Tuesday, October 16, 2018

Watermark Apartment Complex Development Rears Its Head Again

Unsurprisingly, the BMA meeting of July 23 was not the last we heard from the Watermark developers. On September 7, the developers filed suit against the City. 

During the July meeting, the BMA, after having granted "full" approval to the development last December, unexpectedly voted to prevent the project from going forward. The BMA voted to reject the project because of either unhappiness with the project (Massey), unhappiness with the project and actions taken by the developer (Barzizza), or simply actions taken by the developer (Owens and Gibson). Only Alderman Janda wanted to continue this project.  Recall that, per an affidavit filed by Jaime Picunko in a lawsuit that she and Phil Conner had filed against the City to challenge the removal of residential density restrictions, one of the developers had offered to pay her attorney's fees in return for her dismissal of the case. It was this "action" that caused the Mayor and some of the aldermen to believe that the developer was no longer a "trusted partner." See the following Commercial Appeal article for the full details, or click on my the above link for more of the history.

Germantown Faces Lawsuit from Watermark Developer

Here is the September court filing by the developers--  

Watermark Lawsuit 
Seeking monetary damages, the developers claim that the BMA's July 23 rejection came too late-- more specifically, after their rights to continue with the project had already vested. The lawsuit alleges in a pertinent part:

It is interesting that the plaintiff claims that the vested right came with Planning Commission approval in November, which was prior to the approval by the BMA in December.

A Tennessee Zoning and Land Use blog discusses the issue of "vested rights":

When I speak about this topic, in fact I simplify it further: the developer must have (1) a building permit, and (2) substantial construction must've taken place. Of course, the governmental authorization does not necessarily have to be a building permit, but that is generally the type of approval given; and in addition although a substantial change in position is the actual legal formulation of the doctrine, generally speaking, it takes substantial construction on the property in order to vest the rights. Simply expending monies in preparing the property, doing architectural or engineering work, or other kinds of activities, is usually insufficient.

According to a source, the builder has not been issued a building permit in the case. Also, there is obviously no construction on the property.

When the City files a response in this case, I will let the readers know.

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