The rezone request for a shopping center with a Publix at the intersection of the Oconee Connector and Mars Hill Road changed course on Monday when an attorney for property owner Maxie Price submitted a five-page letter and a 144-page supplemental document to the county.
In that letter, Attorney David Ellison argued that the county is obligated by past decisions to provide Price with a full commercial access to the Oconee Connector rather than the limited right-in, right-out access recommended by the planning staff of the county.
The planning staff also recommending limiting Price to one main entrance on Mars Hill Road via a roundabout at Hollow Creek Lane.
Price’s plans call for two main entrances on Mars Hill Road, and Ellison also argued that the county cannot force Price to build a roundabout.
Price, through his Deferred Tax LLC, has advanced these arguments before, including when the Board of Commissioners turned down an earlier request in May of 2021 involving these same access points on the Oconee Connector and Mars Hill Road.
At the Planning Commission meeting last month, however, most of the focus had been on the merits of the 11-lot commercial subdivision and the appeal of a new Publix grocery store.
Oconee County Board of Commissioners Chair John Daniell told his fellow commissioners on Tuesday night that the county had received the letter and supplemental document at 12:26 p.m. on Monday.
The request was scheduled to be on the agenda for the Board at its meeting on Tuesday, but Daniell recommended and the Board approved postponement of the hearing and decision not to January but to February 7 “in order to allow allow staff appropriate time to review the information provided.”
Ellison did include one new element in his letter.
At the Planning Commission meeting on Nov. 14, eight citizens, representing a variety of neighborhoods in the county, spoke against the rezone. The central concern was traffic from the development, and the Planning Commission recommended denial of the rezone.
Ellison said the comments of the citizens should be ignored.
“The applicant also objects to any third-party’s claim to have legal standing to object this application,” Ellison wrote.
“No person who spoke in opposition to this application before the Planning Commission demonstrated substantial interest in the application or how their property would suffer a special damage as opposed to some damage that would be common to all property owners similarly situated,” the letter continues.
Ellison said his client also “objects to any proceedings that are not held in accordance with judicial procedures and the minimum requirement of due process.”
As is usual, Ellison said legal action if the county denies the rezone is possible and that, in such a case, he will ask that the county be required to cover legal fees.
The 144-page supplemental document begins with an eight-page sworn affidavit by Ken Beall, a landscape architect who has represented Deferred Tax and Price, including at the Nov. 14 Planning Commission hearing and when the Board of Commissioners turned down the earlier rezone request last year.
|1992 Rezone Map From Beall Documents|
Labeling In Red Not In Beall Original
Click To Enlarge
Beall states in the Nov. 18 affidavit that he has “specific knowledge of the history of the real property” owned by Deferred Tax LLC that is the subject of the zoning application.
While the property presently fronts on SR 316 and the Oconee Connector, Beall stated that “My knowledge of the history of the Property predates the construction of these roads as I assisted previous owners of the Property with the development and zoning of the Property.”
Beall submitted a long list of documents with his affidavit, including those related to the original 1992 rezone of a 69.3 acre tract then owned by 316 Holdings Group A from Athens.
Price is seeking to rezone 33.7 acres for the shopping center, including 26.8 acres that were part of the original 69.3 acre tract rezoned in 1992.
According to county tax records, Deferred Tax purchased the 26.8 acre parcel plus an additional adjoining 6.9 acres that make up the current property up for rezone in 2006 at a cost of $6.2 million.
The county planning staff has combined the letter from Ellison and the 144-page supplemental document into a single file that is available on the county web site.
Beall: Land Little Value At Present
In his sworn affidavit, Beall said “I believe the property has little to no value under existing zoning condition because it cannot be developed under the current binding site plan.”
Ellison builds on this argument in his letter to the Board Board of Commissioners.
Deferred Tax is seeking to combine the two parcels owned by Price and rezone the larger tract from B-1 Planned Unit Development and the smaller tract currently zoned B-2 Highway Business into two clusters of B-2 and B-1 parcels for development.
“The approved site plan for the property is unbuildable and cannot be used in any manner without a rezone,” Ellison argues.
Ellison has said the land has been vacant for 30 years “despite its ideal location” and the property “is worth less than similarly zoned property because it is completely unfeasible to develop it under the current zoning conditions.”
The Board should approve the rezone “because there simply is no public interest to justify the incredible harm to the property owner” from the present zoning, Ellison wrote.
“In sum, the current zoning violates due process and amounts to a taking that interferes with the property owner’s distinct, investment back expectation that the Property could be used for commercial uses and that it would have full commercial access to the Oconee Connector,” the letter continues.”
At the end of the meeting on Tuesday, the Board of Commissioners went into executive session before emerging to announce settlement of a law suit filed by land owner Doug Dickens against the county and the owners of Parkside residential development.
As a result of settlement of a suit between the county and Parkside, Parkside agreed to pay the costs of constructing a sewer line under Mars Hill Road and then along Barber Creek to the lift station at Daniells Bridge Road.
Dickens, whose property is crossed by the sewer line, filed suit against the county and Parkside.
County Attorney Daniell Haygood announced after the Board came back into open session that the legal action involved Dickens Farm and Parkside Property Development LLC and Athens Construction Group, which is building the sewer line.
He called the action a condemnation and inverse condemnation claim “for things that happen during the construction of the sewer line.”
The parties agreed to a settlement of $825,000, Haygood said.
“Pursuant to the settlement agreement in the sewer lawsuit that we had several years ago with Parkside,” Haygood said, “they are obligated to pay for all costs of this sewer line including acquisition right-of-way.”
“Consequently we aren't out of pocket on anything involved with this lawsuit,” Haygood continued.
On Haygood’s advice, the Board approved the consent order settling the legal action.
The video below is of the Nov. 29 meeting of the Board of Commissioners.
The brief discussion of the Deferred Tax rezone is at 29:33 in the video.
The settlement of the sewer line suit is at 31:39 in the video.
The video is stored on the county’s YouTube channel.