Gulf Shores Beach Access for Lagoon Front Condos

City may seek judicial guidance, but that could jeopardize residential zoning

Published By Mobile Press Register
Tuesday, April 17, 2007
By RYAN DEZEMBERStaff Reporter

GULF SHORES -- City leaders said they may seek a court ruling to determine the extent to which condominiums on the north side of Alabama 182 can use surfside lots along West Beach Boulevard as Gulf access for their owners and guests.
But in doing so, Mayor G.W. "Billy" Duke III and City Attorney David Whetstone said the south side of the beach highway, which has traditionally been zoned for single-family homes, could lose that designation. The reason, they said, is because many of those beach houses are vacation rental properties that are more commercial than residential.
The option of seeking a judicial opinion on the matter was discussed Friday as part of a work session involving members of the City Council and Planning Commission as well as several West Beach property owners. Spurring the meeting was an opinion Whetstone recently authored that clears the way for three high-rise developments that have recently been erected on the north side of Alabama 182 to use property on the south side of the highway for beach access.

The City Council approved an ordinance last year that restricts the practice, forcing condo developers to seek a "conditional use permit" before using residential property for beach access, Whetstone said. But the former district attorney said that the three condominiums -- Bel Sole, Lagoon Tower and Mustique -- were already far enough along in their planning or construction when the law was passed to be exempted.
"You can't change the rules after they've spent money, a lot of money," Whetstone said. He added that although the developers' beach access plans may not have been part of the designs the council approved, he has seen evidence that the developers had contracts to buy -- or already owned -- Gulf-front property and had advertised Gulf access when they sold condos.
"You can't call (a developer) and say, 'erase all those promises you made for beach access,'" Whetstone said.
Some West Beach homeowners were not pleased with Whetstone's decision.
Bill Porter, president of the West Beach Property Owners Association, said that the developers of those three condos "should have known the legal use of the southside lots."
Michael Reilly, who lives near Atlanta and owns a home on West Beach, said Gulf Shores, through its zoning ordinance, promised home buyers that stretch of Gulf-front -- essentially from Little Lagoon pass to the Laguna Key subdivision -- would be zoned for single-family residences.
"If you're now changing it due to the inability to define what a single-family residence is, you're ripping out the fabric about what zoning's all about." Reilly said. "We bought because we thought we were going to have a residential area on the beach, period."
Greg Kennedy, a builder and former council member, said that while he has frequently dealt with vacationers staying on the north side using his property to get to the Gulf, he thought it might be better if
multi-family developments have designated places to access the beach.
Duke said that was a consideration of council members when they passed the ordinance restricting access. Out-of-towners don't know the local rules, he said, and it may be easiest to funnel them into specific, development-owned lots.
"One of the things we struggled with is do we require a condominium owner to buy a lot on the other side ... so that they know where they've got to go instead of just going haphazardly up and down the beach," the mayor said.
Whetstone and Community Development Director Steve Foote said there are no rules dictating how the conditional use permits will be awarded. Whetstone said city officials will likely require condos to acquire a full lot as opposed to a narrow easement between houses and would probably want access to the parcel to be restricted to that development's owners and guests.
Duke said that he would like to form a committee including some elected officials and some West Beach homeowners to develop guidelines for such permits.
No matter how the rules turn out, city officials may have trouble enforcing them, former Mayor David Bodenhamer said.
Say a group of condominium owners, be it five or 50, buys a Gulf-front lot together, leaves it undeveloped and uses it as place to get to the beach, Bodenhamer said. What, the former mayor asked, would prevent them from visiting their property?
"I think the city should be commended for doing what they're doing and it is certainly in good faith that they are trying to prevent condominium developments from going across the street in residential zoned lots and building swimming pools and parking lots and things that do make it more nonresidential from a use factor," Bodenhamer said. "But this use issue and property rights, I think the city is treading on very, very sensitive ground unless they get a definitive declaration from the courts as to what they can or cannot do."

Duke said Gulf Shores may seek judicial guidance, but warned that changes could be in the offing because the city would not be able to treat residentially zoned areas on West Beach and inland neighborhoods differently. The courts could find that West Beach is actually a commercial district because many addresses there are registered with the city as licensed businesses, Whetstone said.
The city attorney mentioned a recent case in Baldwin County Circuit Court in which Presiding Judge James Reid invalidated 1950s-era covenants that restricted a strip of Gulf-front in Orange Beach to residential construction because so much commercial activity was going on in the area to render the prohibitions moot.
That ruling, involving the second phase of Larry Wireman's Turquoise Place development, has been challenged and is currently before the Alabama Court of Civil Appeals, court records show.

Mustique is one of three West Beach condominium projects that will be permitted to use property on the south side of Alabama 182 for beach access because they were under construction or planned prior to the City Council banning such use of Gulf-front residential lots.
Lagoon Tower, right, and Bel Sole condo owners will be able to use Gulf-front property for beach access despite a city ordinance restricting such in the residentially zoned West Beach area. City Attorney David Whetstone said the projects, along with another called Mustique, were far enough along in planning or construction to be exempt from the new rule.