Stock Gavel

MILTON, Ga. — Milton has claimed victory in a legal fight with a developer who sought to rezone a 47 acres along Hopewell Road to build a residential neighborhood with higher density than is currently allowed.

The applicant for the rezoning, Kai Chaing Su Dynasty, had requested to rezone the property, located between the Vickery Crest and Brookshade subdivisions, to develop 73 homes, about 50 percent more than what is currently permitted. The applicant first presented the proposal in 2018 and met immediate pushback from the city and nearby residents.

According to a statement from the city, the Fulton County Superior Court dismissed most of the Kai Chiang Su Dynasty Trust’s claims in a November 2019 ruling. The Trust appealed the decision, and the Georgia Supreme Court denied the appeal on two occasions — in 2019 and late last year.

In the city’s statement, Milton City Attorney Ken Jarrard said the owners of the property had failed to assert valid claims against the city.

“Although the [state Supreme] Court never examined the merits of the case, we are confident that the City’s clear plans for the future development of the property, as reflected in its Comprehensive Plan, would have provided immensely valuable support for the City’s decision to deny the rezoning request,” Jarrard said in the statement.  “Challenges to decisions made in compliance with an existing, approved Comprehensive Plan are rarely successful.”

Jarrard told the Herald the matter is “final” because the state’s Supreme Court declined to hear the appeal of the Fulton Superior Court’s dismissal of the bulk of the claims made. The Supreme Court did not explain its decision, he added.

“The lawsuit is over,” Jarrard said. “The property owner will, of course, continue to have the right to use their property, and, subject to certain time constraints, the right to approach the City again. However, the litigation brought by the property owner is resolved.”

The rezoning application faced an uphill battle from the outset, and representatives of the owners stayed true to their threat early in the process they would seek litigation if it was denied.

When the proposal was first made public, about 80 nearby residents, mostly from the Vickery Creek and Brookshade subdivisions, packed City Hall during a Community Zoning Information Meeting to speak out against the plan.

They listed a myriad of complaints, including increased traffic, a drop in their home values, the density of the proposed development and mismatched lot sizes between the neighboring subdivisions. Other issues lodged included most of the homes would only be accessible through existing neighborhoods, and the site plan lacked adequate buffers.  

The city was also in opposition. Staff recommended denial, citing the property is designated for 1-acre minimum lots under its current zoning and in the city’s future land use map. The plan also called for sewer service.

A representative from the owners argued that the zoning requirement of 1-acre lot minimums made the site a “doughnut hole” among surrounding developments which had higher densities and were connected to sewer service.

In its initial suit, the owner said denying the connection to Fulton County sewer was discriminatory given the surrounding properties are serviced by the system. It also alleged the rezoning was necessary because the petitioners “cannot economically or feasibly develop or sell the property with the existing zoning and sewer restrictions in place.”

After the rezoning was first presented to residents, the applicants requested to defer its presentation to the Planning Commission, but the board had seen enough and voted 5-2 to deny the deferral and move forward with its recommendation to deny the project.

During that meeting, an attorney representing the applicant warned litigation would follow a denial by the Milton City Council. That scenario played out in November 2018 after the council voted unanimously to deny the rezoning.

In a statement on Milton’s court win, Mayor Joe Lockwood touted the city’s comprehensive plan and other land-use policies.

“Our citizens spoke during the comprehensive planning process, and again when this rezoning application was presented,” Lockwood said. “We’re glad that our combined efforts, coupled with exceptional legal representation, led to the desired outcome.”

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