Judge orders Fayette to rezone or else

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Contempt ruling awaits if county refuses to rezone Ebenezer Road for residential project on 212 acres

A 2016 decision by the Fayette County Commission to deny the rezoning of 212 acres in central Fayette for a 91-lot subdivision has been shot down in court. The proposal is headed back to commissioners for a fresh look.

A 2018 lawsuit in Fayette County Superior Court over a rezoning issue was decided in favor of Marietta-based TSTT Investments LLC, with a proposed residential rezoning for 212 acres in the area of Ebenezer Road and Davis Road headed back the Fayette County Commission.

The last time the rezoning proposal went before commissioners was in 2016, when the property owner requested 91 lots. Proposed for 91 lots under the PUD-PRD (planned unit development-planned residential development), the project was in compliance with the county’s then-current comprehensive Land Use Plan, court documents said. Lots sizes for the project under PUD-PRD zoning would range from 1-4 acres, with most lots 1-2 acres.

Judge Christopher Edwards rendered the decision on April 11, stating that the TSTT rezoning application is “remanded to the Fayette County Board of Commissioners for a rehearing. The county will reevaluate the application under the Comprehensive Plan in effect in 2016 when the application was denied. The court will retain jurisdiction of this matter until the Board of Commissioners has voted upon the application. At that point, this order shall become final. However, if plaintiff remains convinced that the new decision is also unconstitutional, then it may reappear before the court via application for contempt.”

The Fayette County Planning Commission in 2016 while recognizing the inappropriateness of the A-R zoning, recommended a rezoning to R-80 that would allow a maximum of 60 lots.

TSTT in July 2016 appealed to the County Commission, where several neighbors spoke in opposition, expressing concerns about a “high-density subdivision” being inconsistent with the “tone and texture of the county” and citing traffic concerns and the deterioration of schools that would occur from adding children in the new development, the court said.

“However, the primary concern, and the one used by the county at trial to justify its decision, was that the proposed subdivision was ‘perceived’ to detract from the ‘rural character’ of the county. In response, the County Commission voted to deny the matter. (Commissioners) simply acceded to the speculative, unsubstantiated complaints from opponents to the project without any regard to the specious nature of their objections. In denying plaintiff’s rezoning request, the county limited development of the plaintiff’s property to 43 lots,” the court said.

Court documents said TSTT presented credible, clear and convincing evidence that the AR district’s restrictions, and those of the R-80 compromise suggested by the Planning Commission, rendered the property worthless from an economic standpoint, given the additional price for lots, and subsequently for homes, that would required.

“Finally, the county’s (2016) Comprehensive Plan, which is a policy adopted to control growth, expressly allowed a development of one house for every 2-3 acres of land, or 60-91 homes. Although subsequently the Future Land Use Map was amended to A-R-3, even today the property may be developed for at least 60 homes. This area of the county simply is not ‘rural’ and preserving its ‘rural character’ at this location is not warranted,” the court said.