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By Editor Becky Watts
ZEBULON - The Hughley Road Development case has been settled. The development has a long history and began in 1999 and has been in court for the past three years. This Planned Residential Development (PRD) originally would have allowed mixed residential uses with a density of up to 8 units per acre. Today, attorneys from all parties met at the Pike County Courthouse to hammer out a final agreement that was signed by Senior Superior Court Judge Grant Brantley of Cobb County Superior Court.
About a dozen citizens, three members of the press, two Zebulon Council members, and Rob Morton of Morton and Morton and Dana Maine of Freeman, Mathis & Gary--attorneys for the City of Zebulon, Newton Galloway of Galloway & Lyndall--attorney for developer Brent Pike LLC, and Lee Parks, Jr.--attorney for the petitioners including representative James Quick all met at the Pike County Courthouse for a procedural hearing on the Zebulon Development.
Attorney A. Lee Marks, Jr. of Parks, Chesin & Walbert, PC advised the judge that all parties had worked out a resolution to the case prior to the hearing and asked for 5 or 10 minutes to finish the final terms of the agreement. True to their word, the attorneys and James Quick met in a jury room and brought an agreement to the judge for final approval that settles this case. By 10:25 a.m. the case was resolved and the final copy was taken to Rob Morton's office to be typed up and readied for final signatures.
The Consent Order includes a partial revision to the Settlement and Development Agreement approved by the Court on November 18, 2014. (Click on the link at the bottom of this article to read past articles on this case.) The developer, Brent Pike, proposed a modification that increased the lot size required for each home to one acre and required that the new houses have a minimum of 1,850 heated square feet.
The matter has now been dismissed with prejudice, which means that the case is settled unless there is a problem related to the development of the property that pertains to the terms of this Order. [Note from the Editor: This conforms to the city’s current zoning ordinance that was passed in 2004. The development was originally filed in 1999.]
The Order ends by saying, "No party to this action will be considered a prevailing party and each party will bear its own costs, including attorneys' fees."
Thoughts from Parties Involved in the Case
Rob Morton emphasized after the hearing that no party is considered a prevailing party, and that each party pays its own court fees. The city maintains that it has been in lawful compliance with its ordinances. [Note from the Editor: The history of this development is contained in the article entitled "City of Zebulon Approves Large Development on Hughley Road."] Mr. Morton advised that the other party had about $20,000 in attorney's fees related to this case.
Newton Galloway advised that the nubmer of lots has declined since 2003 and that the density has been decreased to 189 houses on one acre lots.
Petitioner James Quick advised that he was "very happy with the settlement." He said that this settlement reduces the total number of homes from 505 to 301. There will be 189 single family homes and 112 town house units. The original proposal called for 1,400 square foot homes on 1/3 of an acre but has now been increased to 1,850 heated square feet on one acre lots. The square footage of town houses has been increased from 900 square feet to 1,500 square feet.
Mr. Quick said that he got involved with this in the beginning because of school taxes for taxpayers and pointed out that although school taxes will still go up, they will go up less than half of what they would have. He said that these changes will increase the value of homes to $160,000 or $175,000.
Lee Parks, attorney for James Quick and the petitioners, said that the outcome of this case shows the power of the citizens to force the city and developers to abide by the law. "Congratulations to the citizens," he said. "That's the beauty of our system."
Other Matters of Note
City Administrator Larry Mitcham advised by phone this morning that the Zebulon City Council met on November 15, 2016 and approved a couple of items that are related to this development. The City waived water and sewer tap fees contingent upon their installation by the developer after approval by the City. The City also approved extending the deadline for commencement of construction to November 17, 2018.
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By Editor Becky Watts
ZEBULON - A hearing will be held at 10 a.m. on November 21, 2016 in the Pike County Courthouse main courtroom on the Hughley Road Development case. Senior Superior Court Judge Grant Brantley of Cobb County Superior Court will hear the case.
This is the first hearing that has been held since Judge Tommy Hankinson recused himself from the case on September 4, 2015. An order was signed by Brian Amero, Administrative Judge of the 6th Judicial Administrative District on July 25, 2016, advising that the Honorable Grant Brantley, Senior Judge, has agreed to hear this case until it is completed.
Pike County Times has been following the Zebulon Housing Development case for some time now and has finished the write up on the case from all documents filed with the court through April of 2015. Pike County Times obtained these documents last winter and began a lengthy set of articles based on the information. Pike County Times has obtained another $17 worth of documents on this case that will included on here soon. Breaking News Alerts supporters will receive this information first.
Readers can get a detailed overview of this case from "BREAKING NEWS: Updates on Hughley Road Development October 2014 to Date: Part I and II." The Part II article contains brand new information that was uploaded today.
To date, this case has been assigned to three judges in our judicial district. All have recused themselves from this case. Readers can follow up on the last time that this case was in court by reading "BREAKING NEWS: James Quick vs. The City of Zebulon Postponed for a New Judge and Court Date."
