Saturday, March 11, 2023

Suit Filed To Overturn County Denial Of Rezone Request For Shopping Center On Oconee Connector At Mars Hill Road

***Suit Anticipated At Rezone Hearing***

As threatened, attorney David Ellison, representing Deferred Tax LLC, has filed suit in Oconee Superior Court asking the Court to overturn the denial of a rezone request for a shopping center with a Publix at the Oconee Connector and Mars Hill Road.

Ellison argues in the suit that Deferred Tax LLC, owned by Maxie Price, has a right to have a full commercial access to the property as a result of agreements with the county and the Georgia Department of Transportation.

He also argues that the county improperly applied zoning requirements to Price that were not in place when Price purchased the property.

The suit ask the Court to declare that the current zoning classification for the just more than 33 acres on the northwest corner of the Connector and Mars Hill Road is unconstitutional.

Ellison asked the Court to require the county “to exercise its zoning a constitutional manner and in compliance with the laws of the state of Georgia.”

The suit also asks for damages “in an amount to be proven at trial” as well as attorney fees.

Ellison filed the suit on March 6, or less than a month after he had made the same arguments about the county and the Georgia Department of Transportation in a public hearing before the Board of Commissioners.

The Board turned down the rezone on Feb. 7 after little discussion in a unanimous vote.

Access To Property

The property Price purchased in 2006 is a part of a larger tract that was divided when the county, in collaboration with the Georgia Department of Transportation, created the Oconee Connector, according to the suit.

Ellison Before Board 2/7/2023

Much of the suit references agreements made at that time and subsequently with the owner of the former property, referred to as “plaintiff’s predecessor in interest.”

The suit states that “Plaintiff’s predecessor in interest agreed to make its Property limited access along the Oconee Connector except for frontage for a median opening on the Oconee Connector in order to accommodate commercial driveway access for the Property.”

At the hearing on Feb. 7, Ellison made it clear his client rejected the county planning staff recommendation that only a right-in, right-out access to the proposed shopping center be granted on the Oconee Connector

Change In Zoning

A second argument advanced in the lawsuit is that the county changed its zoning ordinances and improperly applied them to the Deferred Tax property.

The suit argues that in 1992, when the county rezoned part of the 33 acres owned by Deferred Tax as B-1 General Business District, a “grocery store was a permissible use.”

The county revised its Unified Development Code in 2019, the suit states.

“The County’s revisions to the Unified Development Code prevented the Property from being used as a Shopping Center with a Grocery Store in a manner consistent with Plaintiff’s development plans,” according to the suit.

Outcome Sought

The suit asks for a review by the Court of the county’s denial of the rezone.

“The current zoning classification for the Property causes a significant detriment to the Plaintiff because Tax Map Parcel C 01 045 cannot be used in accordance with its approved site plan,” according to the suit.

Parcel C 01 045 is part of the 33 acres owned by Deferred Tax and included in the rezone request.

The current zoning classification for the Property denies Plaintiff all economically beneficial uses of the Property,” according to the suit.

“The Defendants’ denial of Plaintiff’s application to rezone causes a significant detriment to the Plaintiff that is insubstantially related to the public health, safety, morality or general welfare of the community,” Ellison argues.

Ellison is with the Fortson, Bentley and Griffin law form in Athens.

The suit was referred to Superior Court Chief Judge Eric Norris.

A story about the lawsuit with additional background on the rezone was posted on the web site of The Oconee Enterprise earlier this evening.

1 comment:

Bill Mayberry said...

Having to file suit to jam a project rejected at least twice
by the elected system of the people means something in a republic.
While all citizens or businesses have the right to use the courts,
when the elected representatives of The People say "No",
The Poeple mean "No."
Bill Mayberry