By Blenda Copeland
An outside judge has ruled in a Russell County Circuit Court case about sewer and water rights to a proposed commercial development adjoining the Neighborhood Walmart property on Highway 80 in Ladonia.
County Attorney Kenneth Funderburk spoke to The Citizen March 16, hours after the judge filed the order the previous afternoon. The order answers the county’s preliminary Jan. 22 filing in Russell County Circuit Court. The lawsuit requested preliminary and permanent injunctions to stop the City of Phenix City from laying claim to water and sewer rights in the police/planning jurisdiction area where developer Girard Partners LP (GPLP) intends to establish Ladonia Commercial Subdivision (LCS).
In an update, Funderburk said the judge overruled the city’s request to dismiss (the preliminary injunction) and did not grant the county its requested preliminary injunction.
The order, signed by Circuit Judge Roman Ashley Shaul, states that, “[…] At the end of the presentation of evidence all parties essentially agreed or acquiesced that the most reasonable temporary solution was to allow the subject property to be developed as planned. The issue of which party has the right to service the requested area should be reserved for the dispositive motions and/or trial phase of the litigation. […]” Further, the order states it “grants in part” and “denies in part” the request for the temporary injunction: “Specifically, the developer of the property shall be granted access to sewer and water lines that are currently set and capable of servicing the property. Any conduct or attempt at compelling the developer […] to choose which party to be serviced by is hereby restrained.” Also, the order states that “The Motion to Join Girard Partners, LLP […] is denied without prejudice with leave to refile at a later date, if needed. […]”
On Tuesday, the Phenix City Council was set to consider an ordinance on an economic development project with Girard Partners LP. The council was expected to discuss the ordinance at its 6 p.m. ET meeting, after Citizen deadline. The ordinance regards the city’s offer to issue a warrant to the project. The offer is made using Amendment 772 of the Constitution of Alabama – a power the city has previously exerted in other recent economic development projects, such as the renovation of the old Kmart plaza where Planet Fitness now sits.
“[…] Such warrant will evidence the City’s obligations under the Project Agreement to pay to GPLP, for a certain period of time, a portion of the sales tax revenues generated from the Project. […],” a March 15 legal ad in The Citizen states. The ad also states the project is “[…] to be developed and located within the municipal limits of the City of Phenix City […]” as outlined in the project agreement.
If the city council approved the ordinance Tuesday night, then according to the legal ad, it “would authorize the City” to enter the agreement with GPLP and issue the warrant.
Connected to the city’s offer to help the project via the ordinance, there’s also a March 15 legal ad advertising the city’s April 17 public hearing at 9 a.m. ET on Dudley’s signed request to annex the property into the city, zoned as C-4 (Highway Commercial District).
Funderburk said despite the city’s moves forward, the development can receive water and sewer services from whichever provider the owner chooses: the county or the city. “Nothing is cast in stone yet,” he said March 16. He later added that, ultimately, it’s the owner’s choice: “It’s in Menza’s hands,” he said, of whether the owner decides to go ahead with the city annexation or whether he ultimately changes his mind.
Even so, the City of Phenix City as of Tuesday appeared to continue moving forward with the project, as City Manager Wallace Hunter had indicated to The Citizen March 6.
Accordingly, the county isn’t showing signs of backing down, either.
“Now we move to the case in chief,” Funderburk said, relatively speaking. Overall, he said the case deals with the city’s exercise of powers in the police jurisdiction. Speaking generally, Funderburk said the next phase of litigation could go in different directions, depending on the judge. It’s not impossible that a jury trial could potentially arise. Litigation timeframes are hard to peg, but Funderburk said if he were to guess, this case could possibly take up to the rest of this year to resolve.
At Monday’s city council work session, City Attorney Jimmy Graham told The Citizen the city was happy with the judge’s order.
Graham updated the council about the part of the judge’s order saying the developer can’t be compelled to choose a particular service provider. He also noted the order didn’t stop the development’s annexation into the city.
“The annexation is going forward,” he said, further explaining that, “They’re going to hook a meter to the city’s line.”
Graham said if the county were to get a ruling in its favor later on, though, it would mean that the city would detach its meter and the county would install a county meter at the property. However, the city would still be selling the water, so, “Either way, it’s a win-win” for the city.
On a related topic, City Manager Wallace Hunter and Mayor Eddie Lowe talked about “fair game” when it comes to the City of Smiths Station via a letter informing people how they can annex into Smiths Station. A council member passed around a copy of the Smiths Station letter for information purposes.
“He’s doing what he’s supposed to be doing,” Hunter said of Smiths Station Mayor F.L. “Bubba” Copeland’s efforts on annexation.
At the same time, Hunter also pointed out that the City of Phenix City also treats sewer for the City of Smiths Station.
When talking about annexation and the ability to support the accompanying infrastructure that comes with it, Hunter said no one’s trying “to step on anyone’s toes, but it’s fair game.”