Saturday, January 28, 2023

Owner Of Land For Proposed Oconee Crossing Shopping Center Asks Court To Set Aside County’s Denial Of Rezone Request

***Claims Rights From 1990 Rezone***

Donald Hammett, contending that the Oconee County Board of Commissioners ignored his “vested rights” in the nearly 43 acres he wants to develop as Oconee Crossing Shopping Center, has filed suit to overturn the county’s denial of his rezone request.

Hammett said that he obtained his “vested rights” to develop the property as it was rezoned in 1990 when he purchased the property on the southeast corner of U.S. 78 and Hog Mountain Road in 2005.

Hammett said in the suit filed in Oconee County Superior Court that his goal when he purchased the land was to construct “a major grocery store, shopping center, and outparcels dedicated to food service and a bank.”

Hammett said he acquired additional “vested rights” to develop the property as planned when he “expended substantial sums of money” to obtain sewer service on the property.

Representatives for Hammett had made these same claims when they appeared before the Board of Commissioners on Oct. 4 and had informed the commissioners they would file suit on constitutional grounds if their request was denied.

Large numbers of citizens, many from the bordering Oconee Crossing subdivision, turned out at the Commission meeting and at an earlier one held by the county’s Planning Commission, saying they, too, had relied on that 1990 rezone to protect their neighborhood from certain types of commercial development.

The county, in its answer to the suit, said Hammett’s claim should be dismissed because “The actions of Oconee County, Georgia, complained of in this case were a proper and legal exercise of legislative discretion and do not breach any rights of the Plaintiff.”

Suit Filed

Attorneys Brandon L. Bowen of Cartersville and W. Henry Parkman of Atlanta, representing Hammett, filed the suit against the county in Oconee County Superior Court on Nov. 2.

U.S. 78 Looking Northeast 1/29/2023
Hammett Property To Right Of Sign

Hammett lists his residence in county tax records at a residential address in Kennesaw.

The county filed its answer to the claims in the suit as Dec. 7.

Thomas Mitchell, representing the county, filed a request for delay in discovery on Jan. 6 of this year and a request for an absence on Jan. 20, according to the court docket.

Rezone Denial

On Oct. 4 of last year, the Oconee County Board of Commissioners, in a 3 to 1 vote, rejected the rezone request of by Hammett for the shopping center.

The vote came after a lengthy discussion by the Board following presentations by representatives of Hammett and by representatives of the Oconee Crossing subdivision.

Much of that discussion centered on location of the proposed grocery store, which Hammett wanted to put on land near the subdivision.

The homeowners wanted to move the grocery to an area that would have been separated from the subdivision by a retention pond.

The action by the Board followed two postponements of the rezone request to allow for Hammett and his representatives to negotiate with the homeowners over plans for the commercial development.

Commissioners Amrey Harden, Chuck Horton, and Mark Saxon voted to deny the rezone request. Commissioner Mark Thomas voted against the motion to deny.

The vote followed multiple appearances of residents opposed to the rezone, wearing red t-shirts and with signs saying “Don’t Gwinnett Our Oconee.”

Details Of Purchase

The suit is a restatement of the legal arguments Jeff Carter, from Carter Engineering, representing Hammett, made at that Board of Commissioners meeting in October, and that Parkman had made in correspondence with the county.

In the suit, Hammett said that his “predecessor in interest” had rezoned the property from A-1 (Agricultural use) to B-1 (Business use) in 1990, allowing for “commercial development of the property.”

County records show that Conway C. Brown was the property owner at the time. Records also show that development of the property was to be in phases, with work completed in 1999.

“On Sept. 8, 2005, Mr. Hammett purchased the Property in reliance upon the Property’s B-1 zoning classification, which at the time of purchase would permit Mr. Hammett to accomplish his objective of constructing a major grocery store, shopping center, and outparcels dedicated to food service and a bank on the Property,” according to the suit.

In December of 2011, Hammett sold the 4.9 acre lot on the corner of U.S. 78 and Hog Mountain Road to Camp Families Properties LLC, in Walton County, according to county tax records. Stripling’s General Store was built on that lot in 2012.

Sewer Capacity

In 2015, according to the law suit, Hammett “undertook the process to obtain sewer connection to the Property, including spending significant sums of money in reliance on the existing B-1 zoning classification.”

Stripling's 1/28/2023

The county changed the “requirements and/or process originally outlined to permit sewer connection to the Property,” the suit contends.

“On or about May 25, 2022, after approximately six years of Mr. Hammett’s efforts and after substantial expenditures of time and money, the County issued a sewer construction permit for the Property,” the suit reads.

According to the suit, “in the interim, in 2019, the County revised its Uniform Development Code (“UDC”) such that Mr. Hammett’s original development plan is no longer feasible with the Property’s current B-1 or General Business District zoning designation.”

“Specifically, the revised UDC, among other things, limits single building size and prohibits drive-through restaurants under a B-1 zoning classification, which materially affects Mr. Hammett’s development plans,” according to the suit.

“Per the UDC revisions, a B-2 or Highway Business District zoning designation, is now required for Mr. Hammett to execute his original development plans for the Property,” the suit states.

Action Requested

Hammett sought to have the part of his property where he proposes to put the grocery store and the drive-through restaurants rezoned B-2.

The Board of Commissioners turned down that request.

The suit contends that the B-1 zoning “is unconstitutional as applied to Mr. Hammett’s property.”

“The Board of Commissioner’s decision to deny Petitioner’s application is arbitrary, capricious, inconsistent with the County’s own planning, or the standards for the exercise of the zoning power, and is not reasonable or justifiable by any legitimate grounds,” the suit filed by Bowen and Parkman claims.

“This Court should enter a declaratory judgment in favor of Mr. Hammett, declaring the May 7, 2019, Zoning Amendment void as unconstitutional as applied to Mr. Hammett’s property,” the attorneys state.

The Court also should rule “that Mr. Hammett’s intended commercial development of the property remains feasible under the Property’s current B-1 zoning classification,” according to the attorneys.

Hammett is asking for “An Order enjoining the County from enforcement of the unconstitutional May 7, 2019, amendments to the UDC as to the subject property.”

County Response

In the county’s Dec. 7 response to the suit, attorney Mitchell said the county “is without knowledge or information sufficient to form a belief as to the truthfulness of the allegations” regarding the money spent for the sewer permit application.

The county denied that it had changed the requirements and procedures for obtaining a sewer connection permit. The county admitted that it had issued a permit.

In the response, Mitchell said the county “generally admits it revised the U.D.C. but is without knowledge or information” about Hammett claim that these changes render his development plans “no longer feasible.”

Mitchell denies that the May 7, 2019, Zoning Amendment is unconstitutional.

“At all times, the action of Oconee County, Georgia were proper and in full compliance with the laws of the United States the State of Georgia, and the Unified Development Code and others Codes of Oconee County, Georgia,” Mitchell wrote.

“Oconee County has a rational basis for regulating land uses sought by Plaintiff and distinguishing between it and certain other types of uses at issue in its ordinance,” the response states.

“The alleged injuries and damages sustained by Plaintiff resulted solely from the voluntary and intentional conduct of Plaintiff, and not from any conduct of Defendant,” it continues.

“Oconee County has a compelling interest in protecting the health, safety, and welfare of the public and thus a compelling interest in enforcing its ordinances regulating location of land users,” according to Mitchell’s answer.

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