When Oconee County commissioners gathers on June 1 and approve the minutes of their May 4 meeting, they will set the parameters for any near-term plans for development of a shopping center at the corner of Mars Hill Road and the Oconee Connector.
Property owner Maxie Price has 30 days from that date to file an appeal to Oconee County Superior Court of the May 4 denial by the commissioners in a 3 to 1 vote of his request to rezone the nearly 47 acres he owns at that intersection for a large shopping center anchored by a Publix.
Price has six months from the June 1 approval of the minutes to come back to the Commission with a scaled-down version of his request, including a modification of the already approved zoning for a smaller shopping center on the acreage.
After a lapse of a year, Price can come back to the Board of Commissioners for reconsideration of the request denied on May 4 or consideration of a modified version of that request.
Approval of the minutes is a routine matter that takes place at the beginning of Commission meetings but has special significance when it includes the record of zoning actions taken by the commissioners.
Formal Notice
Price’s attorney, William Berryman, notified the commissioners in a letter dated March 2 that Price was prepared to challenge a rejection of his request as unconstitutional.
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| Thomas, Horton, Harden, Saxon, Herring (L-R) |
Denial of the rezone request “would destroy the Applicant's property rights without first paying fair, adequate and just compensation for such rights, in violation of Article 1. Section 1. Paragraph II of the Constitution of the State of Georgia of 1983, and the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States,” according the statement signed by Price and submitted by Berryman.
Rejection of the rezone request “would also constitute an arbitrary, capricious and discriminatory act in zoning the Property to an unconstitutional classification and would likewise violate each of the provisions of the State and Federal Constitutions set forth hereinabove,” the statement continued.
Such claims of unconstitutionality are standard in major zoning decisions and do not indicate that the applicant actually will file suit.
If Price were to take that action, according to Oconee County Attorney Daniel Haygood, Superior Court most likely would limit its review of the case to the issue of constitutionality.
If the Court were to rule that the county had not acted constitutionally, Haygood said, it would not rezone the property but rather would send the request back to the county for another hearing and decision that met constitutional requirements.
Request For Rezone
Price, through his Deferred Tax LLC, owns three parcels fronting on SR 316, the Oconee Connector, Mars Hill Road, and Virgil Langford Road totaling just less than 47 acres.
At present, they are zoned B-2 (Highway Business District), B-1 (General Business District), and R-1 (Single-Family Residential).
Price asked 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 was to be the developer of the proposed shopping center with Publix as the grocery store operator.
Existing Business Properties
It would be possible to put a grocery store on the two properties zoned B-1 and B-2, though it would be necessary to modify the submitted rezone plans to accomplish that.
The B-2 property, zoned in October of 1988, is at the northwest corner of Mars Hill Road and the Oconee Connector.
The rezone was for a shopping center, but no concept plans for the center exist, and the property is undeveloped.
The B-1 property, zoned in February of 1992, stretches from Mars Hill Road on the south, SR 316 to the north and Virgil Langford Road on the west.
The Oconee Connector did not exist at the time, but it forms the eastern border of the existing property covered by the rezone.
The shopping center, according to the concept plan submitted in 1992, was to include a convenience store, a fast food establishment, a regular restaurant, and offices and warehouses. Maximum square footage was 250,000. No center was ever built.
Any request that would come before the Commission after the six-month lag from June 1 would have to address access to both the Connector and Mars Hill Road, and, in the case of the B-1 property, the square footage.
The third property is zoned for residential development, and new concept plans would be needed for that undeveloped property as well reflecting current lot size requirements in the county for residential development.
Three Different Concept Plans
When Deferred Tax initially submitted its proposal for a consolidated B-2 rezone of the three properties in October of 2020, it submitted concept plans prepared by Sembler Company of St. Petersburg, Fla., acting as a preferred developer for Publix.
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| Beall's April 19 Concept Plan |
That plan showed a grocery store, a convenience store with gas pumps, a bank, four fast food and other restaurants, two hotels, five retail buildings, and an auto sales operation.
