Lisa Marchesoni
Posted: Monday, October 26, 2009 5:54 pm

About 300 acres of land in the Blackman community sought by Bible Park USA must be rezoned after an opinion delivered Monday by the state Court of Appeals.

Appellate judges ruled requiring a two-thirds vote on the rezoning of the property was invalid.

“We have determined that the provision of the county zoning resolution requiring a two-thirds vote is invalid and that the zoning application should be granted since it received a majority vote,” stated Court of Appeals Judge Andy D. Bennett.

Also, the appellate judges ruled the county does not have to pay the attorney fees of the Shelton family who sought to have their land rezoned.

The 282-acre plot zoned residential was chosen for the development of Bible Park USA by SafeHarbor Holding of New York City. But the property had to be rezoned to allow for the development.

Relying on a portion of the county’s zoning ordinance, 20 percent of the homeowners signed petitions to oppose the rezoning for an entertainment zone. The petitions required a two-thirds vote of the Rutherford County Commission to approve the zoning. The rezoning failed so the Bible Park developers sought the development outside Rutherford County.

Property owners Carol Shelton and her sons, Will, Steve and Ben, filed a lawsuit in Chancery Court, which was appealed to the Court of Appeals.

The appellate judges ruled state law mandates the two-thirds majority is not allowed with the zoning ordinance.

Appellate judges ruled the rezoning request received a majority vote of the county commission and should have passed.

The court also ruled the Sheltons were not entitled to the attorney fees because the action did not violate their constitutional rights.

Attorney E. Taylor Harris Jr. issued a statement on the Sheltons’ behalf.

“The Shelton family is gratified that the illegality of the County Zoning Resolution provision permitting a two-thirds vote has been documented by the State Court of Appeals,” Harris stated. “Its removal by the Appeals Court order benefits all Rutherford County property owners. It is a major step in bringing the County’s zoning procedures back under the law.”

Attorney C. Dewees Berry, who represented Rutherford County, said the appellate court ruling showed the county did not violate the Constitution so the county doesn’t have to pay the Sheltons’ attorney fees.

“I think not having the attorneys’ fees and finding no constitutional violation was very important to the county,” Berry said.

Because the county didn’t have legislation to allow the supermajority, Berry said the zoning request was approved.

Berry discussed the opinion with some county officials but said he didn’t know if the county will appeal. Both sides have 60 days to appeal.