Monday, April 12, 2021

Attorney For Owner Of Land For Proposed Shopping Center At Oconee Connector Criticizes Oconee County Planning Staff

***Tells Commissioners Client Has Right To Connector Access***

Attorney William Berryman wants Oconee County commissioners to reject three elements of the county’s planning staff report on a rezone request by his client for a shopping center at the Oconee Connector and Mars Hill Road.

The planning staff is wrong is saying that three parcels owned by Maxie Price’s Deferred Tax can be developed under the current zoning classification, Berryman said in a March 2 letter to the commissioners.

As a result, if the commissioners deny the rezone request it will be a denial of applicant Maxie Price’s constitutional rights to develop his property as protected by the U.S. Constitution, Berryman said.

Price has a right to an access cut and a full interchange on the Oconee Connector with a median break because of past commitments by the county, Berryman said, so the staff recommendation that the access be restricted to a right-in, right out traffic is unacceptable, he wrote.

Finally, the staff recommendation that Price be required to construct two roundabouts on Mars Hill Road is a violation of state law and imposes undue financial obligations on Price, Berryman said.

Berryman wants the Commission to approve the five entrances to the proposed shopping center off Mars Hill Road as submitted rather than the three--two with a roundabout--recommended by the planning staff.

Price’s request for the rezone for just less than 47 acres at the corner of Mars Hill Road and the Oconee Connector for a shopping center that would include a Publix is scheduled to be before the Oconee County Planning Commission on April 19 and the Board of Commissioners on May 4.

The Planning Commission in January voted 8 to 0 to recommend to the Board of Commissioners that the rezone be denied, but the Commissioners have sent the request back to the Planning Commission for reconsideration of the request.

The Planning Commission has one replacement member since that 8 to 0 vote.

Details Of Letter

Berryman, with Fortson, Bentley, and Griffin law firm in Athens, marked his eight-page letter dated March 2 as “hand delivered." It contained another 112 pages of supporting documents.

Aerial View With Labels

The Board of Commissioners on Feb. 23 had granted Price’s second request for a postponement of a decision by the Board of Commissioner on the rezone request following the negative vote of the Planning Commission in January.

That January 19 meeting of the Planning Commission had been delayed from its original date of Dec. 14 at Price’s request.

Berryman said the purpose of his March 2 letter was to provide the commissioners with “(i) a brief history of the Property, (ii) to address issues that have been raised in the staff report and by some in the community, and (iii) to request that the Board approve Applicant's petition subject to conditions described in this letter.”

Berryman wrote in the letter that he accepted all but two of the 20 conditions recommended by the staff for the rezone.

Those two conditions dealt with the entrances to the shopping center off the Oconee Connector and Mars Hill Road.

The staff had recommended approval of the rezone request with the 20 conditions.

Disputes Staff Conclusion

The three parcels that are proposed for the shopping center currently are zoned B2- (Highway Business District), B-1 (General Business District), and R-1 (Single-Family Residential).

Deferred Tax is asking the county to combine the properties into a single tract to be zoned B-2 (Highway Business District) for development of a shopping center with a grocery store as the main tenant and for retail, restaurant, and hotel uses.

Sembler Corporation of Florida would be the developer of the proposed shopping center with Publix as the grocery store operator.

Berryman in his March 2 letter told the commissioners that the county’s planning staff was in error when it wrote in the staff report that “The property has a reasonable economic use for single-family residential and commercial purposes as currently zoned.”

Denial of Rights

“The three parcels that are included in the Application cannot be used as zoned, and the existing zoning classifications cause Applicant significant economic detriment,” Berryman wrote.

Three Tax Parcels For Shopping Center

The existing B-1 tract fronting on the Oconee Connector and Mars Hill Road “cannot be developed as zoned due to the significant changes to the original tract caused by right-of-way acquisitions, Berryman wrote.

The tract currently zoned B-2, at the corner of the Oconee Connector and Mars Hill Road, “cannot be developed as a stand-alone parcel due to its size and topography constraints,” Berryman wrote.

The parcel currently zoned R-1 is not usable as zoned, Berryman wrote, because “This kind of development is no longer feasible given the uses for the adjoining property and the county's land use policy for this area.”

“Designing a subdivision that meets current (county) requirements will be difficult, if not impossible,” Berryman continued.

“Failure to approve the Application with the within-described conditions will be a denial of Applicant's rights under the United States and Georgia Constitutions,” the letter continues.

Oconee Connector Entrance

At present, neither of the two parcels with frontage on the Oconee Connector has access to the Connector.

The concept plan submitted with the rezone application calls for a cut into the property off the Connector about halfway between the Mars Hill Road/Daniells Bridge Road intersection with the Connector and the Connector’s intersection with SR 316.

The planning staff said that access should allow only for right-in and right-out turns, rather than the signalized, full intersection proposed in the concept plan.

