Lawsuit filed over Greentop rezoning denial
by Sarah Fay Campbell
Coweta is being sued over the denial of a rezoning for property on Greentop Road.
The suit is being filed by NCTI LLC against Coweta County, the Coweta County Board of Commissioners, and the individual commissioners.
On June 4, commissioners voted unanimously to deny rezoning for the 120-acre property, located adjacent to the Heritage Hills and Lake Hills subdivisions.
Jim Mottola spoke as the applicant at the hearings. The request was to zone the property to the county’s medium density infill zoning, R1-B. The zoning allows up to three units per acre with certain density bonuses, and requires public sewer. Plans were to build approximately 226 homes on the property.
A large number of nearby residents attended the May 21 hearing in opposition. The hearing was continued to June 4 because of the absence of a county commissioner. Applicants have the right to be heard before the full commission, and Mottola requested the vote be taken by all five commissioners.
“We will defend the lawsuit but we will explore settlement options to avoid protracted litigation,” said Nathan Lee, attorney for Coweta County.
Though the property is not shown as medium density residential on Coweta’s future land use map, the Coweta Planning and Zoning Department recommended approval. Only 49 homes could be built, however, until a second entrance was opened.
The suit was filed June 19 in Coweta County Superior Court, and the county filed its acknowledgement of service the same day. The county has 30 days to answer the complaint.
On June 17, the commissioners voted to put a moratorium in place on any new applications for R1-B zoning. The moratorium is set to expire on Aug. 19.
The plaintiffs allege that by refusing to approve the plaintiff’s application for rezoning, the defendants acted arbitrarily and capriciously, grossly abused their discretion, and violated duties under the Official Code of Ordinances of Coweta County, the laws of the state of Georgia, the Constitution of the state of Georgia and the Constitution of the United States.
In the suit, the plaintiffs include a traffic study dated May 16, and a “Highest and Best Use Study” dated May 30.
The traffic study indicates that upon building the development, there will continue to be “excellent operations” at the Greentop Road/Old Greentop Road intersection, “with no deterioration in levels of service.” Only the entrance to the development and the intersection of Greentop and Old Greentop were included in the study.
According to the consultants of the highest and best use study, the RI-B zoning represents the ideal improvement of the 120-acre tract.
That study compared the current Rural Conservation zoning and the proposed RI-B, and did not consider the low-density infill zoning, RI-A. The property is shown as low-density infill on the county’s future development map.
Those opposing the rezoning didn’t provide any expert testimony to refute either study at the public hearing, according to the suit.
Instead, the plaintiffs allege that any evidence received at the hearing was “simply ipse dixit” and that ipse dixit “evidence is not credible.”
Ipse Dixit is defined as “an unsupported statement that rests solely on the authority of the individual who makes it.”
“Without any discussion or explanation and notwithstanding the recommendations of the zoning department, the board of commissioners voted to deny the rezoning petition,” stated the plantiffs. “Although some of the adjacent and surrounding property owners incorrectly represented that all of the adjacent and surrounding property owners had objected to the two points of interconnectivity, there was no evidence in the record to support those statements.”
According to the suit, the commissioners denied the petition in its entirety, refusing to alter the zoning classification of the property and there is no evidence that the rezoning petition will adversely affect the existing use or usability of adjacent or nearby properties.
The plaintiffs allege that the denial of the rezoning results in a significant detriment to plaintiff, creates no benefit to the public and has no relationship to the protection of the public health, safety and welfare of the citizens of Coweta County and the denial of the petition has no relationship to the weighing of the gain to the public as compared to the hardship imposed upon the plaintiff.