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Judge dismisses developer's lawsuit against Johnson City

COREY SHOUN • Feb 13, 2007 at 6:24 AM

JOHNSON CITY - Developer Stewart Taylor's lawsuit against the city of Johnson City over review and issuance of a building permit was dismissed Monday.

Taylor filed for a writ of mandamus several months ago in Johnson City Law Court in an attempt to compel the city to issue him a building permit for his property at the corner of West Market Street and North State of Franklin Road.

However, Judge Jean Stanley agreed with the city's contention that Taylor did not pursue the proper "administrative process" by filing suit instead of first going to the Johnson City Board of Zoning Appeals.

"Do I want to hear every case the BZA hears? If I take this one, don't I take all of them?" Stanley said during the morning court hearing in Jonesborough. "I think that's why the process is in place. ... He does have to go to the BZA."

The process for Taylor to receive a building permit that would allow him to construct condominiums on his 8.6-acre site has been on hold for more than a year. Taylor's attorney, Arthur Seymour, contended the city never actually denied Taylor's request for a building permit, which would have clearly paved the way for an appeal to the BZA.

"They want him to keep chasing his tail," Seymour said. "We're faced with inaction."

Chief Building Inspector Steve Shell, named in the suit along with Planning Director Jim Donnelly, said the full review process was not followed due to mitigating circumstances. Shell said James Epps IV, associate legal counsel for the city, advised him not to continue the review process due to pending action on rezoning ordinances that involve Taylor's property.

The city initiated consideration of a rezoning for much of the middle anchor of the Med Tech Corridor, including Taylor's parcel, from its current R-4 residential zoning to RTP planned research/technology. Taylor has also requested a rezoning to MS-1 medical/commercial zoning.

Both rezoning ordinances are slated to be considered by the Johnson City Commission during Thursday night's regular meeting. Both had been on hold pending completion of a Med Tech Corridor usage study that was finished last week and will be presented to the public tonight at a 7 p.m. session at the Centre at Millennium Park.

A portion of the study suggests the best zoning for Taylor's property would, in fact, be MS-1.

"If this issue could be decided to Mr. Taylor's delight on Thursday night, why would you want me to decide this today?" Stanley asked Seymour.

Stanley said a letter from Epps to Taylor, which advised him of the city's refusal to issue a permit while rezonings are pending, served as a refusal, meaning an appeal to the BZA would have been possible.

That avenue will be pursued now, even with consideration of Taylor's MS-1 rezoning request on tap for Thursday, Seymour said. He said an appeal of Stanley's ruling will also be considered as they expect consideration of Taylor's rezoning request to be "dragged out" as long as possible.

"They'll run him around with his site plan approval," Seymour said. "They're doing everything they can to keep Mr. Taylor from using his property in hopes that he'll sell it to Mountain States (Health Alliance) or ETSU or someone else."

Seymour also said he would recommend to any prospective developer to look somewhere other than Johnson City for new projects.

"Property rights are very important in this country, and Johnson City has trampled all over that," Seymour said.

For his part, attorney Erick Herrin, representing the city, said the commission and city officials have been undertaking their due diligence and responsibility to the community with this issue. Herrin said he hopes Taylor and the city can now work together amicably to develop the property.

"Many developers understand there are legitimate community concerns with how our city grows, in particular with that property," Herrin said. "How would you like to have a three-story Mouse's Ear on that property."

Herrin was referring, tongue-in-cheek, to the adult-oriented establishment in Gray.

Controversy has surrounded what is commonly known as the former Tennessee Valley Authority property, which Taylor purchased by outbidding the city at auction in December 2003, for several years. In November 2005, Taylor removed four large, and very old, beech trees from the property after the City Commission voted down a rezoning request that would have allowed Bob Pearman, who had been leasing the property from Taylor, to construct a combination retail/restaurant development at the site.

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