Judge Hears City Lawsuit

By MARK THOMASON, Publisher

The lawsuit brought against council member Angie Arp by Ada Street, LLC, was heard by Judge Christian Tuesday, August 30 and Wednesday, August 31. Ada Street LLC member Steve Oyer alleged Arp should not have voted against his rezoning request, due to a conflict of interest. He requested his property on Ada Street be rezoned from residential to commercial. Council members Arp, Pack and Kendall denied the rezoning request, each expressing the change would not be in the best interest of the residential neighborhood. There was concern about the traffic impact such rezoning would have on several primary streets in the neighborhood and the downtown area.

Austin Perry and John Dickerson, representatives associated with the Georgia Municipal Association, and city attorney David Syfan represented Arp. Attorney David Farnham of Blue Ridge represented Steve Oyer, managing member of Ada Street, LLC.

First witness was Ms. Arp, giving in detail why she voted against the rezoning request. She began by saying she considered each case, individually, as required by law. The procedure required by the State of Georgia and incorporated into the city zoning ordinance was followed, as it is in all rezoning requests. Arp said she based her decision on the six factors required by law, as well as her personal philosophy on commercial property encroaching into residential neighborhoods. Arp said she has lived in Blue Ridge all her life and she feels that protecting residential areas is important to the citizens who live in this small town.

Arp reviewed the staff analysis report, which was prepared by the city zoning administrator, for the zoning board members to give basis for their recommendations. Arp stated the staff analysis report had six standards (or factors) required by law to be considered when evaluating zoning matters. Arp read over the six factors presented in the staff analysis report, and said no factors supported rezoning this residential property to commercial property, stating the report indicated if the property was rezoned, it would have a negative impact on the residential neighborhood. Arp also noted that she was concerned about the impact that a 32-unit extended-stay hotel would have on traffic on Ada Street, Mountain Street, West First street and any other street in the general area. Arp stated considering the staff analysis report combined with the future land use map did not support rezoning the residential property to commercial; she did not know why the zoning board recommended the property be rezoned to commercial. Arp concluded, saying the decision she made was consistent with the staff analysis report; she did not think rezoning this property would be in the best interest of the residential area; it had nothing to do with Mr Oyer.

Following Arp’s testimony as to why she denied the rezoning request, Attorney David Farnham representing Steve Oyer of Ada Street, LLC, cross-examined Arp. Arp was first questioned about a newspaper article in which she was quoted making statements about actions taken by Mayor Donna Whitener and Council Member Rhonda Thomas, in an attempt to help their friend Mr Oyer, get his property rezoned. Arp said Whitener and Thomas’s unauthorized involvement in this case could have caused the city thousands of additional dollars in the lawsuit. Arp said the council made the decision, and neither Whitener or Thomas had any legal right to attempt to defy the council’s actions. Such attempt violated the city charter as attemps to veto the council decision to deny the rezoning request were made. Subsequently Judge Christian upheld that Mayor Whitener did not have the authority to veto the action of the council. Arp said Whitener and Thomas should have respected the council’s decision. Arp was also quoted in the article, saying it was hypocritical and wrong for council member Rhonda Thomas to accuse Arp and Kendall of having a conflict of interest because they owned property near Ada Street, LLC property. According to Georgia law, owning property or having a business near a property requesting to be rezoned does not constitute a conflict of interest. Arp claimed Thomas should have known what a conflict of interest was, and she certainly should have known what a conflict was before accusing anyone of wrongdoing.

David Farnham, attorney for Ada Street LLC, tried to prove that Ms Arp was wrong (about her comments made toward Ms Thomas), stating Ms Thomas didn’t own property by Ada Street LLC property when she voted in favor of Mr. Oyer’s rezoning request. But, according to Arp’s testimony, and according to audio recording of city council meetings, council member Rhonda Thomas abstained from voting on a similar rezoning request four months prior to voting in favor of Mr Oyer’s rezoning request. According to Arp, when Ms. Thomas abstained from voting on the similar rezoning request, her reason was because she had property near the property seeking to be rezoned and she referred to her real estate business, located near the property. When called to the stand, Ms. Thomas testified that her real estate office was not the reason she abstained from voting on the property across from Mr. Oyer’s property. Arp stated earlier that there was city council meeting audios that confirmed Ms. Thomas did have interest in property that was closer to Oyer’s property than Arp or Kendall’s. On August 9, 2016, Thomas again voted in favor of rezoning Oyer’s residential property to commercial, the request was denied by a 4 to 1 vote of the council, with Ms. Thomas being the only council member voting in favor of the request. Thomas failed to disclose that she had property across the street from the property seeking to be rezoned and never disclosed that her property was closer to Mr Oyer’s property than Arp or Kendall’s.

Hearing Conclusion: Wednesday, August 31 at 9:00.

