FAIRHOPE, Ala. - Should they lose at trial in their efforts to block construction of a public landing where Nichols Street dead ends at Mobile Bay, the plaintiffs will appeal the case, their attorney said this week.

“We’re going to do some discovery and gain a few more facts and hopefully convince Judge Wilters at the final hearing that we’re entitled to a permanent injunction,” Bay Minette attorney Daniel Blackburn said Wednesday. “If we’re not successful at the final hearing, my clients have already told me they want me to appeal this case because we think we’re right.”

Blackburn represents Gardiner Green and Thomas Millette, whose residences are located on Mobile Bay on each side of where Nichols Street dead ends, and where the public landing was scheduled for construction when they filed their lawsuit this summer.

The lumber for the landing – which will consist of two decks and a staircase between a grassy area and the beach, according to city staff – has been stacked there and cordoned off since County Circuit Judge Robert Wilters entered a temporary restraining order blocking further construction after the lawsuit was filed.

A hearing was held Aug. 11 on plaintiffs’ motion for a preliminary injunction which would have blocked construction until a trial on the merits of the case. The judge denied that motion on Sept. 16 and vacated the temporary restraining order at that time.

The city could move forward with the public landing, now that the TRO has been lifted, but it is more likely that construction will wait until a trial has been held, according to city staff.

A final hearing has been set for Oct. 18 but that date could change, according to Blackburn, who said he had an agreement with City Attorney Marion “Tut” Wynne to ask the court to set the case for trial in mid-November.

“That would give me a chance to do some written discovery with the city and maybe take a deposition or two,” Blackburn said.

Although not well known as a public park, the grassy area between White and Nichols streets facing Mobile Bay in front of private residences is a public park, according to the city. It is identified to some degree by signage and a public pier at White Street but few people ever use the area between White and Nichols streets as a park, according to nearby residents.

“Fairhope intends to build a deck … on the beach area below the bluff for the use of the general public,” states the city’s response to the plaintiffs’ effort to permanently block the construction. “Citizens have expressed a desire to have a safe place to view the bay, watch sunsets and have access to the public beach area.”

The plaintiffs contend the construction would occur illegally within the right of way of Nichols Street.

The city “has no authority to construct an observation deck or other construction within the right-of-way,” states the plaintiffs’ July 6 complaint filed in Baldwin County Circuit Court.