Publix had committed to occupy a 48,387 square-foot building and serve as the primary anchor of the shopping center.
Total square footage in the concept plans was 322,507.
Land Planner Ken Beall subsequently presented two different concept plans, one at the Planning Commission on April 19 and the other at the Board of Commissioners meeting on May 4.
Although Berryman, in his March 2 letter to the commissioners, had rejected the county’s request that Deferred Tax include two roundabouts on Mars Hill Road in its plans, Beall proposed roundabouts in each of his revisions of the concept plans.
In the April 19 version, one roundabout was at one of the shopping center entrances on Mars Hill Road.
In the May 4 version, the Mars Hill Road roundabout was moved to a different location, and a new roundabout was shown at the main entrance to the shopping center on the Oconee Connector.
Traffic Concerns
The commissioners spent 40 minutes on May 4 asking questions of staff and Beall once the public hearing ended, and every question except one dealt with traffic.
“The issue is Mars Hill Road to me,” Commissioner Chuck Horton, the first of the commissioners to speak, said.
“I don’t care how many entrances you use,” he said about Mars Hill Road, “you’ve still got 14,000 to 21,000 cars on a two-lane road.”
Commission Chair John Daniell also expressed concern about traffic on Mars Hill Road, but his focus was on Beall’s contention that the state had guaranteed access to the Oconee Connector at Price’s property during 2009 discussions of the Connector.
“I don’t find any record of any communication with the current owner in reference to a median break and curb cut access at the 660 mark during that time frame,” Daniell said.
The 660 mark refers to 660 feet from the SR 316 interchange.
Commission Mark Saxon was concerned about whether the two-lane roundabout on the Connector that Beall proposed in his second concept plan was far enough away from the SR 316 intersection.
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| Beall's May 4 Concept Plan |
“The entire roundabout could be built,” Beall said.
Virgil Langford, Publix
Commission Mark Thomas asked about a limited access road from Virgil Langford to the Oconee Connector.
“Traffic is the major concern in this whole area,” he said. “If we can have some type of a collector road that would be part of the project that would help Oconee County and this whole interchange,” he said, “I think that would be a great thing to look at.”
Daniell asked County Planning and Code Enforcement Director Guy Herring if the current B-1 and B-2 zoning allowed for a Publix.
Herring said it did.
Commission Amrey Harden did not ask any questions or make any comments during the discussion.
Thomas cast the sole vote in favor of the rezone.
Daniell didn’t vote. The chair votes only in the case of a tie.
Request For Comments
On May 9, I sent an email message to each of the five commissioners offering each an opportunity to comment on his vote.
Harden and Saxon wrote back and said they did not wish to comment.
Daniell called me and said “it is not in our best interest to do that now, but in the future I don’t mind sharing a little bit regarding what I was thinking.”
Horton told me to talk to County Attorney Haygood.
Haygood told me that “it would be a mistake for any of them to comment on this” because of a possible appeal.
Thomas never responded to my request.
On May 12, I sent Wendell Dawson, who was chair of the Board of Commissioners when the route of the Oconee Connector on both sides of SR 316 was being planned, an email asking for a brief history of the project.
The Oconee Connector from Epps Bridge Parkway back to SR 316 and on to Mars Hill Road was designed and built by the state. No road existed prior to its construction.
Dawson said that the Georgia Department of Transportation intended for the SR 316 intersection with the Connector to be a full, multi-grade interchange from the beginning and acquired enough right of way for that design at the time of the Connector’s construction.
Video
I did not attend the May 4 meeting of the Board of Commissioners but watched via Zoom.
Aaron Nowak did attend and recorded the video below for me.
Commission Chair Daniell opened the rezone hearing for the Deferred Tax request at 4:04 in the video.
Daniell closed the public hearing at 50:07 in the video and opened up the meeting to discussion by the commissioners.
Note: An earlier version of this report, on first reference, said Price had 60 days to request a scaled down version of his initial rezone, though on second reference it said he had six months. I apologize for the error.
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