Attorney Asks That Developer Be Allowed To Proceed With Shops At Wells Cemetery Site

Benson Proposes 52 New Trees For Buffer Area

Tuesday, December 8, 2009

Attorney Jack Benson Jr. is asking county officials to lift a stop work order at a planned Ooltewah commercial site where there was a controversy about moving a cemetery and cutting trees in a buffer area.

Attorney Benson said a recent order from the county building inspector only allowed a Texas developer to secure the open graves at the pioneer Wells Cemetery. He said the Shops at Mountain Creek project remains stymied.

He said the group plans to appeal to the County Commission at its meeting on Thursday, noting that six full work days will have been missed by then.

The project at Snow Hill Road and Mountain View Road was halted after issues were raised about moving the remains from the cemetery and cutting trees in a planned buffer area by the Mill Run subdivision.

Attorney Benson said the developer had no way of knowing about the zoning condition mandating the buffer area, where it is planned to relocate the cemetery.

He said county employees failed to convey word about that condition and recently approved a grading plan that included moving the cemetery to the buffer area and cutting some trees.

Attorney Benson said the buffer area was not stripped, but a number of trees were left according to plan. He said approximately 32 "mostly scrub" trees were cut. He said it is proposed to put in 24 pine trees and 28 shade trees in the buffer area.

He stated in a letter to County Attorney Rheubin Taylor, "The vast majority of the buffer area was not disturbed in any manner."

He said the moving of the remains is being handled by a qualified archaeologist. He said there were few markers at the cemetery and "most of the graves could not be seen by the human eye while actually walking through the cemetery."

He noted that permission was gained through Chancery Court this summer to move the cemetery.

He said the developer "continues to incur substantial cost each day that the stop work order continues."

Here is the letter from attorney Benson:

Reuben Taylor

Room 204 Courthouse

Chattanooga, TN 37402

RE: Shoppes at Mountain View Road Stop Work Order (the “Order)

Dear Reuben:

Confirming our telephone conversation last week, I represent the project currently being conducted at the above referenced property and its investors. My clients have and will continue to incur substantial costs every day they are prevented from working pursuant to the Stop Work Order issued by Hamilton County Commission on December 2, 2009. The Order resulted from my client removing some trees in a buffer zone required by a 2002 zoning resolution that was never properly nor legally filed. We are currently scheduled to attend the agenda meeting on Thursday, December 10, 2009 at 9:30 a.m. By that time, approximately six (6) full work days will have been missed.

Although there are several issues involved with the removal of the trees, we respectfully point out (i) that the removal of the trees was authorized by Hamilton County after my client submitted their grading plan which was accepted by Hamilton County, and (ii) my client has at all times acted in good faith pursuant to lawfully issued permits. We, therefore, request that the Order be rescinded on the following terms and for the following reasons:

First, based upon our investigation, zoning resolutions by the Commission are not filed with the Registrar’s Office to give the appropriate legal notice. Multiple title checks were conducted by my client prior to grading and none revealed the requirement of a buffer zone. Also, the County staff had every opportunity to prevent this oversight as they reviewed and discussed the plans with the project engineer. Hamilton County approved and permitted the relocation of the cemetery and grading plan which clearly showed which areas were to be disturbed (See attached Exhibit 1). I also enclose an aerial photo which will assist in determining how few trees were actually removed (See attached Exhibit 2).

Secondly, the vast majority of the buffer area has not been disturbed in any manner and the plans did not provide for the removal of any trees or disturbance of the area close to the creek where the vast majority of the buffer exists. This area will not be disturbed.

Third, concerning the grave relocations, it should be pointed out that it has been done in the most dignified, proper and strictly legal manner. As you are well aware, my client was granted approval by Chancery Court to relocate graves to part of the wooded area after the appropriate notice was published for all potential relatives pursuant to state and local laws. Previously, most of the graves could not be seen with the human eye even while actually walking through the cemetery. Unfortunately, many of the headstones simply looked like rocks due to natural decay. My client has hired an archeological team that literally removes the dirt by hand after the top level is initially graded. Each and every grave is placed in a metal box that will be reburied and enclosed within a natural area surrounded by an iron gate where relatives may choose to visit.

In an effort to resolve this matter completely, my client submits the following plan to provide for 24 pine and 28 shade trees where approximately 32 trees, mostly scrub, were removed (See attached Exhibit 3). These trees would be much thicker and provide more density and screening for the surrounding neighbors than did the removed trees. The closest home to the closest corner of the property is approximately 650 feet. Accordingly, the new trees and buffer will be a significant improvement for the neighbors.

This letter is being submitted as an offer of compromise and my client requests some response today. With best regards,
Yours Truly,

Jack Benson, Jr.

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