Judge orders rehearing, calls property ‘worthless’ under current zoning
A rezoning request raised from the dead will have to wait a little longer before its fate is determined. The petition to pave the way for a nearly 100-home subdivision was back before the County Board of Commissioners who had voted it down in 2016 because of a court ruling, but it was tabled to a future meeting.
Because both Charles Rousseau and Charles Oddo were absent, the petitioners had the option to table their request until it could be heard by a full Board. Steve Brown will not be at the August 9 meeting, so it will likely not be heard again until August 23 at the earliest.
As a result of a court ruling, commissioners must rehear the request from TSTT Investments and agents Brent Holdings, Donna Black, and Randy Body to rezone 212.823 acres on Ebenezer Church Road and Davis Road from A-R and R-40 to PUD-PRD for a single-family residential subdivision with 91 homes. Lots would range in size from one to four acres.
Both staff and the Planning Commission recommend approval of the rezoning petition.
The Planning Commission recommendation dates back to their July 7, 2016 meeting. An estimated 20-25 people showed up to speak in opposition, and a petition requesting disapproval of the rezoning with more than 200 signatures was presented.
The request then went before the Board of Commissioners at their July 28, 2016 meeting. The petition was denied 4-1.
The Board of Commissioners may be left with little leeway following a ruling in Superior Court.
In his April 11 ruling in TSTT Investments v. Fayette County, Judge Christopher Edwards sided with the petitioners, saying that the BOC’s ruling unfairly limits the economic viability of the property.
He cited the petitioners’ expert, a development consultant, who said the property could not be developed under A-R or R-80 for any “economically-viable” use.
“Plaintiff presented credible, clear, and convincing evidence that the A-R district’s restrictions, as well as the R-80 compromise suggested by the Planning Commission, render the Subject Property worthless from an economic standpoint,” the ruling says.
Edwards sided with the plaintiff in calling the A-R zoning district “overly restrictive,” whereas he lauded the PUD-PRD zoning and its more flexible one-acre lot minimum for its flexibility.
“The PUD-PRD district is very flexible and intended creatively to cluster lots on large acreage to protect, among other things, natural resources. The PUD-PRD category is a good ‘fit’ for the subject property, which contains a ravine, streams, wetlands, and extensive open space.”
Edwards questioned the County’s claims of the need to preserve rural character in rejecting the rezoning and the small lot sizes that would come with it, citing the County’s Future Land Use Map that allows for development of at least 60 homes.
“This area of the County is simply not ‘rural,’ and preserving its ‘rural character’ at this location is not warranted.”
Saying that the current A-R zoning’s minimum of five-acre lots would limit the petitioners to no more than 43 lots, Edwards said the denial violates the petitioners’ constitutional rights.
“Anything other than zoning the property to a district which allows an economically viable use is hereby declared unconstitutional by this Court, and specially the A-R and R-80 categories as applied to the Subject Property are unconstitutional.”
His ruling requires the commissioners to rehear the request and leaves open the possibility for the case to return to the courtroom if the petitioners are still not happy with the outcome.
“If Plaintiff remains convinced that the new decision is also unconstitutional, then it may reappear before the Court via application for contempt.”