At this time, the case is in the process of being assigned to a senior judge from another circuit.
[Note from the Editor: A history of this development is in the articles below. The article below entitled, "City of Zebulon Approves Large Development on Hughley Road" contains information on the first approval of the site plan in 2003, subsequent agreement mentioned above in 2004, and various information from all parties on this development. Reading from the bottom of the page to the top (with the exception of the Part I and Part II articles) will give information on this case in a chronological order of sorts. There is a whole lot more to this case than I realized when I took it on, and it continues even today. Further note that there is a list of mayors and council members at the bottom of the page. It is the same as the linked document that has been online since last year, but it is now more easily accessible.]
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By Editor Becky Watts
ZEBULON - The City of Zebulon issued a response to the press on October 14, 2015. It is entitled, "City of Zebulon's Response to Misinformation About The Hughley Road Subdivision." This is the press release in its entirety.
"There is a mistaken belief that the current City Council approved the Hughley Road Subdivision. To the contrary, the subdivision was approved in 2004. In August 2014, the current City Council approved the settlement of litigation that was initiated by the Developer in 2009. This 2009 litigation sought to implement the approval that the previous City Council gave in 2004 for this development. In analyzing the claims the developer brought in the 2009 law suit, the City determined that the best course for the City was to settle the suit in view of the facts including the fact that this development had been approved in 2004. Moreover, the approval given by the Mayor and Council in 2004 included the stipulation that the develpment would be submitted in accordance with the provisions and requirements of the City's ordinance prior to the revisions of June 2004, including Section 504.11. Accordingly, the settlement approved by the current City Council in August of 2014 of the 2009 law suit was not a matter of independently analyzing and approving the development as the development had already received approval in 2004; rather, it was settling a claim agains the City to avoid creating a financial hardwhip for the City in the event the developer prevailed in the 2009 law suit.
None of the current City Council members have ever taken a campaign contribution from Brent Pike, LLC or any person associated with that company."
By Editor Becky Watts
ZEBULON - The courtroom in the Pike County Courthouse was standing room only this morning with most of the people coming to hear the Hughley Road case. The room was so full that Judge Hankinson had to ask all of the attorneys in the audience to come to the front so that the public could find a seat. The case was adjourned after 11 with the petitioner asking for a new judge and another court date.
Six people gathered around Judge Hankinson's bench at 10:09 a.m. before a short break with court beginning again at 10:45 a.m. Several short cases were settled before the Hughley Road case was finally discussed.
Attorneys and Motions
Here are the main attorneys: M. Travis Foust from Parks, Chesin, and Walbert, PC in Atlanta for the plaintiff James Quick, Newton Galloway from Galloway and Lyndall in Griffin for the developer as well as Robert P. Williams II of Troutman and Sanders in Atlanta, Dana Maine from Freeman, Mathis, and Gary, LLP for the City of Zebulon, and Rob Morton from Morton and Morton for the City of Zebulon.
There were a couple of motions before the court today. The first was a Motion to Dismiss from The City of Zebulon and the second was a Motion to Intervene from the attorneys representing Brent Scarborough and Brent Pike LLC, the developer for the Hughley Road property. The Motion to Intervene was so that the developer, Brent Scarborough of Pike LLC, can take part in the case and be a part of the Motion to Dismiss.
Let the Motions Hearing Begin
The attorneys set up across the front of the courtroom using all of the table space for their files in preparation to present their case, but when Judge Hankinson heard the name Brent Scarborough and Brent Pike LLC, he halted the proceedings and called all of the attorneys out of the courtroom.
After a brief time, the attorneys came back into the courtroom and talked to their clients before going back to meet outside of the courtroom once again. When it was all said and done, one of the petitioner's attorneys addressed the crowd and told the crowded courtroom why the case was dismissed for the day.
Case Dismissed for Today
Judge Hankinson disclosed a potential conflict of interest with the developer, Brent Scarborough of Brent Pike, LLC. The plaintiff, James Quick, through his attorney has filed for a different judge to be assigned to the case.
It was explained that Judge Hankinson thought that third party’s actual name was Brent Pike (as in Brent Pike LLC) rather than Brent Scarborough. When Newton Galloway said Brent Scarborough, Judge Hankinson realized the connection and notified all parties of the possible conflict of interest. This was a potential conflict of interest because Brent Scarborough may have made a donation to Judge Hankinson’s campaign and possibly allowed campaign signage to be placed on his property during an election ten or more years ago. “It was good of him to notify us,” said the plaintiff’s attorney.
Mayor Mike Beres stated that the City of Zebulon wanted to go ahead and do this procedure, and Mr. Quick’s attorney said that the petitioner (as in Mr. Quick and his attorneys) made this decision to ask for another judge in this case.
