Land grading begins despite legal battle

August 10, 2005
By Merritt Melancon

Although work crews have already started to turn a 94-acre tract of land sandwiched between Union Church and Whippoorwill roads into the home sites for the 150-house development called Coldwater Creek, one group of Oconee County citizens is continuing its legal battle to void last September's rezoning of the parcel.

In October 2004, a group of Oconee County citizens, Citizens for Ethical Government, and five individuals who owned property on Whippoorwill Road sued the Oconee County Commission and Thomas Orchards, the development company behind Coldwater Creek, to reverse the commission's Sept. 7 rezoning.

According to Ernie DePascale, the attorney representing the citizens, the county commission failed to hold a public hearing on the rezoning, as required under Georgia law and the local ordinance. The commission's vote on the rezoning and the public hearing was originally scheduled and advertised for Aug. 3, 2004, but it was postponed until the commission's September meeting at the request of the developers.

The fact there was no legal advertisement notifying the public of the rescheduled public hearing makes the commissions' vote following that hearing invalid, DePascale contends.
But on July 13, Superior Court Judge David Sweat issued a summary judgment siding with the county, saying that a public hearing held before the Oconee County Planning Commission on July 3, 2004, fulfilled the county's obligation to hold an advertised hearing.

"And that's fine, but that's not what was meant by the Georgia legislature," DePascale said.

Why hold a public hearing in front of a group whose actions don't mean anything? "

The planning commission serves the county commission in an advisory capacity and does not actually approve or deny rezoning requests. The planning commission voted to recommend that the county commission deny the rezoning request, though county commissioners voted to approve it.

DePascale believes Georgia's law requires an advertised public hearing before a legal vote can take place, and he and his clients plan to petition the Georgia Supreme Court to hear their appeal of Sweat's decision.

But at this point, there's some uncertainty as to what would happen to the 94 acres of graded land if the appeal is successful and the rezoning is nullified - since it already has been graded.
"It's going to be complicated, " DePascale said.