Saturday, April 15, 2023

Oconee County Responds To Lawsuit Seeking To Overturn Rejection Of Shopping Center At Mars Hill Road And Oconee Connector

***County Says Owner Responsible For Any Injury Sustained***

Oconee County filed its response on Tuesday to the lawsuit seeking to overturn its denial of a rezone request for a shopping Center at Mars Hill Road and the Oconee Connector, saying that the claims are barred by applicable statutes of limitations.

Deferred Tax LLC, which filled the suit against the county on March 6, also failed to use and exhaust remedies afforded by state law to address the claims it has made, the response by the county states.

In addition, according to the response filed by attorney Thomas M. Mitchell on behalf of the county, the alleged injuries and damages sustained by Deferred Tax LLC “resulted solely from the voluntary and intentional conduct” of Deferred Tax.

Deferred Tax LLC was “not deprived of any constitutionally protected rights,” Mitchell wrote, despite the claim to the contrary by attorney Daniel Ellison, who is representing Deferred Tax LLC in the suit in Oconee County Superior Court.

Mitchell’s filing includes a point-by-point response to the assertions in the suit filed by Ellison, indicating that the county is “without knowledge or information sufficient to form a belief as to the truthfulness” of the allegation in many cases.

The county also admits some of the allegations made by Ellison and denies a long list of others.

Ellison has asked the Court to overturn the Feb. 7 denial by the Oconee County Board of Commissioners of a rezone request for the proposed shopping center, which was to include a Publix and have entrances on both the Connector and Mars Hill Road.

Basis Of Law Suit

Access to the just more than 33 acres on the northwest corner of the Connector and Mars Hill Road owned by Maxie Price’s Deferred Tax LLC was a central issue in the rezone and in the lawsuit filed by Ellison on March 6.

Complaint And Response

In 2006, Price purchased the property, which was 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 Ellison’s suit and arguments made at the time of the rezone request.

The suit references agreements allegedly made at that time and subsequently with the owner of the former property.

The suit states that the former owner 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 development of the property Price bought.

The Oconee County planning staff had proposed that the entrance to the property from the Connector be right in, right out only.

Ellison rejected that condition during the rezone hearings and also rejected restrictions the county had placed on the entrances to the shopping center from Mars Hill Road.

Mitchell Response

In his response, Mitchell did not indicate specifically what options for remedies Ellison is seeking were affected by statutes of limitation or what remedies Deferred Tax had not pursued.

Mitchell simply writes that “Plaintiff has failed to properly and fully utilize and exhaust available state and administrative procedures and/or remedies afforded by state law in which all claims asserted by Plaintiff in the action could be fully adjudicated.”

“The alleged injuries and damages sustained by Plaintiff resulted solely from the voluntary and intentional conduct of Plaintiff, and not from any conduct of Defendants,” Mitchell wrote. Deferred Tax is the plaintiff and the county is the defendant.

“Oconee County, Georgia and the Board of Commissioners of 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,” Mitchell states.

Specific Responses

Ellison’s suit lists 52 specific assertions, but they are misnumbered, running from 1-32 and then from 21 to 43. Ellison is with the Fortson, Bentley and Griffin law firm in Athens.

Mitchell, who is with Carothers and Mitchell in Buford, responded to them in order.

The county admits to most of the early allegations, which restate the history of the property owned by Price and for which he was seeking the rezone. Mitchell said the county is “without knowledge or information sufficient to form a belief as to the truthfulness of the allegations” about the Georgia Department of Transportation plans for construction of SR 316.

The county denies allegations Ellison made about details of construction of the Oconee Connector.

For example, the county denied Ellison’s assertion that “The County could not afford to purchase right of way for the Oconee Connector unless adjoining property owners donated the right of way.”

The county also denied Ellison’s assertion that the previous owner of Price’s property “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 Price’s property.

The county also denied Ellison's allegation that “GDOT and the County have confirmed its agreement to allow commercial access from the Property through the median break on the Oconee Connector on several occasions prior to the filing of this action.”

Additional Claims And Responses

Ellison said in his suit that Price purchased the property “for purposes of developing the property for a shopping center with a variety of uses such as Grocery Stores” and that the “Property could no longer be developed in accordance with its binding site plan."

The county said it lacked knowledge to be able to “form a belief as to the truthfulness of the allegations.”

The county denied Ellison’s assertion that a B-2 Highway Business “designation is now required for Plaintiff to complete his original development plans for the Property.”

The county also denied Ellison’s statements that the current zoning classification “is insubstantially related to the public health, safety, morality or general welfare of the community” and “results in relatively little gain or benefit to the public while inflicting serious injury or loss on the Plaintiff.”

The county denies that its rejection of the rezone request “violates the Takings Clause of the United States and Georgia Constitution” and “causes permanent physical infringement of Plaintiff’s property.”

The county also rejects Deferred Tax’s statement that it is entitled to a declaratory judgment forcing the county to change its decision and to provide compensation for the action taken.

The county did admit that Deferred Tax had applied for a rezone for the properties from B-1 (Business) to B-2 and that the request had been denied on Feb. 7, 2023.

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

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