August 23, 2016

Honorable Robert Craft, Mayor

Honorable Carolyn Doughty, Mayor Pro Tempore

Honorable Joe Garris, Councilman Honorable Philip Harris, Councilman Honorable Jason Dyke, Councilman Honorable Steve Jones, Councilman

220 Clubhouse Drive

Gulf Shores, Alabama 36542

Dear Lady and Gentlemen:

My law firm and I have been retained to represent Mssrs. Dean and Johnathan Young relating to the enforcement and application of multiple ordinances of the City of Gulf Shores relative to the Deans's (Editor’s note: Youngs’?) properties and businesses. Specifically, I write to you regarding the city's adoption, application, and enforcement of its October 26, 2015, amendment to section 6-13 (hereinafter referred to as "Ordinance #I" and its March 18, 2016, amendment to section 4-8 (hereinafter referred to as "Ordinance #2) of the city's Code of Ordinances. Each ordinance purports to draw the authority for its adoption from state law, to wit, including, among others, sections 11-40-1 et seq., 11-45-1 et seq., and 11-47-250 et seq. of the Code of Alabama.

I am aware that the City sought and Mr. Dean Young granted an "Easement for Placement, Construction, Maintenance, and Use of Sand and Associated Sand Stabilization Structures, Vegetation, Vegetation Irrigation Systems, and Access Structures" on September 21, 2004. Concurrent with seeking these easements, the City distributed a "FAQ SHEET: ORANGE BEACH NOURISHMENT PROJECT." This document explicitly states in bold typeface that "For all practical purposes, nothing will change in regards to your and others' 'rights' along the beach." Consistent with this document's explanations (and as would be expected in exchange for consideration of only one dollar), the scope of this easement granted the City limited powers and access to Mr. Young's otherwise private property.

It is well-settled law that the rights conveyed by easements are restricted to those specifically enumerated in the easement document itself. The law is further clear that, in interpreting the language of an easement, if the language is clear, then it is limited to its express terms. If the language is not clear, then it must be construed against the drafter and in favor of the non-drafting party. Regardless, the intent and understanding of the parties at the time the easement was executed must be given great weight.

For eleven years, there was no dispute about the breadth if the easement's application. During that time, the City respected the rights of private property owners. However, since the adoption of Ordinance #1 last year, it appears that the City is determined to disrespect the rights of its beachfront property owners. Far from the limited and restricted purposes set forth in the easement, the City has now over-reached and enacted ordinance that, in their enforcement, are decidedly changing the rights of property owners on their own property. This was not anticipated when the easement was executed and, in fact, finds no basis for its adoption in the language of the easement. Instead, the easement that was designed to preserve and protect Alabama's gulf coast beaches has become a weapon that is being unfairly and unconstitutionally deployed against the ownership rights of those who own beachfront property.

There are a number of reasons that we believe the City's implementation of these ordinances violates the rights of property owners in Gulf Shores. In the interests of time and space, I will briefly mention of some of them below:

As you know, municipalities are creatures of statute with limited powers. In fact, they may only exercise those powers expressly given to them by the Legislature. The Alabama Supreme Court has put it this way: "Municipal corporations can exercise those powers only which are granted in express words, or fairly implied as incident to those expressly granted, and those essential to the declared objects and purposes of the corporation, and not those which are simply convenient but not indispensable." (Ex Parte Birmingham 201 Ala. 641 (1918)). The City has pointed to no express grant of authority from the Legislature that has empowered it to take these draconian and hostile measures against private property. In fact, it is doubtful that the Legislature could authorize such actions even if it tried. Accordingly, Ordinance #I and Ordinance #2, at least as now being applied, appear to be a vast overreaches of municipal authority.

The City's recent aggressive removal of private property that remains on private landowners' property overnight constitutes an unlawful taking of that property. Certainly, these actions interfere with the rights of these property owners to use and enjoy their property in the same way that other landowners are allowed to do so.

I further understand that Ordinance #I is being applied differently to single family dwellings than it is being applied to condominiums. The City fails to set forth any rational basis for such a distinction. It further fails to even attempt to make a showing that its purposes could not be accomplished through a less restrictive means. In fact, if anything, the purported reasoning put forward to justify Ordinance #I's promulgation actually shows a greater need for it to apply to condominiums than single family housing. The application of Ordinance #I as presently being enforced is further problematic as it constitutes a taking of property that is constitutionally prohibited.

Without debating whether Ordinance #2 represents a legitimate exercise of the City's police powers on public property, its extension to private property overreaches and creates problematic constitutional issues with its enforcement on private property.

It is unclear whether the Director of the Lands Division with the Alabama Department of Conservation and Natural Resources has approved these attempted new exercises of the City's powers. Although it is not clear that even he possesses the authority to authorize many of these actions, his concurrence, to the extent he can give it, would appear to be necessary.

In short, the city's new enforcement techniques are a confiscatory departure from the plain language of the easement, the public explanations provided at the time the easements were executed and that were used to induce their execution, and over a decade of enforcement since the easements were first executed. We demand that Gulf Shores immediately cease and desist from interfering with the private property rights of its beachfront landowners.

If you would like to discuss these matters further, we stand ready to do so at your convenience. Please do not hesitate to contact me.

Sincerely,

Troy King

cc: Mr. Dean Young

Mr. Jonathan Young