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Council faces Foster lawsuit

Tia Lynn Ivey News

The Foster Park Housing development may return to limbo once again.

Residents of the Historic District in Madison have filed an appeal suit with the Superior Court of Morgan County to challenge the Madison Mayor and City Council’s controversial 3-2 vote to rezone part of the Foster-Thomason-Miller property in order to accommodate a 19-house subdivision called Foster Park.

In March, the city council, with the Mayor Fred Perriman as the tiebreaker, narrowly voted to rezone 10.36 acres behind the historic Foster-Thomason-Miller house to a Residential 4 (R4) designation, which allows for smaller lot sizes than the previous Residential 2 (R2) zoning designation.

Several abutting neighbors have banded together to file an appeal in hopes of halting the project and reversing the rezoning decision.

According to the lawsuit’s petitioners, the 27-page appeal alleges that “the City Council’s decision to rezone the property from R-2 (Residential 2) to R-4 (Residential 4) is arbitrary and without foundation, and ignored the unanimous judgment of the Planning and Zoning Commission and the Historic Preservation Commission. The appeal also asserts that the decision violates the U.S. and Georgia constitutions, the laws of the State of Georgia, the Charter and ordinances of the City of Madison, and the Comprehensive Plan. The appeal alleges further that the decision was fatally flawed through the bias and abuse of discretion of Councilmember Joe DiLetto.  The neighbors ask that the court reverse the rezoning decision.”

But the City of Madison is standing its ground on the matter, according to City Attorney Jim Carter.

“We appreciate the concern of the citizens who brought the appeal. However, we believe the city council is well within the bounds of discretion, as well as within the bounds of the law, in making this decision,” said Carter.

Developer Brad Good’s attorney, Kathy Zickert, maintains the legality of the Foster Park project and approval process.

“I feel very confident that the City Council’s ruling will stand,” said Zickert. “I don’t think this lawsuit holds a whole lot of merit.  These are the same people who supported 19 lots under R2 zoning with variances, but now they are opposing essentially the same plan under R4 with the same 19 lots. It’s a tad inconsistent.”

However, the residents who filed suit believe the city council violated numerous rights of property owners during the public hearing process, approved a rezoning outside of the scope of their authority, and have accused one council member of ethics violations and personal bias. The Historic District residents who filed the suit include Theresa and Dean Bishop, Elizabeth Bell, James Orr, Celia and Walter Murray, Robert and Dena Lanier, and Penelope Foote.

In addition to Madison Mayor Fred Perriman, and the five council members, the appeal suit also names the applicants who requested the rezoning, Friesen Real Estate Holdings, LLC., Developer Brad Good, and Robert Wayne Lamar.

The suit alleges that the rezoning of 622 Foster Street, which will pave the way for a housing development to be built there, will “do significant damage to the integrity of the Historic District over all, and to those nearby more significantly. This property not only contains a protected waterway, but it is an historic pecan grove. A women’s college once occupied the site, and significant archeological artifacts could be at stake.”

The petition claims the reduced lots sizes, down from half-acre minimum to quarter-acre minimums under the new zoning classification, will pave the way for a housing development that is “inappropriate” for the Historic District.

The suit takes aim at Councilman DiLetto, accusing him of “personal bias” and “the intention to use his position of power to turn the community and other against the neighbors contesting the rezoning…”

The suit claims that “the decision of the Mayor and Council to rezone the property at issue constitutes an ultra vires act, is beyond the scope of Mayor and Council’s authority, was entered without jurisdiction, constitutes an abuse of discretion, is arbitrary and capricious, was not supported by substantial, sufficient, or any evidence, and was made in violations of Petitioners’ rights…”

The suit claims at least ten rights of the petitioners were violated throughout the rezoning public hearing process.

The Madison Mayor and City Council, along with the others named in the lawsuit, have 30 days from being served to submit responses to the court.

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