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Friday, May 26, 2023

These Alabama Residents Are Trying to Block a New ‘Mega Structure’ Vacation Home Using Every Legal Trick in the Book

How a beachside vacation home became a NIMBY battleground.

Image Credit: paulbr75 - Pixabay

“The community is watching this project like a hawk.”

Those were the words of Paul Stanton to Baldwin County officials concerning a 3-story, 14-bedroom duplex called Breezy Shores that was set to be built on the Gulf of Mexico in Fort Morgan, Alabama. Thanks to Stanton’s lobbying efforts and some creative legal maneuvering, county officials revoked a land use certificate (LUC) that had been granted to the Breezy Shores project and issued a Stop Work Notice, halting construction that had just begun on the site.

That all happened in 2019. Since then, Breezy Shores filed a federal takings claim against the county and won. But now the county is appealing, so the litigation continues, with the Pacific Legal Foundation helping to defend the venture.

While the legal technicalities are interesting enough, what really makes this story remarkable is the way the Fort Morgan community consciously and systematically weaponized these technicalities against the project. The efforts of an entrepreneur to turn a neglected beachfront lot into a successful vacation rental home were resisted at every turn, not because the project was dangerous, but simply out of naked self-interest.

The Pushback Begins

Mike Bordelon is a retired computer engineer and the entrepreneur behind Breezy Shores. He got started in the vacation rental business by renovating old homes and offering them as rentals for a few years before selling them and using the proceeds to start on the next project. After a while, he developed a taste for a bigger challenge: building new vacation rental homes from scratch.

The first home he built was EZ Breezy, an 18-room, three-story waterfront duplex. After finishing that project in 2015, Mike went on to build two other projects before turning his sights toward Breezy Shores, which would be located right next door to EZ Breezy.

The lot was purchased in February, 2018 and the land use certificate application was submitted along with the site plans on March 19, 2019. Four months later, on July 17, they received the approved land use certificate, and on July 23 they got their building permit, at which point they began developing the site.

Eight days later, on July 31, the Stop Work Notice was issued, a complete surprise to Breezy Shores. The reason for the order was that the site violated a zoning ordinance that prohibited stacked parking, which is when parking spaces are built one behind the other, such that an outer car can block in an inner car. Breezy Shores had stacked parking, but had no idea that this would be an issue.

Why the miscommunication? As it turns out, there are some ambiguities around the specific ordinance in question. Though the language seems to apply to any parking, the ordinance was understood by the planning department to only apply to commercial developments. Residential developments with stacked parking had been approved for years without question (EZ Breezy was one of them).

Why the sudden change in interpretation? The Answering Brief lays it out.

“What changed between March 2019 (when Breezy Shores submitted its LUC application with stacked parking arrangement, with no objection or request for revision by Baldwin County) and July 31, 2019 (the date the LUC was revoked as a putative result of the stacked parking arrangement) was that Baldwin County and [Vince] Jackson [the Baldwin County Planning Director], in particular, came under pressure from one specific member of the community to adopt a new interpretation of the Parking Ordinance that would prohibit Breezy Shores’ planned Site development.”

That member was Paul Stanton.

Stanton, it should be noted, owns a two-story vacation rental home of his own across the street. In addition to the competition that Breezy Shores would bring (and which EZ Breezy was already bringing—Stanton opposed that project too at the time), Breezy Shores would also block easy access to the beach from Stanton’s property.

“Stanton was opposed to Breezy Shores’ construction on the Site,” the Brief continues, “at least in part because he had a website advertising access to the beach through Breezy Shores’ lot. (Appendix Vol. I at p. 588 (Bordelon’s testimony); see also id., p. 589 (‘[Stanton] even had a large arrow drawn on his website saying enter the beach here, the arrow pointed right in the middle of our empty lot, which was the Breezy Shores lot.’))”

