Court-ordered rehearing on rezoning 212 acres on Ebenezer Rd. is July 12

Street sign at Lester Road and Davis Road. Photo/Fayette County.
Street sign at Lester Road and Davis Road. Photo/Fayette County.

The July 12 meeting of the Fayette County Commission will include the return of a proposal to rezone 212 acres along Ebenezer Road for a new subdivision. The request from 2016, accompanied by a subsequent denial, is being reheard based on a court decision in favor of the applicant.

Above, street sign at Lester Road and Davis Road. Photo/Fayette County.

Marietta-based TSTT Investments LLC in 2016 requested that a 212.8-acre tract in the area of Ebenezer Road, Ebenezer Church Road and Davis Road be rezoned for 91 residential lots. The request called for a net density of one home per two acres. The request was subsequently denied by commissioners.

A 2018 lawsuit in Fayette County Superior Court over the rezoning issue was decided in favor of TSTT and ordered back to the Fayette County Commission.

The rezoning proposal went before commissioners in 2016, when the property owner requested a rezoning for 91 lots. Proposed under the PUD-PRD (planned unit development-planned residential development) zoning category, 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 (agricultural residential) 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 be 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, 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.