By DAVE HAMRICK
Staff Writer

Developer Stan Thomas has filed suit against the city of Fayetteville to get restaurant zoning restored on a 3.18-acre tract next to Fayette Pavilion.

Relations between the city and Fayette's largest commercial developer have been deteriorating in recent months.

Thomas had to obtain permits to build a private sewer system for the third phase of the Pavilion after the city declined to annex the project into city limits, as it had done with the first two phases. Mayor Mike Wheat called for offices on the site, but the Sharpsburg developer said offices would be a money loser, and has continued to develop the property in big box retail outlets, but outside the city.

City Council's recent reversion of the zoning, returning it to a residential category from the commercial zoning granted a year ago, is “unconstitutional, null and void,” according to the suit filed Dec. 14, because it “denies plaintiff due process and destroys plaintiff's property rights without first paying fair, adequate and just compensation for such rights.”

Thomas' lawyer, John W. Harbin, said he believes the city's reversion of the zoning is unconstitutional on its face, because the land is not suited to residential zoning. “It doesn't make sense to make it R-40 or anything like that,” he said.

City attorney David Winkle could not be reached for comment on the suit.

City Council rezoned the property in January 1998, with the condition that a road be built through the land to provide better access for cars going south on Ga. Highway 85 from the Pavilion. At the time, Thomas said he planned to build two restaurants on the land.

After the March 16, 1999 deadline for construction of the road came and went, the council Nov. 8 voted to revert the zoning from C-3 commercial to its former R-40 residential category.

This is the second time the rezoning has been granted and then rescinded. In October 1996, council granted a change to C-3 commercial zoning, with the same condition calling for a road connecting the property to Hwy. 85.

After the developer failed to build the road within the specified time, the zoning reverted, and council again granted the rezoning, with the same stipulation, in January 1998.

But Thomas' lawsuit states that Thomas “has submitted plans for the construction of the access road connecting the property with Hwy. 85. The plans conformed to the provisions of the zoning chapter, the city building codes and other ordinances of the city.”

According to the suit, city planner Maurice Ungaro “refused to approve any plans submitted.”

The suit asks that a Fayette Superior Court judge declare the reversion unconstitutional per se, and also declare it unconstitutional because Thomas submitted plans that conform to city ordinances. Furthermore, it alleges that the city did not give Thomas sufficient notice before the council voted to revert the zoning, and asks for a declaration that the reversion “without proper notice is in violation of the Zoning Procedures Law.”

Thomas' suit also asks that the city pay his legal costs involved, and that the court declare the current zoning to be C-3, declare that the plans the developer submitted for the road comply with city ordinances, and direct Ungaro to approve the building plan and issue a permit for the road.

The city has up to 30 days from the Dec. 14 filing date to formally answer the suit. Depositions and hearings can then be scheduled.