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Judges dismisses counts in Foster St. suit

Tia Lynn Ivey News

Foster Park, a 19-house subdivision set to be build behind the historic Foster-Thomason-Miller house in Madison, remains in limbo as Historic District Residents appeal the Madison Mayor and City Council’s controversial vote to approve a rezoning of the property to allow for the housing development.

“Every thing is at a stand still until this case is resolved,” said James Carter, city attorney.

However, a new ruling from the Morgan County Superior Court may indicate good news for the City of Madison and Developer Brad Good. Judge Amanda Petty has dismissed three out of the four counts filed by the plaintiffs.

“The City is pleased with the judge’s ruling,” said Carter.

According to Petty’s ruling, issued on September 6, she ruled in favor of the City’s motions for dismissal except on one count.

“It is hereby ordered that the City Respondents’ Motion to Dismiss is hereby granted as to all claims except for the claim for writ of certiorari,” wrote Petty in the ruling. Writ of Certiorari grants the petitioners the right to present their case in front of a higher ruling authority, in this case, the Morgan County Superior Court, to challenge the validity of the council’s decision to approve the rezoning of the Foster-Thomason-Miller property.

Judge Petty also ruled the petitioners’ case must be confined to the record of proceedings conducted by the City of Madison concerning the rezoning for the historic Foster-Thomason Miller property. This decision prevents the petitions from seeking additional depositions and discoveries for the case, according to Carter.

“The Court further finds that the standard of review in writ of certiorari is ‘whether the decision below is supported by any evidence,’ wrote Petty.  “Since the issue of standing was not raised in the hearing before City Council, then it cannot be raised in this proceeding.”

According to Carter, this renders the petitioners’ request for additional discoveries irrelevant.

“What this means is that the record from the city hearings are the only records that court is going to consider. Therefore, the plaintiffs’ motion for discovery is rendered moot,” said Carter. “Furthermore, if any evidence is presented from the record to support the council’s decision, the court will affirm it.”

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. The group is now being represented by Athens-based attorneys, David Ellison and Michael Broun. Ellison and Broun did not return the Morgan County Citizen’s requests for comment by press time on Tuesday, Sept. 11. 

“In my opinion, the record in this case is replete with evidence to support what the city did,” said Carter.

Residents of the Historic District in Madison filed the appeal suit with the Superior Court of Morgan County earlier this year 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. The lawsuit claims the vote was unconstitutional and also alleges Councilman Joe DiLetto demonstrated bias throughout the proceedings.

In March, the city council, with the Mayor Fred Perriman as the tie-breaker, 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 to build houses upon the previous Residential 2 (R2) zoning designation.

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 refused to change course, standing by the vote and its legality.

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.

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 overall, and to those nearby more significantly. This property not only contains a protected waterway, but it is a 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 others 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 10 rights of the petitioners were violated throughout the rezoning public hearing process.

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