Developer

Stan Thomas has filed suit against the city of

Fayetteville to get restaurant zoning restored on

a 3.18-acre tract next to Fayette Pavilion.

Relations

between the city and Fayette's largest commercial

developer have been deteriorating in recent

months.

Thomas

had to obtain permits to build a private sewer

system for the third phase of the Pavilion after

the city declined to annex the project into city

limits, as it had done with the first two phases.

Mayor Mike Wheat called for offices on the site,

but the Sharpsburg developer said offices would

be a money loser, and has continued to develop

the property in big box retail outlets, but

outside the city.

City

Council's recent reversion of the zoning,

returning it to a residential category from the

commercial zoning granted a year ago, is

"unconstitutional, null and void,"

according to the suit filed Dec. 14, because it

"denies plaintiff due process and destroys

plaintiff's property rights without first paying

fair, adequate and just compensation for such

rights."

Thomas'

lawyer, John W. Harbin, said he believes the

city's reversion of the zoning is

unconstitutional on its face, because the land is

not suited to residential zoning. "It

doesn't make sense to make it R-40 or anything

like that," he said.

City

attorney David Winkle could not be reached for

comment on the suit.

City

Council rezoned the property in January 1998,

with the condition that a road be built through

the land to provide better access for cars going

south on Ga. Highway 85 from the Pavilion. At the

time, Thomas said he planned to build two

restaurants on the land.

After

the March 16, 1999 deadline for construction of

the road came and went, the council Nov. 8 voted

to revert the zoning from C-3 commercial to its

former R-40 residential category.

This

is the second time the rezoning has been granted

and then rescinded. In October 1996, council

granted a change to C-3 commercial zoning, with

the same condition calling for a road connecting

the property to Hwy. 85.

After

the developer failed to build the road within the

specified time, the zoning reverted, and council

again granted the rezoning, with the same

stipulation, in January 1998.

But

Thomas' lawsuit states that Thomas "has

submitted plans for the construction of the

access road connecting the property with Hwy. 85.

The plans conformed to the provisions of the

zoning chapter, the city building codes and other

ordinances of the city."

According

to the suit, city planner Maurice Ungaro

"refused to approve any plans

submitted."

The

suit asks that a Fayette Superior Court judge

declare the reversion unconstitutional per se,

and also declare it unconstitutional because

Thomas submitted plans that conform to city

ordinances. Furthermore, it alleges that the city

did not give Thomas sufficient notice before the

council voted to revert the zoning, and asks for

a declaration that the reversion "without

proper notice is in violation of the Zoning

Procedures Law."

Thomas'

suit also asks that the city pay his legal costs

involved, and that the court declare the current

zoning to be C-3, declare that the plans the

developer submitted for the road comply with city

ordinances, and direct Ungaro to approve the

building plan and issue a permit for the road.

The

city has up to 30 days from the Dec. 14 filing

date to formally answer the suit. Depositions and

hearings can then be scheduled.

<!--

-----------