An attorney for a group of Dobbs Drive homeowners asked a visiting judge Wednesday to declare Phenix City's zoning ordinance unconstitutional, attacking a provision that allows City Council to unconditionally waive regulations when approving a Planned Residential District.
The attorney, Richard L. Chancey, said council "arbitrarily and capriciously" disregarded zoning requirements when it designated 20 undeveloped acres for the Central Forest Development, a project that includes the construction of a 136-unit apartment complex across from Central High School. A divided council, over opposition from affected neighbors, approved the zoning changes in February, and waived a requirement that such residential districts exceed 40 acres.
"Basically it's given the City Council carte blanche authority to do whatever it wants to," Chancey said of the waiver provision. "There's no protection here. It's completely at the whim of the City Council."
During a bench trial Wednesday, Chancey argued the city skirted protocol and failed to justify the waiver, denying his clients due process and equal protection. The plaintiffs, three men who live on Dobbs Drive, have said the apartments would diminish their property values and quality of life in their quiet neighborhood.
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City officials have said the case is without merit and due to be dismissed. Ronald G. Davenport, a Montgomery, Ala., attorney defending the city, told Circuit Court Judge Christopher J. Hughes the standard of review in such disputes is "highly deferential" to the municipal body making the zoning decision. He said Phenix City came into the case with the presumption its actions were valid.
Davenport pointed to steps council took to research the impact the apartment complex would have on traffic -- the school zone already becomes congested during rush hour -- and on crime rates. "They took a legitimate effort to make the decision," he argued.
Davenport called as a witness police Chief Ray Smith, who said he doesn't expect the project -- nine multi-family dwellings and eight residential lots -- to affect crime in the surrounding area. "I found no correlation between crime in residential neighborhoods when they're adjacent to or near apartment complexes," Smith testified, referring to a statistical analysis he conducted of police calls.
Angel Moore, the city engineer, said her department conducted a study that found the complex would slow the average speed on the road by a few miles per hour. But the project won't materially affect traffic on the road, she said, adding the road is wide enough to add additional lanes if need be.
Hughes also heard from outgoing Councilmembers Jimmy Wetzel and Michelle E. Walker, who voted in favor of the rezoning and annexation. Both councilmembers maintained they acted in the best interests of the city, saying the apartments would have been built on J. Fletcher Findlater's property whether the city annexed the land or not. The move will boost the city's tax base and give the city a degree of control over the apartments, they said.
The arguing turned to semantical sparring during Chancey's cross-examination of Wetzel. Chancey sought to highlight the wording of a since-deleted provision in city ordinance stating Planned Residential Districts "shall" consist of 40 or more acres. The city maintains the language wasn't binding due to the waiver option in the ordinance.
"In my opinion, the word 'waive' means you can waive the 'shall,'" Wetzel said.
"So the 'shall' means nothing?" Chancey countered.
"It does without the 'waive' in there," Wetzel responded, "but with the 'waive' in there, you can waive the 'shall.'"
Walker said her vote had been rooted in "the progress that was being made in Phenix City" at the time, but she acknowledged ignoring more than two dozen calls from constituents before the February vote. Gail N. Head, who unseated Walker at the polls last month, lives in the affected neighborhood and sat among the opposition group, underscoring the political overtones of the case. Hughes, a Lee County judge assigned the case after the local judiciary recused itself, said he would enter a written order announcing his verdict at a later date.