A Glynn County Superior Court Judge dismissed a lawsuit Thursday that alleged the Glynn County Commission approved a preliminary subdivision plat that violated the zoning ordinance.

“This case arises out of the decision of Pamela Thompson, in her capacity as the Glynn County Community Development (Department) director, to approve the preliminary subdivision plat for the Fifty Oaks subdivision on the north end of St. Simons Island. Petitioners allege that they own property near the site on which the subdivision will be constructed and are opposed to the construction of a new subdivision near their property,” according to the final order in the case, written by Judge Stephen Kelley.

St. Simons Island landowners Mark Forsling, George and Donna Hoh, Thomas Lawton Nalley and Shedrick Ramsey filed the case in September 2018 challenging Thompson’s approval of Fifty Oaks — a proposed development of 54 residences in 15 row houses on a lot behind Bennie’s Red Barn on South Harrington Road.

“They claim that various alleged deficiencies with the preliminary plat and the underlying zoning classification of all or some of the property require that Thompson’s decision to approve the preliminary plat be reversed or declared invalid,” Kelley wrote in the order.

The original petition filed by the plaintiffs alleged the Gentile Trust, owner of the property behind Bennie’s, did not own the entire tract when the county commission approved its rezoning from R-6 residential to planned development, or PD, in 2005.

If the property was still zoned R-6, then the preliminary plat Thompson approved in 2018 would not have complied with the county’s zoning ordinance.

To back up their case that the property had never been properly rezoned, attorneys for the plaintiffs argued that a 1.11-acre parcel in the middle of the Fifty Oaks property — a narrow strip of landed intended to be a road — belonged to someone else at the time.

Plaintiffs also argued that county ordinances don’t allow a third party to rezone someone else’s property, so the rezoning never lawfully occurred and the property is still zoned R-6.

Addressing the first point, Kelley wrote that when someone sells a property “bounded” by a road that the seller also owns, Georgia courts hold that sale includes that road unless the terms of the sale explicitly state otherwise.

“The public policy supporting this rule of construction is the desire to avoid the undesirable result of having long, narrow strips of land owned by people other than the adjacent landowner,” according to the order.

Further, in 2005 the county zoning ordinance didn’t require that the legal owner of a property be the one to request a rezoning. He also pointed out that no one appealed the rezoning in a timely manner.

“It is also worth noting that when the Gentiles submitted their 2005 rezoning application, they signed an ownership certification indicating that they owned the property,” the order states. “The county planning commission and Board of Commissioners who considered that application believed the Gentiles to have owned the property. In 2005, when the application was approved, the official zoning map of Glynn County was changed to classify the 1.11-acre parcel as PD-G. That zoning classification is the official zoning classification of Glynn County, was never timely appealed and has not been changed,”

The plaintiffs also argued that the rezoning was deficient from a procedural standpoint.

“Petitioners’ claim that the 2005 zoning of the property to PD-G was invalid is based upon the following allegations: a site plan was not submitted following the rezoning of the property to PD-G in 2005; a master plan was not submitted along with the rezoning application in 2005; a master plan was not adopted in the amendments passed in 2008 and 2009; and the zoning text was never properly adopted,” Kelley’s order states.

According to Kelley, the county’s zoning ordinance doesn’t require a site plan to validate a PD rezoning, it only states an applicant may submit a site plan and that one is only required if the applicant wants a building permit.

As for the alleged lack of a master plan in the 2005 rezoning application, Kelley disputes the plaintiffs’ petition by stating a master plan was included.

He also writes that the zoning ordinance in effect in 2005 was not the same as the zoning ordinance in effect now and that the master plan did meet the requirements of the ordinance in 2005.

Addressing the third allegation, Kelley writes that the zoning ordinance in effect 2008 and 2009 only required a master plan for the creation of a PD zone, but not for an amendment to the zoning text.

In response to the plaintiffs’ fourth allegation, Kelley wrote: “Petitioners allege that the zoning text was not properly adopted because it ‘was not referenced in the minutes of [sic] resolution.’ However, the resolutions attached to petitioners‘ first complaint each reference the respective rezoning application numbers, which incorporate by reference the zoning texts submitted therewith. The law does not require more.”

Kelley’s order also addressed other issues the plaintiffs raised with the planned uses for the property, such as whether or not a road constructed on one property can be used exclusively for access to another, that the number of residential units planned exceeded the maximum allowed by the zoning text, that the subdivision plat exceeded the maximum amount of impervious surface and that the defendants followed the wrong procedure in subdividing the property.

He came down on the side of the county and the Gentile Trust in all cases.

Plaintiffs also alleged that the county’s preliminary subdivision plat approval process is in itself a violation of due process rights as it does not require public hearings or that the public or neighboring landowners be given notice of proposed preliminary plats.

“The law does not recognize a property right to be free from development on neighboring property that is a permitted use under its zoning classification. Put simply, procedural due process is not triggered in this scenario,” according to the order.

Kelley went on to dismiss the plaintiffs’ claims of illegal land disturbance activities, as well.

Due to the nature of the allegations and the fact that Thompson’s decision to approve Fifty Oaks was not made with malice or intent to harm, Kelley found that sovereign immunity protected her and the county commission from the lawsuit brought by the plaintiffs.

“For the foregoing reasons, defendants’ motions to dismiss are hereby granted, and the action is hereby dismissed with prejudice,” the order reads.

Plaintiffs have 30 days from Wednesday to file a notice of intent to appeal Kelley’s decision.

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