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Lake Spivey development leaves county in legal quandary

By Joel Hall

jhall@news-daily.com

A decision by the Clayton County Board of Commissioners last year to approve plans for a new subdivision on a portion of the Lake Spivey Golf Course has left the county in a legal quagmire -- one in which the county could face lawsuits from both the developer and nearby residents, regardless of how it votes when it revisits the matter next Thursday.

In February of last year, during a regular business meeting, the BOC approved plans for developer group, Spivey Club, LLC, to begin work on a new, 128-home subdivision on a 40-acre portion of the Lake Spivey Golf Course. The plan was approved as a conservation easement, which would reserve residential development to 9 holes of the golf course, and preserve the remaining 18 holes as a perpetual greenbelt.

However, three Lake Spivey residents, whose property abuts the golf course -- Edie Lee, Karen Cook, and Bill Ihringer -- sued the county last year, challenging the validity of the approval.

The three neighbors argued that a conservation easement must be approved through the same means as a regular zoning approval, which requires advertisements in both the newspaper and general vicinity of the work site, as well as a hearing before the citizen-staffed Zoning Advisory Group. Those steps, they argued, are required before BOC approval.

They also argued that building 128 units on 40 acres of land would create cluster homes, which would drive down the value of the surrounding property.

After a year of public argument, litigation, and out-of-court mediation, the BOC recently required Spivey Club, LLC to present its conservation easement plan to the Zoning Advisory Group and go through proceedings of a normal zoning approval.

On Monday, the Zoning Advisory Group recommended that the conservation easement plan be denied. On March 20, the advisory group will bring its recommendations to the BOC, which will ultimately approve or deny the plan.

If the BOC approves the plan, it faces further litigation from Lee, Cook, and Ihringer.

If the BOC denies the plan, the three will sue for damages for allowing the development to happen in the first place. The county could also face a lawsuit from Spivey Club, LLC, for allegedly misleading the developers, and ultimately, allowing it to waste hundreds of thousands of dollars in time and manpower.

While the county views revisiting the conservation easement as a graceful gesture to alleviate confusion, the developers and the residents view the decision as an admittance of an initial oversight.

"It's definitely too little, too late," said Simon Bloom, the lawyer representing Lee, Cook, and Ihringer. "It's more of a gesture to avoid getting sued by the developer than it is a charitable gesture on behalf of the plaintiffs."

Jack Hancock, the lawyer representing the county, argues that a conservation easement plan is not a matter of zoning, and historically, has never been treated as such. "What was considered by the board was the approval of the preliminary plat for a conservation easement design, which historically, has been done in the same manor by the previous board.

"The plaintiffs' argument is that the approval of a conservation easement plan is handled the same way as a rezoning," Hancock continued. "Our legal position is that it is not a requirement. Rather than spend the money to fight about it, we are bringing it back," for review by the Zoning Advisory Group.

Bloom argued that, even if the plan is denied, Lee, Cook, and Ihringer would still seek damages.

"Just doing it over again doesn't resolve the litigation," said Bloom. "[Lee, Cook, and Ihringer] started off with a beautiful golf course behind their homes. The county blew it and allowed the bulldozers to come in and turn it into a mud pit, so obviously the property values of the plaintiffs have been impacted."

Spivey Club, LLC Project Manager Jay Byce said the decision to bring the matter before the zoning board also puts him in a precarious position. If the BOC follows the advice of the Zoning Advisory Board and denies the conservation easement plan, Byce said he would be forced to recoup on his investment.

"We'll be doing two things," if the plan is denied, said Byce. "We'll have to litigate with the county for the damages incurred because we started a project that they approved. The other thing is we will begin the process of closing down Lake Spivey Golf Club to build a much larger, encompassing subdivision" in the $170,000 -- $180,000 price range.

Lake Spivey Golf Course owner, Joe Hamilton, said that, as a contingency clause in his purchasing contract with Byce, the developer has the option of purchasing the remaining 18 holes of the golf course and developing houses on it. However, Hamilton said that isn't what he wants to happen.

"My preference is to continue running the golf course," said Hamilton. "I've been here 28 years ... I don't want to leave. He said that if Byce exercises his right to purchase the remaining property, "I wouldn't have the option to dictate whether it is golf or residential."

Cook said she is against the conservation easement design, but pleased that the county is going through zoning procedures.

"I was very happy ... I felt vindicated," said Cook. "The county has erased everything they have done and they are going through the approval again." However, "it's a tacit recognition that something was done incorrectly."

The BOC will decide on the matter at next Thursday's zoning meeting.