MICHELLE WILLARD, Post Staff Writer
Posted: Tuesday, October 21, 2008 11:17 am

Rutherford County Chancery Court ordered the County Commission to take another look at its decision to deny Bible Park USA.

“The Court has reached the conclusion that the decision of the County Commission must be vacated and this matter remanded to the County Commission with diretions further to consider the question in accordance with the guidelines established herein,” Chancellor Robert Corlew wrote in his decision Monday.

Corlew also ruled the county is responsible for the attorney’s fees and court costs incurred by the Sheltons during the trial

Click here to read Corlew's order.

“The Shelton family is gratified with the Court's decision,” said Taylor Harris, Shelton family attorney. “They have no other comment. The decision speaks for itself.”

County Mayor Ernest Burgess likewise had no comment, although he said he is still in the process of reviewing Corlew’s opinion and developing questions “that someone needs to address.”

Burgess was also unsure whether the issue would come before the commission at its next meeting in November.

At issue before the court was a lawsuit by the Shelton family challenging the county’s denial of a rezoning request by BPU Holdings, LLC for the development of Bible Park USA. The Shelton family owns the majority of the 240 acres optioned by BPU Holdings.

In their lawsuit against Rutherford County, the Sheltons claim petitions in opposition to the park from surrounding landowners was invalid and that County Attorney Jim Cope overstepped the bounds of his job by ruling the petitions valid.

Corlew agreed and sent the decision back to the commission for it to decide whether a supermajority vote was required.

In the days leading up to the May 15 county commission vote on the rezoning request, 27 petitions were submitted by surrounding landowners in opposition to the development of the park, which is allowed by Section 4.05 of the Rutherford County Zoning Resolution.

According to Section 4.05 of the Rutherford County Zoning Resolution, if 20 percent of surrounding landowners submit notarized petitions opposing development, then the proposed development requires a two-thirds majority vote for approval.

Cope, along with help from Regional Planning Director Doug Demosi and other Planning Commission staff, decided a sufficient number of petitions had been submitted to force a supermajority vote.

Corlew said the commission has the right to determine whether petitions submitted by surrounding landowners requires a supermajority vote, not Cope or Demosi.

“Further, and of greater concern to the Court, is the total absence of any basis within the record for the Commission’s determination that a majority vote of the Commissioners was insufficient in order to pass the change,” Corlew wrote.

The use of section 4.05 ultimately resulted in the denial of the proposed Biblically themed amusement park with the commission voting 12-9 to approve the park, falling two votes short of the 14 needed.

Corlew ruled the commission should have been given a chance to overrule the county attorney’s opinion on the petitions, and it was not given the opportunity. Also, the petitions were not even introduced to the commission during the May 15 meeting, it was just assumed that the petitions were valid and a supermajority vote to approve was required.

“Clearly the decision must be rendered that the proceedings before the County Commission do not demonstrate a basis for the requirement that a 2/3 vote was required,” Corlew wrote.

The petitions
The county contended 18 petitions were valid, but the Shelton family and Harris contend at least three of the approved petitions should be discounted.

One was a petition submitted by James Mullins, who lives on Florence Road. A few days before the vote, Mullins sent a request to the planning commission to remove his petition, but it was kept in.

Two other petitions from the Hogues, whose property abuts the Sheltons, should have been discounted, Harris contended, because they were filled out improperly. The petitions state the owners’ property is adjacent to land owned by G.E. and Kathleen Lowe, when in fact it shares about ten feet of property line with the Sheltons.

Therefore the two-thirds majority vote is unnecessary and the rezoning request only required a simple majority or 11 votes to pass.

Cope advised 18 petitions were valid. As a result, the park’s rezoning and conditional-use permit request required a two-thirds majority from the full commission. During its May 15, the commission voted 12-9 to approval meeting, which fell short of approval by two votes.

Corlew determined it is not the court’s responsibility at this point to determine whether all the petitions were valid.

“This is truly not our decision anymore than it was the decision of the County Attorney or Planning Director,” Corlew wrote.

Section 4.05
The lawsuit also challenged the legality of Section 4.05 in general. Harris argued the statute does not contain any notification language in it and therefore violates due process of law.

Due process is, in part, an individual’s right to notification by the government and is protected by the Fifth and Fourteenth Amendments.

Berry argued it didn’t matter if the Sheltons were notified, because BPU Holdings was and that is the name on the zoning application.

Corlew ruled it is not the role of his court to decide whether the provision violated due process.

Michelle Willard can be contacted at 615-869-0816 or mwillard@murfreesboropost.com.