The City of Zebulon’s lead attorney, Dana Maine, said that the contribution was made “ten plus” years ago. Mr. Quick’s attorney advised the audience that Judge Hankinson could not remember whether Mr. Scarborough made a donation or it was a donation of space for signage so this will be confirmed before to moving forward.
Where Do We Go Now?
The next move in this case will be to get another judge and another hearing date. Pike County Times will continue to follow this case and keep the public apprised of what is going on.
You can read the long history of this development below as well as reading who the council members and mayors have been throughout this case.
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By Editor Becky Watts
ZEBULON - This article contains pertinent information on two court cases that have been before Pike County Superior Court over the past year. One case was settled before Judge Mack Crawford between the developer, Brent Pike LLC, and the City of Zebulon, and the other has been postponed until a judge from outside of the jurisdiction can be found to preside over the case. [Note from the Editor: It will be helpful to readers if you read City of Zebulon Approves Large Development on Hughley Road at the bottom of the page before you read this article because it is a continuation of two intertwined court cases and a housing development proposal that stretches all of the way back to 1999.]
Respondant's (City's) Motion to Dismiss
In the Respondant's Motion to Dismiss filed on October 22, 2014, the City of Zebulon argued for the case to be dismissed saying that James Quick and the other petitioners are appealing a legislative decision made by the Planning Commission as well as an administrative decision and both have different methods of appeal. The City said that this case cannot be argued both ways. However, the City argues that this part of the claim cannot even be considered until the property owner/developer, Brent Pike LLC, becomes a part of the lawsuit. [Note from the Editor: Brent Pike LLC argued to become a part of the lawsuit in September of 2015, and this is noted in the article below entitled, "BREAKING NEWS: James Quick vs. The City of Zebulon Postponed for a New Judge and Court Date."] The City goes even farther to argue that the petitioners are not entitled to mandamus relief because a mandamus is only allowed when there has been a failure to act on an issue [like a courthouse or jail that needs extensive repairs and has been ignored for a long period of time], but the City's attorney argue that the plaintiff is seeking "to undo a past act" so this isn't the proper avenue to follow.
The City then argues that about that the distinction between administrative and legislative powers is an important one based on review of the courts. RCG Properties LLC v. City of Atlanta, Board of Zoning Ajustment (2003) establishes the following: in an administrative review case, no new evidence can be considered and the Superior Court is bound by the facts considered by the agency that made the original decision. Appeals on rezoning decisions allow new evidence including expert testimony. The City concludes that the August 12, 2014 decision made by the Mayor and City Council was the approval of a site plan to develop property and that this is an administrative review rather than a zoning decision.
According to Section 415.3 of Zebulon's Code of Ordinance, decisions of the Mayor and Council and be appealed in the following ways. Appeals to final administrative action decisions made by the Zoning Administrator, Planning and Zoning Council, and/or the Mayor and Council "including but not limited to decisions regarding plat approval and variances, shall be made to the Pike Superior Court by Writ of Certiorari and shall be limited to a review of the record made in the administrative process." It also states that the appeal must be filed within 30 days of the administrative decision. Appeals to legislative action made by the Mayor and Council "including decisions related to Zoning Ordinanaces, Amendments to the Zoning Ordinance, Rezoning and special exceptions shall be a de novo, limited judicial review, appeal to the Pike County Superior Court" and must be filed within 30 day so of the legislative decision.
The City Files Answers and Defenses to Petition for De Novo Judicial Review, Writ of Certiorari and Complaint for Mandamus
Also on October 22, 2014, the City filed Answers and Defenses to Petition for De Novo Judicial Review, Writ of Certiorari and Complaint for Mandamus with the Court as a response to the Petition for De Novo Judicial Review, Writ of Certiorari and Complaint for Mandamus filed by James Quick et. al on September 10, 2014. In this case, the plaintiff (James Quick et al) argues in their filing that the minimum lot size for a Planned Residential Development requires all single family residential units to have a minimum heated square footage requirement of 1,850 square feet according to the ordinance that was passed in 2004. The City admits that the site plan may not go by the 2004 regulations but deny that this site plan was required to comply with these regulations. The City went on to say that this site plan did comply with conditions and stipulations that it was required to abide by when it was adopted on September 14, 2004. This filing argued against a majority of the claims in the original complaint, argued against attorney's fees for the plaintiffs, and asked for fees and court costs for the City.
New Attorneys Enter the Case
On November 18, 2014, M. Travis Foust and Alexandra "Sachi" Cole of Parks, Chesin, and Walbert, PC signed on as additional counsel for James Quick and those fighting the Hughley Road Development.
Case Between City and Brent Pike LLC is Settled
On the same day that new attorneys are entering the case on the behalf of James Quick and those fighting the Hughley Road Developemnt, November 18, 2014, the case of Brent Pike LLC v City of Zebulon was settled in Pike County Superior Court. This case was filed on July 27, 2009 by Brent Pike with the City filing an answer on October 29, 2009. Both parties reached an agreement and brought it before the court to end this lawsuit. The Final Order includes a Settlement and Development Agreement between Brent Pike LLC and the City of Zebulon. It was signed by Brent Pike LLC's attorney Newton Galloway, and the City's attorney Rob Morton before Judge Mack Crawford.
