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Fate of Foster Park on the line

Tia Lynn Ivey News

A lawsuit appealing the City of Madison’s controversial zoning vote to accommodate a housing development behind the Historic Foster-Thomason-Miller House on Main Street went before a Morgan County Superior Court Judge last week. Judge Amanda Petty is anticipated to make a ruling in coming weeks after she reviews proposed rulings submitted by the plaintiffs and defendants in the case.

The lawsuit was launched by a group of Madison’s Historic District residents alleging the City of Madison did not follow proper public hearing procedures before narrowly voting to rezone the property to an Residential 4 zoning designation, which reduced the lot sizes required for each house. The lawsuit also alleges that City Councilman Joe DiLetto exhibited bias toward Historic District residents throughout the approval process. The residents also named Developer Brad Good who is aiming to build Foster Park, a 19-house subdivision, Friesen Real Estate Holdings, and Robert Wayne Lamar in the lawsuit. Judge Petty heard arguments from attorneys representing the city, Good, and the Historic District residents last Wednesday in a lengthy hearing.

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.

According to Broun, the residents are asking Judge Petty to overrule the City of Madison’s rezoning of the 10.36 acres on the Foster-Thomason-Miller property, which would force the City of Madison to redo the entire rezoning and public hearing process before they could vote on matter again.

“We want the matter remanded to the city for a new rezoning process,” said Broun.  “We think the city handled it improperly. If Judge Petty rules in our favor, it would essentially undo the R4 zoning and go back to the city to be handled correctly.  Our clients did not want the R4 zoning. There were other configurations proposed that would have been acceptable, but this lawsuit is more about the process. Our position all along has been about fairness to the community as a whole and city council doings its job properly.”

City Attorney Jim Carter is confident that the Madison Mayor and City Council followed proper rezoning procedures and hopes Judge Petty will rule in their favor.

“Our proposed ruling is that there was no bias, that due process was had as required by law, the petition should be dismissed and that cost should be charged to the petitioners,” said Carter, who believes case law and statutory law is on the side of the city.  “I feel confident that the city was right and I look forward to this court’s ruling.”

Carter noted that even if Judge Petty rules in the City’s favor, if the Historic District Residents appeal her ruling, the fate of Foster Park could return to limbo once again as the case ascends to the Georgia Court of Appeals.

“Until there is a final ruling and the time for appeal has expired, this project cannot move forward,” said Carter.

The proposed Foster Park Project had been debated and revised throughout nearly two years before the council voted in March in a 3-to-2 vote to rezone the Foster-Thomason-Miller property to accommodate the housing development.

The Historic District residents filed a 27-page appeal alleging 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 asserted 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.

“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 earlier this year.

Developer Brad Good’s attorney, Kathy Zickert, also maintained 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 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.

Now it is up to Judge Petty to decide which side will prevail in controversy of the Foster Park housing development.

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