The fate of Walden developer/landowner/attorney John Anderson’s latest skirmish in his long battle to develop a large tract of land in the heart of Walden as a nominal village center – despite the fact that it does not conform to the definition of“village center” spelled out in the town’s zoning ordinance – is now in the hands of a Bradley County circuit court judge.
The development, which would be located on the former Lines Orchids site, would contain a 43,000-square-foot grocery store, 10,000 square feet of retail and/or office space, a gas station and a parking lot for 220 vehicles.
Judge J.
Michael Sharp is expected to rule soon in “Anthony et al v. Town of Walden and LOP, LLC,” a lawsuit which contends that Anderson’s proposed grocery store/fuel center/office complex does not qualify for VC-1 zoning.
In the lawsuit, plaintiffs contend that former Mayor Bill Trohanis and Alderwoman Sarah McKenzie erred when they voted in 2019 to approve the VC-1 rezoning request, despite the fact that the project fails to include five of the six required components. For example, they point out, as proposed the development includes neither residential properties nor an internal network of streets, both of which are mandatory in a village center.
Last week, attorney/developer Anderson outlined his justifications for the controversial rezoning in a 10-page summary brief submitted to Judge Sharp.
In his summary, he argued that the actions taken by the former mayor and alderwoman were rational because both publicly outlined their reasons for voting as they did.
“The petitioners may not think these are good reasons,” attorney Anderson told the judge, “but they are (their) reasons. The court should not look to the intrinsic correctness of the decision, but whether it is rationally based.”
Further, the developer/landowner/attorney contended, the courts have no business second-guessing local officials’ zoning decisions.
“Zoning is a legislative matter and as a general proposition the exercise of the zoning power should not be subjected to judicial interference unless clearly necessary,” he wrote. “In enacting or amending zoning legislation, a court cannot substitute its judgment for that of a local governing body in cases where the zoning ordinance is fairly debatable.”
Plaintiff’s attorney Donald Aho responded in a final brief of his own, “Respondent LOP, LLC asserts that a zoning decision must be upheld where it was ‘fairly debatable’ or where there was any ‘rational basis’ for the decision – whether or not it violates statutes or ordinances,” attorney Aho noted.
“This is not the law, ”he declared. “There are no ‘fairly debatable’ or ‘rational basis’ exceptions to the rule that the town was required to follow the law.”
Further, attorney Aho continued, the town of Walden also failed to comply with a variety of mandatory procedural safeguards designed to protect the community.
For example, he noted, the former mayor and alderwoman failed to adopt regional planning commission-recommended amendments to the proposed VC-1 rezoning request.
“There is no question that the board’s modifications from the two-page RPC’s Aug. 12, 2019 resolution and recommendation to the final seven-page Ordinance 331 were substantial,” attorney Aho wrote. “. . . (T)he board modified three of the RPC’s five conditions, added 18 new conditions, and added an entirely new section, Section 5."
Consequently, he said, “Those opposed to ordinance 331 – those who want a true village center – are certainly detrimentally affected by this change. Instead of getting a centrally located open space, they get an unpermitted use: a parking lot in the middle of the development, with the public green space located behind the grocery store building.”