Thursday, March 09, 2017

Owners Of Westland And Parkside Subdivisions File Suit Against Oconee County Over Sewer Capacity Fee Refund

Superior Court

The owners of the long-dormant Westland and Parkside subdivisions have filed suit against Oconee County, seeking to block the decision by the Board of Commissioners to refund sewer capacity fees for the massive master plan developments.

In three separate lawsuits filed in Oconee County Superior Court, the owners contend, among other things, that the Board of Commissioners violated state zoning laws when it voted on Jan. 31 to refund sewer capacity fees paid by the developers of Westland and Parkside as well as by two other residential project developers.

The effect of that Jan. 31 decision was to render the master plan development zoning held by Westland and Parkside meaningless, since the projects depend on sewer capacity, and the county took its action without proper hearings on what amounted to a zoning decision, the suits contend.

The decision by the Board of Commissioners on Jan. 31 was part of a plan to reduce the demands on the county’s two small sewage treatment facilities.

If the Parkside and Westland land owners are successful in getting the court to block that decision, it could force the county to move more quickly on expansion of its Calls Creek treatment plant and to upgrade its Rocky Branch Land Application Site.

Suit Filed March 1

Atlanta attorney Henry Parkman filed two separate suits against the county and all five commissioners on March 1.

Parkside Entrance Off Hog Mountain Road 12/17/2016

One of the suits was on behalf of REO Funding Solutions III LLC and the other was on behalf of Westland-TLG LLC.

According to the suits, REO Funding Solutions owns 47 single family lots in the subdivision, while Westland-TLG owns the remaining 429 acres.

The county approved the 443-acre residential and commercial master plan development on U.S. 78 near the Apalachee River in 2003.

The project was to have 430 residential lots as well as acreage for commercial development and a condominium office park.

REO Funding Solutions and Westland-TLG LLC acquired the property in a series of steps going back to the original land owners, according to the suits.

Action Sought For Westland

The two suits filed by Parkman on behalf of Westland make parallel claims and seek similar actions by the court.

The suits ask the court to declare the action of the Board on Jan. 31 as “unenforceable” and “unconstitutional.”

The suits ask the court to rule that the Board had no right to act unilaterally and that the property owners are entitled to damages resulting from the “breach of contract” represented by the county action.

The suits argue that the Jan. 31 vote of the Board “effectively changed the text” of the 2003 ordinance that rezoned the property for the Westland master plan development “making impossible the development of the Westland subdivision” as approved in that ordinance.

The Board did not provide notice and a hearing on the proposed “zoning decision” as required by law, the suits contend.

Suit Filed March 2

Atlanta attorney William J. Sheppard filed suit against the county and each of the five commissioners on March 2 on behalf of Parkside Development Properties LLC, current owner of Parkside.

The Oconee County Board of Commissioners approved the rezone for Parkside in 2004.

The development wraps around Northwest Woods, with entrances on Mars Hill Road and Hog Mountain Road. The Hog Mountain Road part of the project abuts Oconee Veterans Park.

The 469-acre master plan development includes 810 residential lots as well as commercial components.

Parkside Properties acquired the property in several steps from Plant-A-Seed LLC, the original developer, according to the suit.

Mark Jennings, 2300 Peter Dickens Road, Bogart, is the registered agent of Parkside Properties.

Action Sought For Parkside

In the Parkside suit, Sheppard ask the court to void the Jan. 31 vote by the Board of Commissioners.

The suit also asks the court to declare the county ordinance allowing for the revocation of capacity fees as “void and unenforceable.”

The suit asks the court to either disallow the action taken by the Board or require the county to “provide just and adequate compensation to Parkside for the value of the property taken.”

According to the suit, the county violated Georgia zoning laws by “making the development of the Parkside project impossible under current zoning.”

Jan. 31 Vote

At its meeting on Jan. 31, at the suggestion of Commission Chair John Daniell, the Board voted unanimously to refund sewer capacity for four undeveloped residential projects in the county to reduce the demand for sewer services.

The item appeared on the agenda without any hint of the significance of the action to be taken.

The agenda listed: “Discuss and Consider Wastewater Sewer Capacity Fee Policy.”

