A Huntsville developer is seeking dismissal of a lawsuit by a couple who cannot build a home on land they agreed to purchase because the developer violated the city’s tree cutting regulations.

The couple, Beire and Shayna Castro, are not able to build a home in the Estates at Wade Point subdivision on Green Mountain because the city put building permits on hold after Diltina Development Corporation had been found in violation of Huntsville’s slope district regulations.

The Castros agreed to purchase the property at 15111 Wade Point for $250,0000.

They filed their lawsuit after Diltina Development representative Alex Maxwell admitted during the March 18 meeting of the Board of Zoning Adjustments that Diltina knowingly allowed trees to be cut down on Green Mountain in violation of city regulations to give the planned subdivision a better view.

Diltina had been required to appear before the board with remediation plans to remedy the violations. The board rejected the developer’s proposals for the Estates at Wade Point and Sunset on Green Mountain, where similar violations occurred. Diltina has since appealed BOZA’s rejections to Madison County circuit court.

In seeking dismissal of the Castros’ suit earlier this month, Diltina and Green Mountain Realty maintain that the couple was aware of delays when they agreed to purchase the property. They maintain the Castros fail to make viable claims of fraud in the inducement of reckless misrepresentation.

They also maintain the Castros fail to make a viable claim of breach of contract.

The Castros, however, filed an amended complaint on Wednesday, stating the case arises from the defendants’ “intentional and illegal violations of zoning law for financial gain. Specifically, as described below, Diltina Development knowingly and intentionally felled hundreds of mature trees in a Slope Development District, blatantly and intentionally violating the law to boost lot prices and sales by creating a ‘bluff view’ for the affected lots.”

The Castros maintain Diltina and Green Mountain Realty worked together to deceive lot buyers by misrepresenting, omitting and suppressing material facts to induce individuals to purchase the lots, while endangering their safety by destabilizing the slopes on these mountain properties.

“As a result of the Defendants’ actions, these lot buyers are now unable to construct homes on the lots they purchased from the Defendants due to the zoning violations,” the Castros amended complaint states.

According to the lawsuit, after they were under contract, the Castros were approached by owners of neighboring lots informing them there was a zoning issue with the land they were purchasing which prevented the others from obtaining certificates of occupancy, according to the suit.

The lawsuit alleges the Castros were later reassured by their real estate agent that “the tree matter” was not a big issue, that Diltina would get a variance from the city and the matter would be resolved quickly.

Before closing, the lawsuit stated that the Castros gave the Diltina affiliated builder a $75,000 check, a $10,000 earnest check to Green Mountain Realty for construction, and another $5,000 check to Diltina for earnest money for the land. The lawsuit said the Castros paid almost $58,000 after closing and had been paying about $1,100 a month since then in loan payments.

The lawsuit said the Castros applied for a building permit in February but were denied with the property in the slope development district being deemed destabilized and potentially unsafe for building due to the tree removal. The lawsuit also said the Castros have paid about $30,000 for building materials such as windows “for a home they are now unable to build.”

They are seeking a full refund, a return of the commission paid on the purchase price, commission paid on the build price and compensation for damages.

The lawsuit cites minutes from the March BOZA meeting. Beire spoke at the March meeting, telling the board he felt he was being penalized financially for something he did not do.