Judge dismisses suit against Tyrone

Fri, 05/01/2009 - 3:44pm
By: Ben Nelms

The Town of Tyrone seemed to come out on top with the recent ruling in U.S. District Court over a 2007 complaint filed by Dick Shelley over he said were unfair and illegal zoning practices. But Shelley claimed victory, saying Judge Jack T. Camp’s ruling centered on only 1 of the 12 counts. Shelley said the remaining 11 counts are eligible to be heard in state court where the claim originated.

Shelley originally filed the state court suit against the town, its administrative staff, the mayor and council and planning commission over what he maintains was unfair and illegal treatment in zoning and other issues relating to his rental property located at 117-119 Palmetto Tyrone Road.

The 12-count suit alleged that the town violated Shelley’s rights and those of two relatives when a 2004 text amendment to the zoning ordinance deleted all allowable uses in the C-2 (Commercial) zoning district that were previously applicable to his 20,200 square-foot business rental property. The suit stated that the 2004 amendment also grants specific legislative power to the town’s zoning administrator to decide what uses applied to the land. Also at issue was Shelley’s claim that he was, in various ways, caused economic harm, subject to negligent behavior and had his property rights damaged through misrepresentation and deceit. Additionally, the suit claimed civil conspiracy intended to eliminate all lawful businesses and property uses in the downtown area through re-development efforts.

The suit was filed in state court, but was later transferred to federal court.

In his April 6 ruling, Judge Camp said, “Plaintiff (Shelley) filed this action challenging several decisions of the Town of Tyrone and the Tyrone Town Council with regard to zoning and land use. Defendants move for a summary judgment or judgement on the pleadings on Plaintiff’s federal constitutional claims on the grounds that those claims are not ripe for adjudication. The Court finds that Plaintiff does not present a justiciable case or controversy as required for jurisdiction... Accordingly, the Court grants Defendants’ motion for judgment on the pleadings and partial summary judgment and denies Plaintiff’s motion for declaratory judgment. The Court denies as moot the other pending motions.”

Judge Camp dismissed Shelley’s procedural due process claim with prejudice and dismissed the other 11 claims without prejudice.

Commenting on the decision, Shelley said the dismissal with prejudice on the procedural due process count was the least important of the 12 counts in the suit.

Shelley also maintained that the other 11 counts, which were dismissed without prejudice, makes his case eligible to be returned to its original venue in state court.

“(Judge Camp) only ruled on procedural due process. So the other 11 counts can go back to state court. None of those 11 have been resolved,” Shelley said. “State court is where it started to begin with. I’m happy with Judge Camp’s ruling. For me it’s a victory because they tried to dismiss the entire case but were only successful on one count.”

In a brief statement Wednesday, Mayor Don Rehwaldt said that both parties thought they were right and the court prevailed.

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