A group of neighboring residents and property owners has filed a legal challenge seeking to have the Bulloch County Superior Court overturn the county Board of Commissioners’ Sept. 5 rezoning decision that clears the way for an up to 62-house subdivision to be built on 60 acres where Shuman Road and Old River Road meet.
Filed Oct. 4 on behalf of 12 individual citizens and one limited-liability company, the complaint, or officially a “petition,” doesn’t stake any claim to monetary damages but instead requests a “de novo review” and a judge’s decision that would revert the 60.2-acre tract, which R&H Development Company Inc. owns, to Ag-5 agricultural zoning. By their 4-2 vote on Sept. 5, the elected county commissioners granted the change to R-40 residential zoning requested by R&H Development and its CEO, Robert K. Bell Jr.
Neighboring properties remain zoned Ag-5, which allows for agricultural uses and for homes on minimum five-acre lots, with an exception for houses on one-acre lots deeded to close relatives. R-40 requires a minimum lot size of 40,000 square feet, or nine-tenths of an acre.
“The decision essentially amounts to spot-zoning, which, of course, is not allowed under Georgia law,” Noble L. Boykin Jr., attorney for the plaintiffs, argues in the petition to the court.
Those plaintiffs are Pam Shuman, John Shuman, Brandon Mason, Kerrie Mason, Naomi Mason, Wesley Taylor, Amy Taylor, SCF Woodlands LLC, Paul Abel, Marc Nemec, Talesa Nemec, Suzanne Bailey and Michael Bailey. They own or reside on adjoining property directly across Shuman Road or Old River Road from the R&H Development site “and will be adversely affected and negatively impacted by the requested rezoning due to the increase in housing density, traffic, pressure on services, and with the change of the countryside which will necessarily ensue,” the document asserts.
As noted in the complaint, the Bulloch County Planning and Zoning Commission, after two hearings, recommended denial of R&H’s rezoning request by a 4-0 vote of the appointed board members. County staff members who reviewed the request also recommended denial. These recommendations were made because the rezoning request was “actually contrary to the new Smart Bulloch land use plan and zoning map amendments” approved by the commissioners in June, Boykin asserts in writing.
But the elected commissioners, after holding a hearing on the request during their Aug. 1 meeting and deferring a decision, then approved the zoning change during the Sept. 5 meeting.
Wayman E. Shuman, as previous owner of the 60.2-acre tract, originally applied in summer 2022 to have it rezoned to R-25, for which the minimum lot size is 25,000, square feet or a little more than half an acre, to create a subdivision for up to 93 homes.
That was one of the development proposals drawing neighborhood opposition in August 2022 when the commissioners placed a moratorium on rezoning for higher-density subdivisions in the southeastern part of the county. This was done to allow time for a rewrite of the county’s zoning regulations and revision of its Smart Bulloch 2040 Comprehensive Plan and Future Development Map.
Shuman withdrew the R-25 request, and R&H purchased the land before the end of the year.
Then the revised Smart Bulloch plan and its map, approved by the commissioners in June, created a “suburban neighborhood” character area and “suburban corridors” in the southeastern part of the county. These are in areas near Interstate 16 and along Georgia Route 67 and Old Highway 46 proposed to be served by county-operated water and sewer systems, which have yet to be built. The suburban area extends only as far north as Mud Road and not to Shuman Road at Old River Road.
In their review of Bell’s R-40 request, county staff members stated that the land “would be appropriate for Rural Open Space,” and that the proposed level of density “is out of character for this location according to the present future development map in this area of the county,” Boykin notes in the complaint, quoting the county review document.
He cites negative impacts on public expenditures, school capacity, roads and law enforcement, emergency medical service and waste disposal resources stated in the review.
New type of appeal
By seeking a “de novo review,” the neighbors are asking the court to act under a new provision of Georgia law, both Boykin and one of the plaintiffs, Paul Abel, a retired attorney who previously practiced law in another state, said in phone interviews.
“The statute was substantially amended in July of 2022,” said Boykin, who is now based in Savannah but previously resided in Bryan County and served on that county’s planning and zoning board for several years.
“Previously you had to sort of pick and choose a cause of action that wasn’t always extremely efficient for what you were trying to do. …,” he said. “This new change in the law made it a lot easier to just go straight to the point.”
“De novo” means “from the beginning.” A section of the current law he quoted in the complaint states that the Superior Court at trial can bring up “the whole record from the local government, and all competent evidence … whether adduced in a local government process or not.” But it also states that the court’s presumption should be that the government’s zoning decision is valid unless the petitioners show by clear and convincing evidence that the zoning change is a “significant detriment” to them.
The lawsuit has been assigned to Superior Court Judge Michael Muldrew. The county, as well as possibly the development company, would now have 30 days to respond, according to Boykin.
“I think the county will respond, but that’s about all I can say at this point,” Bulloch County Attorney Jeff Akins said Monday. “I can’t really comment with it being pending litigation, but I would expect the county to file a response, yes.”
Stephen T. “Steve” Rushing, the Statesboro-based attorney who spoke for R&H Development Company during the Sept. 5 commissioners’ meeting, said that he heard about the lawsuit last week but that when he spoke to Bell on Friday he had not been served with the complaint yet.
“That is an option that they have to have the Superior Court review an action by the Board of Commissioners, but I do know that under Georgia law, the commissioners have a lot of discretion because they get to take into account a lot of different things in making their decision,” Rushing said. “But I think I’d better at least review it and go over it with Mr. Bell before I make any further comment.”
One of the documents attached at the end of the formal complaint, and cited in it, is a petition of a very different kind.
On about 40 lined sheets that were reportedly presented to community residents mainly at a couple of locations in the southeastern part of Bulloch County, the informal petition has been tallied to contain more than 600 signatures. Many but not all of the names are legible on a printout from the court’s electronic file. Participants signed beneath an all-capitals heading to “Stop Subdivision on Old River Road and Shuman Road!” Some but not all of the sheets contain a description of the developers’ request.