Editor's note: This article has been revised to reflect the following correction, which will appear in Saturday's print edition. The neighborhood across Fair Road from the Martha Benson estate's property is named Woodlawn. Because of a reporter's mistake, the wrong name was given once in a front-page story Friday, though the Woodlawn Neighborhood Association was correctly named in the same article. The Statesboro Herald regrets the error.

With the property owner raising issues that could inform a possible appeal to Bulloch County Superior Court, Statesboro City Council has delayed its decision on whether a hotel and a gas station can be built on land next to the Garden of the Coastal Plain.

The city is making preparations of its own by putting its reasons in writing.

"I expect that the mayor and council shall adopt written findings on this matter at its second meeting in February," Mayor Jan Moore said in calling for the delaying motion.

Requests for a zoning change and height variance for the Martha Benson estate's property at 1301 Fair Road came to the council with unanimous recommendations from the city Planning Commission that they be denied.

About 15 people, most of them neighborhood residents opposed to the project, had spoken to the zoning board Jan. 13, and dozens more signed petitions. But a separate City Council hearing is standard procedure, and many of the earlier comments were echoed, with new twists, at Wednesday night's council meeting.

"With the spotting of commercial zones already in the nearby area, we feel it's not unreasonable to consider this property for a commercial zone," said Stephen T. "Steve" Rushing, attorney for the Benson estate.

His firm had a court reporter - not a usual feature of City Council hearings — taking down everything that was said.

First noting that the property is across Georgia Highway 67, also known as Fair Road, from the Woodlawn neighborhood and other residential areas to the east, Rushing pointed out other commercial areas west of the five-lane highway. However, Georgia Southern University's botanical garden to the north and First Presbyterian Church to the south are among the Benson property's closest neighbors.

Originally a farmstead, the Benson house remained a family home until Martha Benson's death in 2009. As executor of her estate, her son, Dr. Robert M. Benson Jr., has a responsibility to put the property to its most effective use, and negotiations with the university failed to produce a deal, Rushing said.

So, Benson placed the 4.4 acres on the open market, and this led to a contract for Enmark Stations Inc. to buy it, contingent on the zoning change.

Besides building its own station, Enmark hopes to have a hotel company, as yet unidentified in the public meetings, build a four-story hotel, which Enmark Director of Real Estate Doug Carroll previously said would include 90-100 rooms.

Currently zoned R3, or medium density, multi-family residential, the property would have to be rezoned CR, or commercial retail. Unless the requested height variance is also approved, the building would be limited to three stories even in the commercial zone.

Under the existing zoning, 10 or 12 duplex apartment buildings could be built on the site, Rushing said. This would not require council approval.

Carroll, Dr. Benson and his real estate agent, Ralph Kitchens, also attended the meeting, but Rushing alone spoke to the council on the project's behalf.

Constitutional challenges

Rushing argued that the city should base any zoning change decision on the eight standards in its ordinance, which include how the change would fit in with existing uses of nearby property and maximizing property values diminished by existing zoning.

Rushing had also talked about the eight standards at the planning board meeting. But on Wednesday, he also handed City Council members a notice of constitutional challenges he alleges would apply if the council denies the zoning change.

The notice asserts that this would amount to taking private property without just compensation by denying its highest and best use, violate the U.S. Constitution's equal protection clause, deny due process and amount to an unlawful delegation of the council's authority, in violation of the Georgia Constitution, in response to neighborhood opposition.

"The decision would be based upon perceived but unsubstantiated negative impacts of the proposed zoning change on nearby property owners and not on the basis of the legitimate protection of the health, safety, moral or general welfare of the public," asserts a section about due process.

Park and neighborhood

Robert F. "Bob" Mikell, attorney for Woodlawn Neighborhood Association members, was the first of more than 12 people to speak in opposition to the zoning change. He commented on Rushing's notice of constitutional challenges.

"Courts will only strike down a zoning ordinance if (it) as currently zoned results in relatively little gain or benefit to the public while inflicting serious injury or loss on the owner," Mikell said. "Additionally, it is well-established that a serious detriment to the landowner is not shown by the fact the property would be more valuable if rezoned."

He also cited, as he had done at the Planning Commission, the Georgia Supreme Court's 1931 decision in Howden v. Mayor and Aldermen of Savannah. Upholding zoning that allowed only homes beside Forsyth Park, thus prohibiting a gas station from being built, the court cited the park's "loveliness and beauty" as contributing to the city's general welfare.

"Well, as I'm sure you're going to hear from some of the ... citizens of Statesboro and Bulloch County, the Garden of the Coastal Plain is right next door, and it's one of our few public green spaces in the city, and it has an estimated 20,000 visitors a year, 3,000 schoolchildren, and really is a crown jewel of this community," Mikell said.

Kathy Shriver, from the Woodlawn neighborhood, noted that she and other residents previously opposed a zoning request by the Parker Companies, which proposed a station across from Hanner Fieldhouse.

"Since then, Parker's found a very successful place to build on in an already zoned commercial property, and Enmark can do the same," she said.

Another resident delivered petitions signed by Woodlawn, Edgewood, Greenbriar and Wendwood residents opposing the zoning change. Shriver said 64 families were represented in Woodlawn alone.

First Presbyterian Church has registered its objections both with a letter and public statements by its members.

Based on the notice that "certain constitutional issues are in play," Moore said, she was asking for the delay "so that the facts and law can be reviewed."

City Attorney J. Alvin Leaphart IV confirmed that he will draft for council's adoption "written findings of fact and the reasons for its decision, so if there's any sort of challenge made ... any court reviewing its decision will have a clear understanding of why council decided as it did."

If the council denies the request, either the Benson estate or Enmark Stations Inc. could seek a writ of mandamus from the Bulloch County Superior Court to reverse the city's action, Rushing said Thursday.

"As far as I know, neither of those parties have made any decision in that regard," Rushing said. "First, they would need to see the city's decision, in its written format, in order to make that decision."

After the council votes, the property owner or contracted buyer would have 30 days to file.

Al Hackle may be reached at (912) 489-9458.