The settlement agreement for the approximately 335.82 acres was as follows: Brent Pike LLC agreed to 450 residential units instead 505 residential units on this property, and the minimum square footage would be 1,500 heated square feet rather than 1,250. There will also be two entrances on Hughley Road and two or more on Highway 19 pending approval of the Georgia Department of Transportation. Brent Pike LLC agreed that up to 100 lots may flow into the existing Zebulon sewer system and that after that, the owner "shall agree to contribute to the costs of to upgrade the existing lift station or participate in the construction of a new lift station on a pro rata basis required to serve the remaining undeveloped portion of the Subject Property." Brent Pike LLC also agreed to pay Tap and Impact Fees according to the schedule in place at the time of each building permit.
While this case was settled between Brent Pike LLC and the City of Zebulon, the case against the Housing Development continued on in Pike County Superior Court.
Petitioner's (James Quick's) Brief in Opposition to Respondants' Motion to Dismiss
On December 8, 2014, James Quick et al filed a Brief in Opposition to Respondants' Motion to Dismiss. In it, they argue that this case should not be treated like a run of the mill zoning dispute. They say that their dispute arises from "the arbitrary and capricious decision" by the Council's decision to approve this development even though they said that it violated the City's zoning ordinance. They also claim that the City failed to enforce its own laws and argued that the entire case is moot because the prior conditional approval was given to another developer and Brent Pike LLC didn't purchase the property until 2008.
They argue that the City amended its Zoning Ordinance in May of 2004 to limit residential development in Planned Residential Development (PRD) to one single family residential unit per one acre with a minimum square footage of living space, that the Zebulon Planning and Zoning Commission denied the proposed development plan but the City Council approved the development plan on August 12, 2014 when the developer argued that there was a preliminary approval in 2004 to the previous owner. It argues that the RCG Properties case does not apply because the City acted in a legislative capacity so it is entitled to a de novo review by Superior Court as well as a writ of mandamus because there is no other adequate remedy available to them. They cite the Bibb v. Monroe County case (2014) that went before the Georgia Supreme Court saying that a right to relief exists when compelling a public official to perform a duty that it was already required to perform and did not. They cite other cases to argue that a right to relief exists when an official or agency "commits a gross abuse of discretion" or deviates from a zoning ordinance.
Petitioner's case in a nutshell here. --> To put this more simply, James Quick and the joining petitioners are arguing that the City failed to follow their own zoning ordinance and abused their discretition when they decided that the the zoning ordinance did not apply based on a prior agreement on a development plan made by a prior City Council for a prior owner of this property before the adoption of the current zoning ordinance. They argue that the City must follow its zoning ordinances and that they have no discretion to do anything else. They also argue that Brent Pike LLC is not a required party in this lawsuit because the property was bought by Brent Pike LLC in 2008 and was therefore under the PRD requirements from 2004.
A petition signed by approximately 990 people from addresses throughout the county was presented to the court as a part of the response as well.
Brent Pike LLC Asks to Join the Lawsuit
On January 29, 2015, Brent Pike LLC filed a Motion to Intervene with the court. This brief states that it wants to join with the City and be a part of this lawsuit in order to protect its interest in the approximately 335 acre property. Newton Galloway of Galloway and Lyndall LLP and Robert Williams II of Troutman Sanders LLP are the attorneys who filed on behalf of Brent Pike LLC.
Brent Pike LLC Provides Answers in Lawsuit
This was filed at the same time that Brent Pike filed its Motion to Intervene above. In this, Brent Pike argued that the petitioners (James Quick and the other people who filed this lawsuit) do not have standing to challenge the decision to allow the Zebulon Housing Development because they did not follow proper procedural requirements from the Zoning Ordinance governing appeals. It was also argued that the petitioners are prohibited from recovery of attorney's fees because the Respondants (the City of Zebulon) acted in good faith and were not "stubbornly litigious." They also argued that the City's approval of this development plan was not a zoning decision, that it cannot be appealed like a legislative action, and the Court does not have jurisdiction over the case because the lawsuit is trying to overturn a prior court decision including the November 18, 2014 Order in Brent Pike vs. City of Zebulon and the September 14, 2004 decision that granted conditional approval of the development plan that was given to the City by the former property owner.
Brent Pike LLC further stated that the petitioner, Bobby Blalock, was the Mayor of Zebulon on September 14, 2004 when the PRD was given conditional approval by the City and that as the former Mayor, Blalock has a duty to act in good faith to uphold the validity of actions by the City because he was a part of the government that granted the approval. Brent Pike LLC said that Blalock has violated his duties from his time as Mayor and has violated Brent Pike's rights because it had relied on the 2004 approval from the City of Zebulon. Brent Pike asked for dismissal of the case and relief from the Court on the matter.
