Sole Commissioner Elsberry responds to Planning Commission Appeal Request

I am writing to appeal to the actions of the Planning Commission in relation to the Evans and Green Road Subdivision and the resolution in regard to the Brookwater LLC subdivision approved in their meeting on June 20th, 2023. It is my belief that both of these actions are in violation of the law and should be investigated by your office.

The first action was in regard to the Evans and Green Road Subdivision recorded at the courthouse on February 10th, 2023. The council seemed to be under the impression that they were there to determine the subdivision class. The erroneous legal opinion offered by the county attorney on the class of subdivision is irrelevant until the issue of the failure to comply with the ordinance in regard to the filing of the plat in Section 99(a) is resolved. The law you signed is very clear in Section 35 on what your office and the Planning Commission must do in regard to such violations. For reference:

Section 35. Violations.
(a) Any person violating any provision of this ordinance and these regulations shall be guilty of violating a duly adopted resolution of the county. Violations under this ordinance shall be tried in the Magistrate Court of Chattooga County, Georgia. Any person convicted of violating any provision of this ordinance shall be punished by fine not exceeding $1,000.00 or six months’ imprisonment or both, and in accordance with and as otherwise allowed pursuant to OCGA §15-10-60 Each day such violation continues shall constitute a separate offense.
(b) Any subdivision or development hereafter established shall be designed, developed, and recorded in accordance with the provisions of these regulations. Failure to comply with the regulations herein shall result in the following:
(1) The County shall not accept the subdivision, nor shall it improve, maintain, grade, pave or light any street within such subdivision unless such street shall have received the status of a public street prior to the effective date of this ordinance.
(2) No public agency shall authorize the extension of water service, sewer service, or other public operated services into such subdivisions.
(3) No permits for construction shall be issued in such subdivisions. It has now been 131 days since the violation occurred. Since each day constitutes a separate offense, that’s a fine of up to $131,000 or 65.5 years in prison or both.

The resolution in regard to the Highway 157 property (Application #23-000004) is the most concerning. This project has only been mentioned in passing during the May meeting and no substantive discussion or review of this project has taken place by a quorum of the Planning Commission during an advertised public meeting. This project has never even been advertised in the legal organ of the county. At best, the resolution indicates a Planning Commission meeting being held in violation of the Open Meetings Act (Ga. Code § 50-14-1). At worst, the resolution is a knowing and willful Abuse of Governmental Office (§ 16-10-8) by offering false official writing when they stated that the matter had been addressed in a called meeting. Should the latter be the case, that is an offense punishable by no less than one nor more than five years in prison for the people who approved filing the false document. This resolution also does not account for the multiple ordinance violations committed by the applicant in the final plat illegally recorded without the review of the Planning Commission nor the Planning Director’s approval.

Like the above scenario, this illegal plat filing should have been resolved through the means you outlined in your ordinance in Section 35 before being brought before the Planning Commission for their opinion on the matter.

As a Sole Commissioner, you are in a unique position having full executive and legislative oversight of the affairs of the county. You are the one responsible to make sure things are working and operating as they should. You have an obligation to enforce the ordinance you signed. Either you believe in the ordinance you put in place or you don’t. Both your personal and professional reputations are on the line should you allow these violations to continue. Simply having sought legal counsel does not remove the personal liability for yourself, Mr. Hall, or the members of the Planning Commission should you operate outside of the law. Your prompt attention in this matter is required.

Commissioner Elsberry responded to the appeal letter on June 27, 2023.

The letter from Sole Commissioner received prompt responses from Allen and Housch.

Commissioner Elsberry,

Thank you for your response to our letter.  

In our letter, we were using the term appeal in the broader sense of the word. In your response, you have chosen not to comment on the legality of the actions taken by the Planning Commission in their most recent meeting.  You did, however, highlight a deficiency in the ordinance that has been discussed and has not been remedied in any of the ordinance drafts, that is that the public has no right to appeal the Planning Commission’s decisions.  

The actions taken by the Commission are in direct violation of the rules you put in place to govern them. The plat in question was recorded illegally.  In case you missed it, I have attached a snippet from the May Planning Commission meeting where the Chairman said as much.  Your current ordinance does use specific language on the processes that are supposed to be in place for you, the Planning Director, and the Planning Commission to follow.  Those have not been upheld.  Do your duty as Commissioner to enforce the ordinance you deemed urgently necessary for the people of the county.

You made the statement that I have not spoken in person to you about the ordinance.  That is true, as most weekdays I am out of town on business and you have not attended any of the Planning Commission meetings that I have been able to attend. If you recall, I reached out to you on multiple occasions last year by email to work through the ordinance issues. You chose not to do what you said you would do then, I see no reason to believe you will honor your word now.  However, if you would like to meet to discuss this further I am open and available at a mutually agreeable time.

Regards,

Ben Housch