Ada Street LLC witnesses totaled four: Steve Oyer managing member of Ada Street LLC and owner of the Black Sheep Restaurant, Cindy Trimble, past president of the Blue Ridge Business Association, Mayor Donna Whitener and council member Rhonda Thomas. Mayor Donna Whitener took the stand and testified that Arp told her five or six years ago she wanted to build a hotel. Arp’s attorney established that Ms. Arp did not have a hotel, had no plans of building a hotel, and Ms. Whitener’s testimony was purely speculative, at best. Council member Thomas testified to the same. Both Whitener and Thomas had the same testimony against Arp; both claiming her actions toward Mr Oyer at council meetings proved she had malice toward Mr Oyer. Arp’s attorney asked both Whitener and Thomas if they were friends with Mr. Oyer and if they had taken campaign contributions for Mr. Oyer. They both testified they were friends of Mr Oyer and they did take campaign contributions from him. Arp’s attorney also established that neither Mayor Whitener, nor Rhonda Thomas, liked Ms. Arp. Arp’s attorney asked Mayor Whitener if Ms. Arp had ever challenged Whiteners authority, adding that Arp often had to get the city attorney involved due to Arp’s concerns that Mayor Whitener often did not follow the charter, or state laws. Arp testified that the blatant failure to follow the charter, is what prompted her to request that a professional law firm do an investigation to determine whether the mayor had been effectively running the city, and if everything had been done correctly.

When council member Rhonda Thomas took the stand testifying on Mr. Oyer’s behalf, Arp’s attorney began by asking Ms.Thomas if she liked Ms. Arp. Thomas stated she did not like Ms. Arp and continued to say she thought council member Arp was insane and needed to be medicated. As Ms.Thomas testified to her dislike of Ms. Arp she did notate she was not a phycologist.

During the course of Arp’s attorney questioning both Whitener and Thomas, Arp’s attorney went through the steps of impeachment; meaning both testified under oath saying one thing, and the attorney took them to their deposition testimony where they testified under oath to something else. In the court of law this process takes place to demonstrate to the court the credibility of the witness. Judge Christian said at the beginning of the trial the purpose was to determine if Ms. Arp had the right to vote on the rezoning request and to determine the credibility of the witnesses.

Arp’s attorney referred to prior deposition testimony being different than what Mayor Whitener and council member Thomas had testified several times, during both of their testimonies. When these actions are taken, it is done primarily to prove the credibility of the witness. Arp’s attorney, established that Mayor Whitener may have had animosity for Ms. Arp because she challenged her authority many times. He continued to establish that Mayor Whitener was a social friend of Mr. Oyer’s and took campaign contributions from him. He established Mayor Whitener’s testimony in court was different than some of the sworn testimony she had given in her deposition.

Cindy Trimble was called as a witness for Mr. Oyer’s behalf. It was established that Ms. Trimble was friends with Mayor Whitener and council member Thomas and she supported them in their reelection. Trimble testified she did not support Ms. Arp in the election. A large portion of Ms. Trimble’s testimony was deemed by Arp’s attorney as hear-say, irrelevant, immaterial, incompetent, leading or argumentative. The judge sustained most all of the objections.

Steve Oyer testified that Ms. Arp showed malice toward him because she asked him to move his vehicle off of her private property. Ms. Arp allowed Mr Oyer to park his vehicle, free of charge, on her property so he could advertise his business, the Black Sheep Restaurant. Arp testified she asked him to move the vehicle when she discovered he had used it to support her opponent in the election. Mr Oyer also testified that the removal of a city parking spaces he used to advertise his business proved Ms. Arp had malice for him. Arp testified that the parking space was removed because city employees had discovered the city parking spaces were in violation of Georgia state law. City Attorney David Syfan had confirmed to the mayor and council that the parking spaces that were within 50 feet of a railway crossing would have to be removed in order to be compliant with the law. Both Mayor Whitener and Council Member Thomas testified that they thought because the railway tracks were inactive the law did not apply. Arp however testified the state law did not have a provision in it that exempted inactive railway tracks as Whitener and Thomas had suggested. Before concluding with Mr Oyer, Ms. Arp’s attorney pointed out a statement made by Mr. Oyer in council meeting minutes that had been approved and recorded. The minutes reflected Mr. Oyer stated his project was good, and he had a vision; changes were happening and change couldn’t be stopped. Arp’s attorney asked Mr. Oyer if he was just upset because he had a vision for Blue Ridge and Ms. Arp didn’t agree with his vision, so he decided to sue her.

In closing arguments, Attorney Farnham started Ms. Arp acted in bad faith, she didn’t like Mr. Oyer, and should have abstained from voting. Arp’s attorney said Ms.Arp’s vote was consistent with her prior vote, and her vote was consistent with the staff analysis report; that did not support rezoning Mr Oyer’s residential property to commercial. Arp’s attorney said malice had not been proven. At best, testimony of Mayor Whitener and council member Thomas proved their strong dislike for Ms. Arp, rather than malice toward Mr. Oyer. Arp’s attorney said Arp had no conflict of interest because based on Georgia state law, in order to be a conflict of interest there has to be a direct financial interest. He concluded, saying Ms. Arp does not own a hotel and there is no proof of plans of a hotel. Therefore, Arp had no conflict of interest and she had every right to vote at her discretion on Mr Oyer’s zoning request.

 

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