By Editor Becky Watts
ZEBULON - This is a continuation of the article above. The entire case centers around the August 12, 2014 Zebulon City Council decision to approve development of property based on a settlement agreement that resolved Brent Pike LLC vs. City of Zebulon that had been filed in Pike Superior Court in 2009 and was approved by the Court on November 18, 2014. This was extensively discussed in the August 12, 2014 City Council meeting because the City conditionally approved the development plan on September 14, 2004.
February 2, 2015 Letter to Bobby Blalock and Jim Quick from A. Lee Parks
This letter is a part of the Court case as well. In this letter, Attorney Parks sent a copy of Brent Pike's Motion to intervene with a letter that advised of the developer's attempt to join the lawsuit. It stated, "While they probably have a right to participate in the case, we will respond to the Moiton to point out to the Court that the prior settlement they obtained from the City does not create any obstacle to our ability to require the develop [sic] to conform to the City zoning ordinance."
The attorney also advised that the developer joining the case will increase the cost of litigating the case and said that the developer will try to outspend them in hopes that they will discontinue the case. He asked to meet with them and discuss the budget for the case.
City Reply in Support of Motion to Dismiss
This was filed on February 2, 2015 and stated that James Quick and the rest of the Plaintiffs are appealing the August 12, 2014 City Council decision to approve the conceptual site plan for the housing development by requesting a de novo judicial review, a writ of mandamus, and a record writ of certiorari review. The City asked that the first two be dismissed leaving the record writ of certiorari claim only.
Reasons for this argument for dismissal include the assertion that a mandamus is only allowed when there is no other remedy. The City also argued that the City Council was acting within its capacity as an administrative agency and that the petitioner's attempts to say that this was a special exception should be rejected by the Court with the Court focusing on whether the City Council acted within the powers that it was allowed, whether it abused those posers or whether it blatantly disregarded an individual's constitutional rights. The City concluded by saying that a writ of certiorari allows the Court to review this in a manner allowable by Supreme Court ruling and also according to the City's own ordinance.
Notice of Non-Opposition to Brent Pike LLC's Motion to Intervene
The City advised the Court on February 9, 2016 that it did not oppose Brent Pike LLC becoming a part of the lawsuit.
Brent Pike LLC's Motion to Dismiss and Brief in Support
Brent Pike LLC is not yet part of the case, but presented its arguments for the court regardless filed on February 17, 2015. Brent Pike LLC is the owner of the tract in the City that is currently being presented to the court and the petitioners include the current Mayor of Zebulon, Bobby Blalock, and several adjacent land owners.
Important info here. --> The case centers around the August 12, 2014 decision by the Zebulon City Council to approve the plan for Brent Pike LLC's PRD. Brent Pike LLC v. City of Zebulon was filed in 2009 and settled on November 18, 2014 in Pike County Superior Court. The litigation arose from the City's failure to allow Brent Pike to develop property according to a development plan that the City of Zebulon gave conditional approval to on September 14, 2004.
Brent Pike LLC's argument in a nutshell right here. --> Brent Pike LLC argued that this entire court case is basically trying to overturn another court decision with this case without appealing the other case when those filing this lawsuit knew about the other lawsuit and chose not to challenge it. Brent Pike LLC states that according to the record of the public hearing held during the Zebulon City Council Regular Meeting held on August 12, 2014 at 6:00 p.m., Bobby Blalock and the petitioners of this current lawsuit knew that 2014 Approval was "specifically intended to resolve that pending litigation" but they chose not to intervene or do anything that would prevent that settlement from taking place. This agreement between the City and Brent Pike LLC for the development plan for the property was adopted by the Court on November 18, 2014.
Brent Pike LLC also pointed out that the 2004 agreement established that the pre-2004 zoning agreement governed this property and that the petitioners knew this because Bobby Blalock was the Mayor on September 14, 2004 when the approval was issued. Further argument stated that state law only allows certain ways to challenge settlement agreements in OCGA 9-11-60 and the 2004 lawsuit should have been challenged within 30 days of the issuance of the decision; saying that the petitioners cannot circumvent law by challenging the November 14, 2014 order based on the 2004 approval. Brent Pike LLC further states that the Writ of Mandamus only compels public officials to make a decision and does not change a decision based on OCGA 9-6-20.
Supplemental Brief in Support of City's Motion to Dismiss
This was filed on February 24, 2015 by the City and stated that the only way to challenge a final judgment on a case is through OCGA 9-11-60 as was argued in Brent Pike LLC's Motion to Dismiss that was filed on February 17, 2015.
