A dispute has arisen between attorney and Heritage Creek Development owner Wayne Kendall and the city of Fayetteville over what Kendall says was unfair treatment he received from the city in mid-2010.
That was when Kendall filed a rezoning application for property at the Villages at Lafayette commercial site along Ga. Highway 54 West that would have featured a Beverly J. Searles Foundation senior apartment facility to anchor the development.
Kendall, a lawyer for the Fayette Chapter of the National Association for the Advancement of Colored People (NAACP), said he believes he was treated unfairly by the city.
City officials believe they acted in good faith and complied with city procedures pertaining to the development process.
And though a relatively minor but pivotal player in the dispute, Searles says Kendall provided them with inaccurate information pertaining to the zoning on the property that left them no choice but to drop the idea because they would not be able to meet state deadlines for tax credits that would have made the project possible.
Kendall maintains that he dropped the idea for the project after Fayetteville City Manager Joe Morton informed him that there was no interest in the project by the city council.
Morton said there was no unfair treatment in the rezoning request because the request could not be expedited in the time frame Kendall wanted.
And as for the Beverly J. Searles Foundation, whose senior apartments facility would have anchored the 13.7-acre site, president Philip Searles says Kendall had incorrectly informed them that the site had already been rezoned for multi-family use.
Searles said it was the foundation that dropped the project because they could not go through the rezoning process in time to meet state deadlines to obtain the Affordable Housing Tax Credits through the Georgia Dept. of Community Affairs (DCA) that would have funded the project.
The property was owned until October 2010 by Kendall’s company, Heritage Creek Development, and had received a rezoning approval in August 2008 for 175,000 square feet of retail, office and residential uses on 13.7 acres of property along the north side of Hwy. 54 immediately east of Lafayette Avenue.
But then the economic recession hit, and the real estate development market locally went into the deep freeze. Kendall’s first proposal did not include the senior apartments.
Kendall said in mid-2010 he had presented an application featuring a Searles senior residential living plan of approximately 120 apartments to the city in mid-2010 on property he owned, but received unfair treatment when he was quickly turned down. As presented, the proposal would have located a Searles senior living facility on the north side of the 13.7-acre tract where a proposed anchor store had been located in his 2008 rezoning approval.
“I brought these developers into the city for this project. The city refused my rezoning application (in mid-2010) and approved the same project for these developers (in mid-2011) on a tract across the street,” Kendall said. “On June 8, 2010, the city manager, Joe Morton, refunded our filing fee stating that there was no need to proceed because the project had no support on the council. The developer paid the filing fee check, and over my objection accepted it back, from the city, effectively terminating the rezoning application. Ironically, just a few months ago they unanimously approved the project, in the same PUD development, only across the street, and on a larger scale from what we had previously proposed.”
Kendall said that after being turned down he dropped the idea for the project. Kendall lost the property to foreclosure a few months later in October 2010.
From the city’s perspective, Morton said the rezoning application was for Kendall’s property that had been rezoned in 2008. The May 2010 application filing wanted to modify the plan to include 120 senior apartments to be developed by Searles. The filing noted the July 22 DCA tax credit application deadline, Morton said.
Morton said he was notified of the filing on June 4, subsequently advising city planning staff of his concerns with expediting the process to meet the July 22 deadline since it would have to go through the city’s planning and zoning commission approval process and that of the city council.
The process of submitting the required documents to the city’s planning department and then moving through the planning and zoning commission and finally completing the process at the city council takes a minimum of 60 days, assuming that there are no hang-ups along the way, Morton said.
Morton in the June 4 memo to the planning department also noted a concern that the May 27 application submittal did not comply with the May 4 submittal deadline.
With the rezoning process unable to be completed prior to the DCA deadline, Searles made an alternative proposal designed to keep the project moving forward.
Morton said Searles representatives did have other conversations with the city about the Lafayette Village project on the property owned by Kendall. But funding and financial equity continued to be a major roadblock, Morton said.
“The final proposal required significant city financial exposure of which there was no city interest to do so,” Morton said, explaining that Searles representatives had approached the city about becoming an equity partner in the project with a stake of up to 25 percent. “The city said ‘no.’”
Morton said he was notified by organization representative David Searles on July 29 that the current project was no longer feasible due to a lack of equity, adding that they would like to meet with other property owners that might be able to provide equity for a future project.
Contacted about the issue as it pertained to the Beverly J. Searles Foundation, organization president Philip Searles said Kendall contacted them in April or May of 2010 about having some zoned land for their purposes. Searles representatives subsequently met with Kendall and city staff about locating in Fayetteville.
Searles said the foundation liked the property and the proposal. Searles said that aside from whatever Kendall and the city might have discussed that led to the dispute, the foundation for its part pulled out of the proposal because there was not sufficient time available to go through the rezoning process, one that included a minimum of 45 days to accomplish, and still meet the state’s July deadline for submitting the required paperwork to DCA for the Affordable Housing Tax Credits that would have funded the project.
But there is more to the issue, Searles said.
“We loved Wayne’s site. He said (the zoning) was ready to go, but he provided us with incorrect information about the zoning for the site. The site was not ready to go because it was not zoned for multi-family. Wayne lost all credibility with us,” Searles said.
The Searles Foundation in 2011 approached the city again about coming to Fayetteville.
A Jan. 19 email to Morton from Richard Searles indicated that the foundation was still interested in coming to Fayetteville provided sufficient state and federal Affordable Housing Tax Credits could be obtained through DCA in the next funding cycle.
Searles in succeeding months looked at two sites on Ga. Highway 85 and the Group VI site on the west side of Lafayette Avenue in the Villages at Lafayette commercial area and preferred the site near the downtown historic district. That site went through the rezoning process and was approved by the city council last summer. Searles said the foundation is still waiting to hear if the state and federal credits for facility will be available in the coming months.
At the end of the day, Kendall maintains that his mid-2010 proposal did not receive a fair shake with the city.
“I believe the project itself is a good one for the community; however, I strongly detest the way business is being conducted where the city is playing favorites and picking the winners and losers. My due process and equal protection rights were denied in the process and I intend to seek justice,” Kendall said in the Oct. 19 email.
Kendall is currently representing the Fayette NAACP in a federal voting district lawsuit against the Fayette County Commission and the Fayette County Board of Education.
