Saturday, January 20, 2018

Superior Court Judge Refuses To Force Oconee County To Issue Permit For Storage Facility On U.S. 441

***Case Can Be Reopened***

Oconee County Superior Court Judge H. Patrick Haggard has turned down a request by Broome Street LLC that Oconee County be forced to issue the company a development permit for construction of mini-warehouses on just more than 12 acres on U.S. 441 behind the Stone Store.

Judge Haggard denied the petition “without prejudice” on narrow grounds, and the case can be reopened for any reason.

The county has imposed a three-year moratorium on development of the property because of a violation of the county Unified Development Code regarding timbering of property that was to be used for development.

Broome Street contended that the action violated the “Takings Clause” of the Fifth Amendment to the U.S. Constitution, which has been interpreted to mean that governments must compensate owners when regulation takes away value from the property.

Judge Haggard said that Broome Street should raise its concerns about unconstitutional taking of property in a civil suit for damages rather than through the requested writ of mandamus, which asked the court to force the county to issue a permit.

Ruling Issued

Broome Street LLC filed suit against the county on July 21 of last year after the Oconee County Board of Commissioners on July 11 turned down Broome Street’s appeal of the Planning and Code Enforcement Department denial of a permit for the mini-warehouses.

Broome Street LLC has its legal address at 1251 Overlook Ridge Road, south of Hog Mountain Road in the west of the county.

The principal of Broome Street LLC is Tyler McClure, who also owns All About Pinestraw, 54 Greensboro Highway, Watkinsville. The storage facility was to be called Rhino Storage.

Judge Haggard held a hearing on the request for the writ of mandamus on Aug. 31 and allowed the filing of additional materials.

He issued his ruling on Nov. 8, but that ruling wasn’t filed in Oconee County Clerk of Superior Court Office until Nov. 22

Timeline Of Case

In his Findings of Fact, Judge Haggard set out the following timeline.

Storage Facility Proposed For Behind Stone Store

Broome Street LLC purchased the 12.36-acre tract of land on October of 2016 for the purposes of constructing mini-warehouses on the site.

Broome Street LLC hired Jason Lawson of Baseline Surveying and Engineering, 1800 Hog Mountain Road, east of Butler’s Crossing, to perform a survey and develop plans for the warehouses.

Lawson determined that the site contained hardwood trees that he considered worthy of harvesting.

Broome Street LLC hired Strother Timber Company to harvest timber from approximately 4 acres from the 12.36-acre tract, and on Feb. 8, Strother began cutting trees on the property, according to the court findings.

Complaints From Neighbors

Two neighbors, Ken Colley, 1160 Chaddwyck Drive, and Bill Hale, 1140 Chaddwyck Drive, appeared on the site as the harvesting was being conducted and complained to the county.

The county then contacted Lawson of Baseline Surveying and Engineering, representing Broome Street LLC, and asked that the timbering stop.

Broome Street owner McClure agreed to stop the harvest, and no cutting of trees has occurred since Feb. 8.

The county’s Development Review Committee approved the preliminary plat and site plans for the warehouse project on March 17.

On March 28, the county told Lawson that the county intended to enforce a three-year moratorium on development of the site pursuant to a section of the county’s Unified Development Code.

BOC Appeal

Lawson of Baseline Surveying filed an appeal of the March 28 decision on April 4.

The Soil and Water Conservation District subsequently approved the preliminary plat and site plans on June 16, 2017.

The Board of Commissioners turned down Lawson’s appeal on July 11 saying Broome Street LLC did not qualify for a waiver of the moratorium because it did not meet all the criteria set out in the UDC for granting of a waiver.

In the suite filed on July 21, Broome Street LLC asked the court to declare the section of the UDC being applied as in violation the Georgia Constitution and the Fifth Amendment and Fourteenth Amendment of the U.S. Constitution.

Broome street asked for $10,000 for loss of the timber, attorney fees, and a writ of mandamus forcing the county to issue the permit for development of the storage facility.