Response to Opposition to Non-Party Brent Pike LLC's Motion to Intervene
The petitioners challenged Brent Pike LLC's Motion to Intervene on March 4, 2015 and argued that Brent Pike LLC's interests are already adequately represented by existing parties. They also argued that because approval of the development was illegal and in violation of the Zoning Ordinance, Brent Pike LLC has no rights related to the property because the land was already PRD when it was purchased in 2008 and subject to the PRD Zoning requirements in place at the time of purchase.
Brent Pike's Reply to Petitioners: Response in Opposition to Brent Pike's Motion to Intervene
Brent Pike LLC argues that it is not aware of any Georgia decision denying the right of a party to intervene on March 27, 2015. It also states that record shows that Brent Pike LLC has a "final binding judgment" from the Court on the very same housing development that the plaintiffs are challenging. Brent Pike LLC argues that the City will only be representing its own interests in the lawsuit--not those of Brent Pike LLC--and points out that the City has filed with the Court that it has no opposition to Brent Pike LLC joining this lawsuit.
Judge Mack Crawford Recuses Himself from the Case
On April 10, 2015, Judge Mack Crawford recused himself from this case due in part to past representation of some of the parties while in private practice.
Closing
On September 4, 2015 at 9 a.m. the parties appeared before Judge Tommy Hankinson for oral arguments on Brent Pike LLC's Motion to Intervene, the City's Motion to Dismiss, and Brent Pike's Motion to Dismiss described at length in the article above entitled BREAKING NEWS: James Quick vs. The City of Zebulon Postponed for a New Judge and Court Date.
This is a summary of all documents filed through April 10, 2015 on the case and discussed in Court to date. The case has been assigned to three judges in our judicial district. All have recused themselves from this case. At this time, the case is in the process of being assigned to a senior judge from another circuit.
[Note from the Editor: I've spent many, many hours reading court documents, and this is the conclusion of the article based on a one inch stack of documents that the court has compiled on this case since I reported specifics back in October of 2015. Thank you to all who made a donation to help pay for the court documents that cost $73 to print and a whole lot of time to analyze and write up!
These articles went out as Breaking News alerts to those who have made a $25 donation per year to receive them. Click here if you would like information on receiving Breaking News Alerts. Thank you for reading and thank you for supporting Pike County Times!]
By Editor Becky Watts
ZEBULON - Zebulon City Council approved a plan for 450 housing units on 335 acres off of Hughley Road during its August meeting. Since that time, an appeal has been filed in Pike Superior Court. While the discussion of this topic can be made to sound very simple, it goes back to 1999, and it is much more complicated than it appears. Arguments are presented both for and against this development along with a timeline that begins in 1999 and runs through 2014.
Short History of the Development
According to a multi-page chronology on this property provided to the City of Zebulon by the attorney for the developer, the annexation process from the county into the City of Zebulon began in 1999 with the annexation of property taking place in early 2000 as a Planned Residential Development (PRD) that would allow mixed residential uses with a density of up to 8 units per acre. Discussion on sewer and a development site plan continued through 2001 and 2002 with an initial approval of the site plan from the Zebulon Planning Commission that was retracted in 2003. No workshops or hearings are held in 2003 though the proposed development plan was placed on the City Planning Commission’s agenda with no action being taken at the December 2003 meeting. Discussions about sewer were ongoing during this time.
In 2004, the City of Zebulon proposed revisions to its PRD ordinance to eliminate all residential uses other than single family dwellings and made a requirement of one dwelling per one acre. Objections to the new proposed PRD regulations were made by the developer including a letter stating that the reduction in density constituted a “taking” of property. The City adopted the revised PRD zoning regulations in June 2004. A series of letters and discussion concurred in July of 2004 that the property would be governed by the prior PRD ordinance rather than the new regulations. Discussions and meetings began again on this project.
On September 14, 2004, the City of Zebulon approved a concept development plan for approximately 267.73 acres of land now owned by current owner Brent Pike, LLC with seven conditions including provisions on sewer service and the submission of submission and approval of site plans based on the PRD ordinance that had been in effect prior to June of 2004. Workshops began on sewer with the City conducting a review capacity of its existing sewer treatment facilities to accommodate the approved site plan for this development in November of 2004.
More discussion, letters, and meetings about sewer and waste water treatment plan--as well as the City’s desire to own whatever was installed--took place over 2005 with the City conducting public hearings on its sewer expansion in late 2006. An additional fourteen acres was annexed by the City in 2007, right-of-way was given as Hughley Road was redesigned to serve the new Middle School in 2008, and construction plans for Phase I of the development were given to the City in mid-2008. However, on June 30, 2008, the developer was advised that the approval of this plan was expired according to Section 504.24 of the 2004 PRD zoning ordinance. This section states that if the development “is not commenced within 24 months of the date of the approval site development plan, the approval hereof shall become null and void…” and that limit is 18 months after the completing of each stage of development if a plan is being permitted in stages. Construction is defined as “substantial site improvement” including “active and continuous road improvement, excavation, grading and leveling, installation of utilities, and the like.”