“Applicant objects to this Condition on the ground that Applicant and the prior owners of the Property have acquired a vested right of access to the existing median break and to a commercial driveway adjacent to the median break which has been in effect for more than 24 years,” Barryman wrote.

That vested interest, Berryman wrote, is the result of negotiations between the county and the previous owner of the property in 1997 when plans were made to build what is now the Oconee Connector. No road existed at that location at that time.

Access from Mars Hill Road and Daniells Bridge Road to SR 316 was further east on Daniells Bridge Road via a road that no longer exists.

The Connector and the existing redesigned intersection of Mars Hill Road and Daniells Bridge Road were built as an outcome of those discussions.

The staff condition allowing only right-in, right out access off the Connector, “if adopted, would be an unconstitutional taking of Applicant's valuable property right without compensation,” Barryman wrote.

Mars Hill Road

The concept plan submitted by Sembler for the shopping center shows five entrances off Mars Hill Road.

The planning staff has recommended only three entrances, with two of them at roundabouts that the developer would be required to construct.

Berryman said “Applicant objects to these requirements on the ground that they are not authorized pursuant to the Georgia Development Impact Fees Law.”

The county could collect fees from the developer for project improvements but not for system improvements, Berryman wrote.

Project improvements are defined as “site improvements and facilities that are planned and designed to provide service for a particular development project and that are necessary for the use and convenience of the occupants or users of the project and are not system improvements,” Barryman quoted state law as saying.

“Roundabouts are clearly system improvements, and Applicant cannot be compelled to provide them as a condition of approval of the Project,” Berryman wrote.

Berryman wants the staff proposed condition deleted, allowing the developer to create the five entrances off Mars Hill Road in the original concept plan.

Ancillary Materials

Berryman attached a series of documents with his letter, including several from 1997 when Oconee County was in discussion with the previous owners of the property proposed for the shopping center regarding what would become the Oconee Connector.

Zoning Map For Three Parcels

The letters discuss the median break in the Oconee Connector that exists in front of what was an Oconee County fire station and access to the Oconee Connector from the property now owned by Price.

Berryman also submitted documents from 2009, when plans were underway for the redesign and widening of the Oconee Connector and Mars Hill Road to Butler’s Crossing.

In one of those 2009 documents, then Board of Commissioners Chair Melvin Davis said the county had agreed on “a median cut at the Oconee Connector, as well as a cross-easement” to the First Station located on the Oconee Connector.”

The final road design approved by the Georgia Department of Transportation for that section of the Connector when the roadway was upgraded did not include the access cut to the Price property, but it did include the median cut.

Berryman argued that the documents he submitted give his client the right to an access cut and the signalized intersection at the median break that is being proposed as the main entrance to the shopping center.

Department of Transportation Response

Guy Herring, Oconee County Planning and Code Enforcement director, confirmed to the Planning Commission at its Jan. 19 meeting that the Georgia Department of Transportation has indicated it will not allow a signalized intersection at that median break.

Herring said that with the proposed improvements to the intersection of the Oconee Connector and SR 316, which involve a flyover and full interchange, the state will retain some control over the Connector between SR 316 and the Mars Hill Road/Daniells Bridge Road intersection.

Jennifer Walker, representing the Mars Hill Responsible Development community group, organized to oppose the rezone, sent a letter via FedEx to Georgia Department of Transportation Commissioner Russell McMurry on March 23 regarding the shopping center entrance.

Walker said the interchange “will negatively impact proposed state route construction, traffic and highway access.”

Walker said as of April 10 she had not heard back from McMurry or anyone else at GDOT.

Changes In Planning Commission

When the Planning Commission meets on April 19, it will have one new member.

Brian Fosen, who participated in the Jan. 18 vote recommending to the Board of Commissioners that it deny the rezone request, has stepped down from the Commission.

At its meeting on April 6, the Board of Commissioners appointed Courtney Matt Elder to the Planning Commission to fill Fosen’s unexpired term.

Elder, who also serves on the county’s Industrial Development Authority, has has a complicated relationship with the county over zoning.

In 2010, the Board of Commissioners, in a 3 to 1 vote, set aside its Future Development Map and rezoned 6.2 acres on SR 15 south of Watkinsville so Elder could move his Oconee Waste Transport business from downtown Watkinsville.

Commissioner Chuck Horton cast the negative vote.

In 2012, Oconee County Magistrate Court Judge Eric W. Norris fined Oconee Waste Transport $1,425 for operating outside the business hours set forth in that rezone ordinance.

Horton joined the other Commissioners on April 6 in selecting Elder from 13 applicants for the position, including several who are very active in the county on other citizen committees and at Town Hall meetings.

Appointments to citizen committees are decided in executive sessions, and no explanation for the selection is offered at the public meeting when the decision in announced and voted upon. None was offered for the Elder appointment.

Elder has sold Oconee Waste Transport to Advanced Disposal, which is now owned by Waste Management.

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