Following a presentation by Utility Department Director Wayne Haynie about the existing policy, Daniell made the recommendation that the capacity fees be refunded.

As part of the vote, the Board instructed Haynie to refund $2.7 million in capacity fees to the developers of those four projects to free up 280,800 gallons of sewer capacity.

Four Projects

In addition to Parkside and Westland, the Board voted to refund capacity to Willow Creek, also a master plan development located on Hog Mountain Road.

Willow Creek paid for sewer for 124 lots, according to county records, and had connected four lots. It also had transferred its right to 20 lots. So the county proposed to refund payment for the remaining 100 lots.

The Board voted to refund payment for 10 lots in Wisteria Ridge, an apartment project inside the city of Watkinsville, off North Main Street near Calls Creek.

Wisteria Ridge paid for only 10 lots, according to Daniell. Watkinsville officials say the proposal for Wisteria Ridge is inactive and has been withdrawn.

At the Feb. 7 Board of Commissioners meeting, Judd Shiver, representing Willow Creek, said the subdivision is active and should not have been on the list.

Daniell stated that Administrative Officer Jeff Benko would meet with Shiver to discuss the issue.

Judges Assigned

The suit by REO Funding Solutions has been assigned to Superior Court Judge Eric Wayne Norris.

The Westland-TLG suit is before Superior Court Judge H. Patrick Haggard.

The Parkside Development Properties suit was assigned to Judge Lawton Stephens.

It is possible to view the three suits via a court docket search on the Oconee County web site.

Username should be “public,” and the password should be “public.”

The search requires a series of steps, and Oconee County should be listed as a Party.


Anonymous said...

The sewer by back is all about controlling res growth. The commissioners don't want the houses to be built. The capacity is there and Daniel is holding it out for commercial.
To try and go back and "down zone" after the fact is going to cost the county a lot of $ defending lawsuits.

barb carroll said...

developers should not be able to hold sewage capacity in perpetuity or resell it to other developers. 2017-2003 is 14 years in which these project lay dormant while being sold and resold to others with simultaneous selling off county sewage allocations at a premium (third party transactions of sewage capacity).

moreover, the consensus of everyone of late is that these developments should never have been approved as they tax the county in terms of services (e.g., sewage, schools) dramatically more than any they will contribute. furthermore, they will be a blight on the county. citizens have always questioned these approvals and government corruptions in these matters has always been at the forefront of such discussions.

we have an ordinance in place that limits such activity by developers. the boc finally manned up and acted on it.

Anonymous said...

When I tried to navigate the court docket site, I kept getting the following message: "TIFF Server could not process the request. Please review the Installation Test Page."

Maybe it's because I'm using a Mac?

Regardless, it's important to say that a simple trip to the Courthouse does just as well to view the documents. If you want to print, you have to ask a clerk, as the only printers are in the clerk offices. I believe they charge about 10 cents a page.

Anonymous said...

Barb- "consensus of everyone" How about speak for yourself instead of speaking for "everyone". Residential growth in Oconee has been the backbone of the county for quite a few years. The larger question remains...where was "everyone" when these developments were approved?

Zippity said...

I agree with you Barb and some of us did object to these developments at the time. Housing projects such as this do not return enough in taxes to pay for services. Research on this issue always comes to this conclusion. I've lived here for over 40 years and taxes were much lower when there were only cows around. I support the BOC, but the courts will decide whether this was done correctly or not.

Anonymous said...

Backbone for residential growth in most part due to schools. So when BOE raises caution flag, we need to listen. But remember the refund is based on sewer system issues. It had nothing to do with zoning or number of lots.

Lee Becker said...

Anonymous 10:13 a.m.

It is the contention of the three suits that the decision by the Board was a zoning decision because it made it impossible for the owners to develop their land as zoned. The MPDs as approved by the BOC called for smaller lots than can be handled by septics, necessitating the sewer service. So, by withdrawing the sewer service, the suits claim, the County reversed its own decision to allow these MPDs.

How that argument will play out in court only time will tell.


Anonymous said...

This decision by John Daniel is going to cost all of us a lot of money. I do not agree with the developments but they were already passed by the BOC. I am upset that John Daniel would rather get in a lawsuit rather then negotiating a way to solve everyones problems. #ONETERMDANIELS