After several months of letters back and forth, the developer was informed in October of 2008 that the zoning had not expired but the concept plan had and that needed to be resubmitted. 2009 saw a resubmission of a new draft Development Agreement and sewer plans and a lawsuit filed against the City of Zebulon by the developer regarding the 355.48 total acres with 267.73 acres that were part of the concept development plan.
A new plan was sent to the City in January of 2010 with 450 lots. A meeting was held in May of 2010 with Bert Watson and Mayor Mike Beres requesting a letter acknowledging the reduction in building density, finalization of the Development Agreement and settlement of the lawsuit, and options on sewer for the development. More discussion and meetings throughout the remainder of 2010 and 2011 with a new phased plan and a new Development Agreement given to the City in August of 2011. A Planning and Zoning meeting was held on the development on July 12, 2012 with subsequent meetings regarding water and sewer for the development. Another meeting was held in 2013 along with a meeting with the Mayor in early 2014 and a Planning and Zoning meeting on April 1, 2014. Click here to read through this timeline document.
Minutes from the September 14, 2004 City of Zebulon Council meeting show approval of the proposed PRD development “upon the submission and approval of any required site plans, preliminary and final, that shall be submitted in accordance with the provisions and requirements of the City’s ordinance prior to the revisions of June, 2004, including Section 504.11.” Click here to see this document. The Hughley Road project was approved in August of 2014 in a unanimous vote.
Argument Against the Development
Former Zebulon Mayor Bobby Blalock is one of thirteen plaintiffs who have filed an appeal to the City of Zebulon’s decision to allow this development. These plaintiffs allege that this development is being allowed to deviate from the Zoning Ordinance of the City of Zebulon. Blalock was a part of the Zebulon Planning and Zoning Commission that recommended denial of the development. He resigned when City Council did not follow the recommendations of the Planning and Zoning commission.
The lawsuit cites the city’s current zoning ordinance that was passed in 2004 and limits the development of a subdivision to a minimum of one acre lots that are a minimum of heated square footage of 1,850 square feet. It also states that the City of Zebulon gave preliminary approval of a conceptual site plan in September of 2004 with specific conditions including: “a staggered plan for construction, review of the design of all proposed residences, elimination of all commercial construction included in the plan, approval of certain road accesses to the property which had not yet been obtained, substantial sewage construction work to be built at the expense of Parkways Development LLC (the owner at that time) and completion of a Regional Impact Review Study to be provided to the Mayor and Council prior to final approval of the development.” The property was acquired by Brent Pike LLC in 2008.
The plaintiffs in this case argue that the conditional approval of a ten year old site plan for a former owner “is not a legal basis for a variance from the current Zoning Ordinance,” that the decision of a prior City Council does not bind the current City Council, that the developer did not fulfill the conditions placed upon the development in a timely manner, and that the current plan does not meet the requirements of the current zoning ordinance so it cannot be approved without getting a variance.
[Note from the Editor: A. Lee Parks, Jr. attorney in the case against the City of Zebulon, was contacted for comment but did not return my phone call.]
Argument In Favor of the Development
Newton Galloway, attorney for Brent Pike LLC, addressed the City of Zebulon and opponents to this proposed residential development in a letter dated August 12, 2014. In it, he responds specifically to three points raised by the opposition in regard to this development. The first point to be addressed is the statement that “[t]he new proposed concept plan for the Subject Property should not be approved because of the passage of time and the alleged abandonment of the project over that period.” Galloway answers this by saying that the timeline mentioned and linked above shows that “the project was never abandoned” and has been the subject of discussions and review by the City since 1999. He argues that the owner of the property has worked with the City on development of the property and even initiated legal action to protect property rights and investment value.
Galloway addresses concerns about zoning by pointing out that the property was annexed into the City in 2000 as a PRD with the City being fully aware of the development plan “that would comply with the existing provisions of the PRD” and that density has “consistently decreased” with the conceptual site plan for the property being approved with conditions on September 14, 2004. He states that in 2000 when the property was first annexed, PRD zoning would have allowed up to eight units per acre for a total of up to 2,136 residential lots with an original development plan that called for 567 lots.
Litigation only began, according to this letter, when “good faith efforts to comply with the development conditions imposed by the City were ignored.” The owners allege that the City did not approve the required sewer system was developed at their own expense. The litigation entitled Brent Pike, LLC vs. City of Zebulon, Georgia and Kathleen Birney, Civil Action No. 2009-cv-364 is still pending in Pike County Superior Court. Galloway stressed in the letter that the PRD development plan for 567 residential lots was approved by the City of Zebulon on December 31, 2002 and was initially approved by the Zebulon Planning Commission on January 21, 2003 though the approval was later retracted and a recommendation for denial was then presented.