From May through July, Stanton sent a series of emails to Jackson and Linda Lee, one of the planners, “demanding that stacked parking spaces at the Site should be deemed a violation of [the ordinance].” Lee pushed back at first. “It is staff’s opinion that the language pertaining to ‘unobstructed ingress and egress’ refers to a more traditional parking lot found in commercial settings,” she wrote. “We are aware that it is an issue and it may be addressed in a text amendment.”

“I respectfully disagree with this determination,” Stanton immediately replied. “I respectfully request a determination by the Zoning Administrator which is appealable. I do believe an error has been made in the interpretation of the parking rules.”

“Lee’s reaction to Stanton’s ‘barrage of emails’ was that Stanton was ‘trying to catch us in some kind of trap,’” the Answering Brief notes.

In early July, Jackson acquiesced. He sent the language of his new interpretation to Stanton, to which Stanton replied, “Thanks Vince. This is great.” However, Jackson only mentioned the policy change to Linda Lee and Wayne Dyess, the County Administrator. When Crystal Bates, the planning technician, approved the land use certification on July 17, she had no idea the change had taken place.

But Stanton was not about to let his efforts go to waste. On July 30 he emailed Jackson noting that construction had begun. “If this has NOT been approved, Construction and Pyle [sic] driving should stop immediately tomorrow morning (7/31/19.).” Realizing what had happened, Jackson had the Stop Work Order issued at 9:15am the following day.

A Convenient Delay

Unfortunately for Breezy Shores, the legal shenanigans were just getting started. After receiving the notice that their land use certificate had been revoked, they changed their plans and submitted a revised Site plan that complied with the new interpretation. They didn’t agree with the interpretation, but figured this would be the easiest way forward. On August 16, Linda Lee notified them that they would need a revised incidental take permit (ITP) from the United States Fish and Wildlife Service (USFWS) before they could resume construction. They applied for the permit shortly thereafter, and William Lynn, a biologist at the USFWS, confirmed receipt of the application on August 20.

On October 2, Lynn notified Breezy Shores that the permit “is very close to being issued, hopefully later this week.” The revised permit wasn’t actually issued, however, until October 25. Why does this matter? Because on October 15, Baldwin County “enacted a brand-new zoning ordinance limiting the height of single-family and two-family structures in Planning District 25 [which includes Fort Morgan] to two habitable stories.” The plan for Breezy Shores, you’ll recall, was to be three stories.

Upon receipt of the revised permit on October 25, Breezy Shores immediately forwarded it to the county and requested that the Stop Work Order be lifted. But it was too late. On November 5, Jackson sent an email to Breezy Shores outlining the ramifications of the new ordinance.

“A new issue has arisen regarding this property and the proposed duplex structure,” Jackson wrote. “When the stop work order was imposed, the land use certificate application was rescinded and denied. As a result, there was no pending application at the time the text amendments were adopted [October 15]. A new land use certificate application, which shows compliance with all current zoning requirements including the [Story Ordinance], will be required to move forward. [A] duplex (two-family dwelling) with three habitable stories cannot be approved.”

In other words, had the USFWS issued the revised permit just a few weeks earlier, as it seemed they were planning to do, the brand-new two-story limit wouldn’t have applied. But as things stood, Breezy Shores was being forced to take an entire story off its building, a change that would be financially crippling and, as a result, might even force the project to be scrapped altogether.

Perhaps this was all just an unfortunate coincidence? That’s certainly what the county is arguing. But the timing is convenient. A little too convenient. It’s almost as if the USFWS intentionally delayed their issuance of the revised permit until after the new ordinance was passed so that Breezy Shores would be forced to take a story off their plans.

Now, whether the delay was intentional or not is impossible to prove. But the evidence that exists is pretty damning.

“It remains unclear exactly what happened at the USFWS between August 20 and October 2,” the Brief states. “The record reflects that certain non-party property owners in Fort Morgan actively lobbied Lynn and the USFWS to delay issuing a determination on Breezy Shores’ application for a revised ITP. For example, on August 21, 2019, a property owner sent an email to Lynn that included the following passage: ‘Again, please help us delay [the Site] anyway you can. This new parking interpretation and the proposed 2 story limit will dramatically reduce the size of these mega structures.’ (Appendix Vol. I at p. 959). This email attached a copy of a proposed new Baldwin County ordinance limiting single- and two-family structures to two stories and observed that the Site ‘is the first structure in District 25 to be required to comply with this new ‘interpretation’ for parking. This is a huge win for the beach.’”

