lands, or rights, easements, or interest therein, thereunder, or
thereover, or fnr the purposes for which private property rqay be
acquired by condemnation, may proceed to condemn the same in the
manner provided by this chapter, or by the general laws of this
state, governing the taking of lands or the acquiring of interest
therein for the uses for which private property may be taken, and
such proceedings shall be governed in every respect by the general
laws of this state pertaining thereto, or by the provisions on
the subject contained in this chapter, when the same are followed.
-2-
Further, under Section 508 of Title 37, the Code pro-
vides that "whenever, in the opinion of the council, a right-
of-way through the lands of others is necessary for obtaining
a water supply, or for sewage, drainage purposes, and whenever
the council may determine to change the grade of any street,
sidewalk or public place, and whenever any property is needed
for any city or town purpose, the council should authorize the
Mayor to attempt to acquire such right by purchase from the
owner or owners thereof, and, in case of failure, to acquire
the same by condemnation.
Therefore, it would seem to me that if the Mayor and
Council is willing to help Mr. Littleton obtain the right-of-
way deed from Mr. Cumbie, the Council can authorize and empower
the Mayor to go to Mr. Cumbie and offer to purchase the same
at a reasonable market value, and if Mr. Cumbie then refuses,
the city can exercise its power to condemn.
I cite further for the support of condemnation for Kirk-
man Lane on the east side of Section Street Eighteen American
Jurisprudence, Section 58,
"To warrant the condemnation of land therefor, a street
or highway must be intended for the use of the public generally.
The name given the road or way, that is, whether the statute call
it a public or private way, is immaterial. Its nature is deter-
mined by the real effect, and not by the name. If it is intended
for the use of the public and maybe traveled by any person who
desires to use, the power of Eminent Domain may be properly ex-
ercised, although an individual or corporation may be deeply in-
terested in, or benefited by, the opening of the way, it may
accomodate some individuals more than others, it may accomodate
only a limited portion of the public or even only a single family,
it is to be used merely for pleasure purposes, or it is subject
to certain conditions as to its use, such payment of toll. The
test as to whether roads are public or private is how many have
a full and unrestricted right in common to use them. If the pub-
lic has the right to use the way at pleasure and on equal terms,
the way is a public one, although in reality it is seldom used."
Therefore it would seem under well established law, that the City
of Fairhope would have every right to condemn the north twenty-
five feet of Mr. Cumbie's property for an extension of Kirkman
Lane east for the five hundred feet (500) heretofore mentioned.
It is my understanding, at the present time Mr. Littleton has
been reaching his property across the lands of Fairhope Single
Tax Corporation, and the only reason that he was turned down for
a building permit, is because it is not a legal easement.
-3-
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At the present time where it would only be necessary
to obtain the north twenty-five feet from Mr. J. T. C,umbie
for the approximately one hundred and nineteen feet (119 ft.).
Mr. Littleton, and myself, respectfully request serious
consideration for aid and assistance from the Mayor and
Council of the City of Fairhope to obtain the necessary
rights -of -way so that Mr. Littleton can receive a building
permit and start construction of his new home, as well as
the Mayor and Council looking to the future development
and growth of Fairhope as a whole.
.J
JVD/oq
cc:
Hon. Joe Schneider -Mayor
Hon. E. G. Rickarby-City Atty.
Mr. L. D. Littleton, Sr.
Respectfully submitted,
Joh V. Duck, as Attorne\r
b,,. D. Littleton, Sr.,
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