Newton Galloway gave the following statement on the Hughley Road project: “This has been in litigation for 5 years and the purpose of the development agreement was to reach a compromise on the litigation. The city’s goal was to get compliance with their current ordinance and that requires one acre lots. The development agreement will require three-quarter acre lots. So, the development proposed is very close to the current development standard even though the development was conditioned years ago to comply with the old development standard which would have allowed eight lots per acre. They made a reasonable decision to approve a plan that nearly complies with the current development standards and you cannot assume that the property will lie undeveloped into perpetuity.”
Closing
The Hughley Road project was approved with a unanimous vote for 450 lots total including single and multi-family dwellings in the August 2014 City of Zebulon Council meeting. According to the minutes from this meeting, City Attorney Rob Morton clarified that the 450 count will include all housing units—and not lots—and that this number will include both single and multi-family units. The minutes lay out specific conditions upon the approval and a Settlement Development Agreement has been submitted to the City for discussion and, after both sides agree on all terms, signature by the current Zebulon City Council. Click here to read a DRAFT Settlement and Development Agreement.
A Special Called Meeting of the City Council of Zebulon was held on Friday, September 19, 2014 with Mayor Mike Beres, Councilmen David Woods, Dewey Yarbrough, William Thomas, and Joe Walter present along with City Attorneys Rob Morton and Tom Morton and City Clerk Teresa Watson. A 4-0 decision was reached after Executive Session that was announced to the public and noted in their minutes. The City of Zebulon made the decision to work with the firm of Freeman, Mathis, and Gary in the response to litigation filed in Superior Court of Pike County by James Quick, Robert Blalock, Bobby Blount, Shane and Tiffany Bean, Joe Hudson, Ray Hughley, Betty Hughley, J.R. Childs, Douglas Lynch, James and Rebecca Pryor, and Stanley Boyt v. City of Zebulon and City of Zebulon City Council.
Those fighting the development met at the Zebulon on September 18, in Concord on September 25 and in Molena on October 9th. The Pike County Concerned Citizens Council is asking citizens to attend meetings and voice their concerns. The next meeting will be held tonight at the walking track in Williamson under the pavilion at 6:30 p.m.
Added 10.14.14: Pike County Concerned Citizens Council is a non-profit group dedicated to fighting this development. James Quick and Bobby Blalock are the co-chairmen of this organization. They are raising funds to help fight the development with the help of their attorney. The group has 271 members with 27 individual donations from $50 up through $1,000 going toward a projected total of $15,000 at this point. Mr. Quick advised today by phone that the cost could be more depending on how the court case goes. Find out more about them on Facebook.
Added 10.8.14: Click here to read a list of the mayors and council members from 1999 through 2014. Added 10:15.15: This list is now typed out below for quick reference.
City of Zebulon Elected Officials
1999: Mayor Larry Lynch. Council: Mike Beres, Dewey Yarbrough, Benny Eppinger, David Woods
2000: Mayor Larry Lynch. Council: Mike Beres, Dewey Yarbrough, Benny Eppinger, David Woods
2001: Mayor Larry Lynch. Council: Bobby Blalock, Mike Beres, Benny Eppinger, David Woods
2002: Mayor Larry Lynch. Council: Bobby Blalock, Mike Beres, Ronnie Owens, David Woods
2003: Mayor Larry Lynch. Council: Bobby Blalock, Mike Beres, Ronnie Owens, David Woods
2004: Mayor Bobby Blalock. Council: Harry Rawlins, Dewey Yarbrough, William Thomas, David Woods
2005: Mayor Bobby Blalock. Council: Harry Rawlins, Dewey Yarbrough, William Thomas, David Woods
2006: Mayor Bobby Blalock. Council: Harry Rawlins, Dewey Yarbrough, William Thomas, David Woods
2007: Mayor Bobby Blalock. Council: Harry Rawlins, Dewey Yarbrough, William Thomas, David Woods
2008: Mayor Mike Beres. Council: Harry Rawlins, Dewey Yarbrough, William Thomas, David Woods
2009: Mayor Mike Beres. Council: Harry Rawlins, Dewey Yarbrough, William Thomas, David Woods
2010: Mayor Mike Beres. Council: Rick O'Barr, Dewey Yarbrough, William Thomas, David Woods
2011: Mayor Mike Beres. Council: Rick O'Barr, Dewey Yarbrough, William Thomas, David Woods
2012: Mayor Mike Beres. Council: Rick O'Barr, Dewey Yarbrough, William Thomas, David Woods
2013: Mayor Mike Beres. Council: Rick O'Barr, Dewey Yarbrough, William Thomas, David Woods
2014: Mayor Mike Beres. Council: Joe Walter, Dewey Yarbrough, William Thomas, David Woods
2015: Mayor Mike Beres. Council: Joe Walter, Dewey Yarbrough, William Thomas, David Woods
2016: Mayor Bobby Blalock. Council: Joe Walter, Dewey Yarbrough, William Thomas, David Woods