As the Brief goes on to say, there is no direct evidence that the USFWS acquiesced to lobbyists and actively delayed the application process. All we know is that it was “very close…hopefully later this week” on October 2, and then suddenly, conveniently, the process was delayed, just long enough to get past the pivotal date of October 15.

It was at this point that Breezy Shores began taking legal action, arguing that they had a vested right in the original land use certificate and that revoking it constituted a taking for which they deserved compensation. The district court ruled in their favor, awarding them $764,000 just compensation and ordering the county to let the original development plans proceed.

What the appeals court decides remains to be seen.

The NIMBY Mindset

This story is a classic example of NIMBYism, a phenomenon that derives its name from the phrase “Not In My Back Yard.” A “NIMBY” is someone who opposes new developments in their locality, usually because the developments would hurt their interests in some way. More dense housing, for example, could increase traffic in the area. A new homeless shelter might attract the wrong kind of people. An industrial development could cause negative externalities such as noise and light pollution. “Don’t put that development there,” they like to say. “Put it in someone else’s backyard.”

While some of these concerns are justified, NIMBYs have a reputation for going far beyond reason, inserting themselves into the minutiae of new developments simply because they want to “preserve the character of their community” or protect their financial interests. The “mega structures” comment in this story is a perfect example of the former. Paul Stanton’s selfishly motivated meddling exemplifies the latter.

Weaponizing the law against developers for these kinds of reasons is simply ridiculous. It would be quite presumptuous to impose our personal preferences on our neighbor’s garden, or to impose our personal house rules in their house. But how is it any less presumptuous to impose our personal preferences on their building plans? It’s their land! They have a right to develop it as they see fit, and the fact that they might do something with it that you don’t like doesn’t entitle you to coerce them into abiding by your vision for their property.

Now, the one reasonable exception to this is when the development would cause physical interference with someone else’s property. But the key here is “physical” interference. Mere claims of “harm” are not enough. The economist and political theorist Murray Rothbard emphasizes this distinction in his famous essay Law, Property Rights, and Air Pollution.

“Legal and political theory has committed much mischief by failing to pinpoint physical invasion as the only human action that should be illegal and that justifies the use of physical violence to combat it. The vague concept of ‘harm’ is substituted for the precise one of physical violence.”

Community members may very well experience disutility by the presence of mega structures, and Stanton may suffer financial loss because of Breezy Shores. But neither of these justify restricting Bordelon’s use of his property. They are not property rights violations, and thus should not be legally actionable. Pollution, on the other hand, would be legally actionable in Rothbard’s framework, because it constitutes a physical invasion of the property of others. In short, legal force is only justified in response to force. If people want to influence how a property is developed beyond that, they are welcome to do so through non-coercive means.

Who Are You in This Story?

If we’re honest with ourselves, we all have a bit of Paul Stanton in us. We all want to protect our own interests, and we’re willing to do that even when it means minding someone else’s business. But this is a temptation we ought to resist. If we want to live in a healthy society, we shouldn’t go around imposing our values and priorities on our neighbors with the force of the law. We need to accept that people won’t always live the way we’d like them to. We need to be ok with the fact that their plans for their land might radically diverge from what we would prefer.

So instead of being the Paul Stanton in our community, let’s try to be Mike Bordelon, the entrepreneur who had a vision, took a risk, and did everything he could to create value out of a vacant lot. Let’s be builders, not busybodies. Creators, not complainers.

The world could really use more makers and fewer meddlers.

This article was adapted from an issue of the FEE Daily email newsletter. Click here to sign up and get free-market news and analysis like this in your inbox every weekday.


  • Patrick Carroll is the Managing Editor at the Foundation for Economic Education.