COVINGTON, Ga. — Developers are asking a judge to reverse county commissioners’ denial of their plans for a Dollar General store after saying it was based on their personal opinions of the retail chain and the recording of a one-sided "community meeting" one commissioner solely managed via Zoom.
Developers SW West Covington LLC and Johnbolt Properties LLC are asking a Newton County Superior Court judge to void a requirement they receive a conditional use permit (CUP) because it is "an irrational requirement that does not serve the public health, safety or welfare, while giving unfettered discretion to (the) Board of Commissioners to deny or approve a CUP request."
They are asking a judge to reverse the Board's Jan. 18 denial of their CUP request; and declare the CUP requirement for a store larger than 5,000 square feet to be voided because there is no rational basis for doing so.
The developers also wanted the judge to rule the Board's denial was arbitrary — based on personal preference rather than a stated reason — and "a manifest abuse of discretion" and award the developers attorney's fees and "such other relief as it regards to be just and proper."
The property at 11390 and 11368 Brown Bridge Road and 28 Kirkland Road now contains structures between 72 and 52 years old, including a restaurant; a vacant, former used tire repair store; and a residential home containing 1,512 square feet and occupied by renters, according to the legal document filed by the developers.
It is zoned for General Commercial (CG) uses but also is in the Almon Road Overlay District, which places additional requirements on the developer to provide landscaping, buffering from neighbors, extra parking and more.
The overlay district also requires any retail building over 5,000 square feet to receive a CUP, which is described as a permit allowing "the board of commissioners to approve a conditional use on a particular parcel without changing the general zoning district."
The proposed building was 10,640 square feet and "complied with all of the design standards of the Almon Road Overlay District," according to the document filed with the court.
It was 1.8 miles from the nearest Dollar General store; was in a development area that allowed the requested use under the county's Future Land Use Plan; and provided a 3.56-acre site which was adequate land area.
It also was compatible with the land use around it and had no adverse impact on streets surrounding it, according to the planning staff and the legal document.
Its building was to face Kirkland Road and the planning staff recommended conditions including a six-foot privacy fence and additional landscaping along the north side of the site; and construction of a deceleration lane on Kirkland Road for traffic to the store.
After the staff issued a favorable report recommending its approval, the county planning commission voted unanimously Sept. 28 to recommend the Board of Commissioners approve the CUP pending completion of a traffic study.
The developers then hired an engineering firm to complete the traffic study and the county traffic engineer concurred with its findings of no significant effects on surrounding roads.
However, during a public hearing at the Dec. 7 Board of Commissioners meeting, three residents who all lived at least 2.6 miles from the Dollar General site spoke, the document stated.
A videotape of the meeting showed Carla Hooper tell the Board of Commissioners she "represented" several community members who were concerned about the "choice of services" that a Dollar General store represented.
"It's not of the caliber we want in this neighborhood," Hooper told the Board.
Another resident, Alisha Brown, said a Dollar General store is "not something that the citizens of District 3 would want."
Board members voted to delay action — or “table” — the request.
The legal document stated District 3 Commissioner Alana Sanders soon after "announced that she has heard concerns about the Dollar General store from 'numerous people' and that she wanted to have a 'community meeting' to air those concerns.”
It stated that Sanders controlled registration for the virtual event on the Zoom platform and invited an unknown number of persons from unknown addresses to attend the meeting on the issue Jan. 6, the document stated.
"Approximately 20-30 persons participated in the Zoom meeting ... which was entirely controlled by Commissioner Sanders. The opponents to the rezoning spoke for 60 to 90 minutes.”
Participants complained about crime associated with dollar stores in the community, lack of quality control by store management and the 'proliferation' of such stores, the legal document said.
“When Petitioners' representatives tried to rebut what had been said, they were not recognized by Commissioner Sanders,” the document stated.
Sanders shared the Zoom meeting recording with other Board of Commissioners members before she "erased the connection and thereby eliminated the ability to review the Zoom meeting or to share it with anyone else," the document stated.
The District 3 commissioner then told the Board Jan. 18 — before it denied the CUP — that residents had complained about "lack of quality customer service" at Dollar General stores, The Covington News reported.
Sanders said she was responding to residents’ wishes in the Jan. 6 meeting she said was "live-streamed" in asking the Board to vote to deny the CUP.
She said nearby Fairview Road residents have incomes of at least $65,000 and "want to have stores that are in their area that fit them and that’s what they want in the area where they live." They also complained about a traffic light not being planned at the Kirkland and Brown Bridge roads, she said.
In the request for an injunction, the developers say commissioners did not receive input in a "proper public forum"; the denial was not related to a benefit for public health, safety, morality or welfare; the property is "economically disadvantaged"; and the CUP denial resulted in an unconstitutional "taking of private property without payment of just compensation."
They also allege there is "no rational basis to require a CUP for retail uses greater than 5,000 square feet and no public welfare served which makes the requirements for same a deprivation of Plaintiffs' due process rights."