On Thursday, September 16, the Flowery Branch City Council voted to let a controversial warehouse project get one step closer to final approval.
On August 5, I saw one of the hearings for this project myself. There were a lot of people against this, and they were all very vocal.
After that meeting, I listened to a councilwoman speak with a couple who regularly attend the Flowery Branch meetings. They were talking about another case (a townhome community), and the councilwoman pointed out that sometimes these decisions are challenging, because while the public may not like a project, and some council members may not even like it, developers will try to sue in Superior Court if they don't get their way. And, since the council is supposed to be good stewards of the public money, they had to ask themselves if it was worth it to turn something down and get the City caught up in a lawsuit.
It was a real and honest statement, and it made sense to me.
In this September meeting, they voted to approve it because, according to one councilman, "the city could face litigation by arbitrarily turning down rezoning requests."
In the two and a half years that I've been observing the government of Sugar Hill, I've only seen them openly turn something down one time. That one time was when Lidl was trying to build a store close to Emerald Lakes. At the time, Emerald Lakes mounted a pretty good campaign against it and brought in maybe 20-25 people to the meetings, and the project was denied. At the time, I thought the resident pushback made the difference. City Manager Paul Radford later told me that he had wanted the Lidl to build closer to the downtown area. Someone involved with that project (the realtor, if I recall correctly) said something to the effect that the downtown wasn't a good location. Apparently, the City Manager was offended, and said something about never letting them (the realtor) do business in Sugar Hill, seemingly in retaliation.
Everything else that has come up has been rubberstamped by the Planning Commission, then rubberstamped by the City Council. Not only that, they clap over many of these projects like a bunch of trained seals. As such, it seems reasonable to conclude that Sugar Hill has actually never seen a development project it didn't like (as long as no one personally offends the City Manager).
A fair number of applicants for annexation and rezoning seem to be getting attorneys to handle their cases. You can Google "land use and zoning attorneys" and find there are plenty of them out there.
My impression is that the attorneys come in pretty aggressively sometimes. In the case of the rezoning application for the 126-townhomes along Bailey Avenue off of Hwy. 20, the following statement was include in the application packet:
According to this guide from Jenkins, Bowen and Walker, land use attorneys in Cartersville, GA, it looks like the property owners and/or developers had the idea that the rezoning might be turned down and were laying the groundwork for a lawsuit by raising constitutional challenges with the local government.
When the rezoning case came up, I asked Sugar Hill's Planning Director about this in an email, but receieved no response.
Good sense dictates that if you might be sued regarding something specific, you talk to an attorney. You ask if the other side has a legitimate case, and how likely they are to win. Obviously, if they stand a good chance of winning, you get advice about how to avoid the lawsuit.
Good sense further dictates that you ask for specifics about why your case might be weak. After all, if THIS person has a good case, so might lots of other people. You're quite possibly in the position of either losing lawsuits right and left, or being completely at the mercy of every developer out there who can afford to lawyer up and come after you, which is probably all of them.
My impression is that these cities are probably sitting right in the middle of that second situation, at the mercy of the developers.
There are a few good elected officials out there who really would like the option to decline projects that are unpopular or adversely affect the livability of their towns. I've met them. But, I suspect that cities overall, and Sugar Hill specifically, PREFER to be backed into this corner by developers. They want to HAVE to say yes to developments, including the ones that are unpopular with the public but generate lots of tax revenue, while having an excuse to offer an increasingly dissatisfied public.
In the comments by the Flowery Branch councilman, and in the letter from the zoning lawyers above, one word jumped out at me. ARBITRARY.
Zoning and land use decisions are not supposed to be arbitrary. They're supposedly governed by laws and ordinances. The fact that lawyers might have grounds to say that the decisions are arbitrary points to the idea that maybe the ordinances are not as specific as they should be.
For example, one potential issue I have seen concerns traffic studies in Sugar Hill.
According to the rezoning packet provided by the City, "a traffic study is required for a rezoning or special use permit proposal if it is requested by the Planning Director and/or meets the threshold for a Development of Regional Impact (DRI)." The threshold for a DRI is defined by the Department of Community Affairs (DCA) and handled by Atlanta Regional Commission (ARC) and seems to hinge largely on whether it affects other jurisdictions. A lot of what we consider "big" projects in Sugar Hill don't seem to meet the criteria. ARC maintains a plan review database . The only developments I saw in there that had any type of traffic analyses were the Sugar Hill Market Place (office spaces off of Tench Road) and the Sugar Hill Distribution Center (the warehouses off of Peachtree Industrial Blvd just south of the intersection with Hwy. 20). While the Planning Director can request a traffic study for anything else, there are no criteria listed in the rezoning packet, nor could I find them in the Zoning Ordinances.
That IS rather arbitrary. It's not hard to see how it could allow personal politics to enter into the decision-making process. It also seems like it could leave the City vulnerable to a lawsuit from anyone asked to do the study after others have been allowed to forgo it. If there are certain criteria involved in the decision, they should be spelled out clearly for everyone to see.
As the rapid growth of the area continues to be a hot topic of discussion and debate, I'm very curious if the elected officials or City Manager have ever asked the City attorney or any other attorneys to review their zoning policies and ordinances for the explicit purpose of making sure they're specific enough so as not to invite lawsuits over "arbitrary" decisions. If not, that's something that needs to happen. The City needs to get out of any legal corners it may have backed itself into that may be causing them to just rubberstamp everything. There should be a proactive approach to potential rezoning lawsuits rather than a reactive approach.