The County Board of Commissioners and developers are set to go toe-to-toe again over a 2016 rezoning request following another debate at Thursday night’s meeting.
The petitioners fought the commissioners’ 2016 ruling in court, with Fayette County Superior Court Judge Christopher Edwards coming down against the county and demanding the BOC rehear the request. The county appealed to the State Supreme Court, but they declined to hear the case, tying commissioners’ hands on a critical rezoning case.
The petitioners, TSTT Investments out of Marietta, are demanding flexible PUD-PRD zoning for the 212-acre plot fronting on Ebenezer Church Road and Davis Road so they can develop a single-family residential subdivision with 91 lots ranging in size from one to four acres.
Thursday night, a defiant Board of Commissioners instead approved a different zoning option, R-78, with a minimum lot size of two acres, with the developers planning to take the case back to court.
The commissioners’ options were limited because the judge’s ruling leaves open the possibility they could be found in contempt and thrown in jail.
Commissioner Randy Ognio took issue with the ruling.
“I looked at this judgment, and there’s so much in it that’s just wrong,” he said, taking particular issue with its opposition to citizen input and its threat to consider the commissioners in contempt. “I sure don’t want to be in contempt of court, but I’m not in favor of the zoning either.”
Neighboring residents have expressed concern over a number of potential consequences from the development, including environmental issues, added traffic, and protection of the area’s rural character.
In 2016, the Board of Commissioners denied the petition 4-1.
“The Board of Commissioners’ decision was based on the sound logic of preventing an adverse impact on the citizens of Fayette County by depleting vital road capacity and obstructing normal usage of the rural road system in the area, as well as the impact on safety and the environment,” Commissioner Steve Brown said of their denial. “There are numerous valid land uses available to the property in question and the action taken by the Board of Commissioners in no way resembles an unreasonable exercise of the County’s policing power constituting a taking without just compensation.”
The developers sued following the county’s 2016 decision, taking the case to Superior Court. In his April 11, 2018 ruling in TSTT Investments v. Fayette County, Judge 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. He 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.
“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.
Brown disputed Edwards’s assertion that the land would be “worthless.”
“To claim that the County’s decision on the applicants requested zoning change rendered the property worthless is highly impractical, and the property has ample economic viability,” he said. “There was a rezoning denial on this property back in 2005 and another failed attempt in 2007. Obviously, there have been several land speculators over the years who have attempted to ignore the well-reasoned expectations and plans for the County.
“We’re supposed to guarantee his risky speculation on a piece of property.”
Ognio also took issue with claims that the property would have no value under current zoning.
“I don’t know if any property in Fayette County has a zero value, no matter what the zoning,” he said. “How an order like this can come about just amazes me.”
Back in July 2016, the Planning Commission heard the request to rezone from A-R and R-40 to PUD-PRD and instead recommended a less dense R-80 zoning. At trial, the developers claimed R-80 would also not be economically viable, and Edwards included that as a prohibited zoning in his ruling.
“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,” said the ruling.
Kathy Zickert, an attorney representing the developers, reasserted that they would not accept R-80.
“That is really not a compromise that is available and on the table tonight,” said Zickert. “We need the PRD with the 91 lots.”
Edwards’ ruling allows for the developers to apply for contempt of court if they are still displeased with the county’s zoning decision.
“That is what would happen if there is not an affirmative decision to approve an economically viable plan,” said Zickert.
Commissioner Charles Rousseau asked Zickert if her clients would consider discussing alternative zoning options, and she simply replied, “No.”
“I know this is a bitter pill to swallow, and I feel bad about that, quite frankly, however my client has a constitutional right to develop his property,” she said.
The Board voted 4-1 to approve rezoning to R-78, with Commissioner Charles Oddo in opposition, citing his original support of the rezoning request in 2016.
Brown cautioned about the wide-ranging implication of judges dictating zoning decisions.
“If we start allowing judges to rezone the entire county, we are in dire straits, and that’s what the judge is asking to do,” he said. “We should never allow the judges who know nothing about land planning, who know nothing about transportation, to take over the land use and transportation system. That’s insane.”