Nature of Denial

The county denied the permit on the basis of Section 340 of the Unified Development Code dealing with Timbering and Forestry, which sets out five conditions for tree harvesting to qualify as an agricultural activity.

The first of those conditions is that the Oconee County Tax Commissioner has approved the property for a preferential agricultural assessment or a conservation use assessment.

Haggard ruled that “It is undisputed that Petitioner meets only four of the five requirements, having acknowledged in a hearing for the Oconee County Board of Commissioners and in its Petitions that the Subject Property is not approved for preferential agricultural assessment or conservation use assessment.”

The UDC specifies that if a landowner conducts timbering activities on any portion of his or her property without an approved preliminary plat the owner may not obtain approval of a development plan for three years.

The county imposed that three-year moratorium on Broome Street with the stipulation that the Board of Commissioners had the right to waive it.

The BOC could waive the moratorium if the tree removal was a bona fide agricultural activity and a minimum basal area of at least 50 square feet per acre, distributed evenly throughout the property was retained and certified by a qualified arborist or forester.

Basal area is used to describe the average amount of an area occupied by tree stems.

The BOC decided that Broome Street did not qualify for the waiver.

Briarwood Baptist Church

In April of 2017, as the Broome Street case was unfolding, the county also informed Briarwood Baptist Church, at the corner of Hog Mountain Road and Robinhood Road, that it was in violation of the UDC because of the clearing of land adjoining the church property without a proper permit.

The county told the church that it must wait three years to move forward with its expansion plans.

The Oconee County Board of Commissioners on Sept. 5 approved the appeal by Briarwood Baptist Church of the construction moratorium imposed by the county, allowing the church to go forward with expansion plans at its Hog Mountain Road location.

The hearing of the appeal for Briarwood Baptist Church brought out a large crowd, overflowing the Commission Chamber in the Courthouse in Watkinsville. The crowd applauded and filed out of the room after the unanimous vote of the Commission.

Broome Street amended its petition for a writ of mandamus on Sept. 14, stating that the county did not have a statement in the Briarwood case from a licensed forester stating that a minimal basal area of at least 50 square feet per acre was retained after the harvesting.

“The county has arbitrarily and capriciously discriminated against Petition and in favor of the Church,” the amended petition stated.

Conclusions of Law

Judge Haggard ruled that Broome Street was not challenging the decision by the county to deny the waiver, but rather was arguing that the section of the UDC being applied is unconstitutional.

He stated that Broome Street “may not raise its Constitutional challenges via a petition for a writ of mandamus.”

Haggard also found that the claim of unconstitutional taking should be raised in a civil suit for damages.

Haggard concluded that a violation of the due process and equal protection clauses should be raised in a suit for declaratory and injunctive relief.

As a result, he said the Court should not order the county to issue a development permit at this time.

Storage Facility

Broome Street’s plans for its six-building storage facility are on hold.

The 12-acre parcel of land on which the facility was to be built is tucked behind the Stone Store on U.S. 441 at the intersection with Hog Mountain Road.

The parcel is accessible via an easement on the property housing the operations center of Oconee State Bank, 7920 Macon Highway (U.S. 441).

The storage facility was to be across a creek from homes on Chaddwyck Drive, off of Lavista Road.

On Nov. 30, 2017, the county sent Broome Street LLC a notice of violation of a UDC rule for storing portable toilets on the property without approval of a site plan.


Xardox said...

"...nor be deprived of life, liberty, or property, without due process of law;..."
The article said the decision was "without prejudice" and "based on narrow grounds."
I have been told that appealing to the Fifth Amendment is the last desperate act of developers to challenge local authority concerning land disputes.
It's called a republic for a reason.
The statues say what they say.

Lee Becker said...

The decision was based on the request for a writ of mandamus. The judge ruled that was the wrong request. For that reason, I said the decision was based on narrow grounds. He did not rule on the broader issues you are raising.