COVINGTON - Commissioners granted a variance to a commercial property owner who is in violation of the county's buffer ordinance Tuesday night, and a homeowner impacted by the decision said it's proof that local government doesn't look out for the little guy.
Chugh Shopping Center at 3611 Salem Road was built in 2005 with only a 9-foot buffer separating it from homes that back up to it on Somerset Drive.
The county's ordinance requires a 75-foot transitional buffer between commercial and residential properties.
Development plans for the property were approved in 2000.
The error was apparently not caught by property owner Jawahar L. Chugh, the project engineer or county planning staff, according to Chugh's attorney, James Alexander.
The county maintains that it is the developer's responsibility to be in compliance with the ordinance.
After a homeowner complained, Chugh filed for a variance to reduce the required 75-foot buffer to allow the existing structure to remain, Alexander said.
The Newton County Board of Zoning Appeals denied the variance in January, and Chugh appealed to the Board of Commissioners.
Attorney Daniel Digby, representing homeowners Christina Tunstall and Stewart and Wanda Reese, said only a chain link fence that is in disrepair and a row of dead Bradford Pear trees separates his clients' homes from the shopping center.
The center is home to the International Merchandise Market, where law enforcement conducted a raid in December that resulted in numerous arrests and the seizure of thousands of dollars in pirated goods.
The homeowners have experienced problems with trespassers, litter and noise and lighting disruption, Digby said.
County Arborist Debbie Bell proposed a plan to mitigate the impact to the residents, including planting 6-foot-tall trees; removing the dead Bradford Pears; removing the existing chain link fence and replacing it with an 8-foot-tall black, vinyl coated chain link fence; and creating an approved landscape plan.
But Digby said the plan wasn't enough to make up for the loss in property value suffered by his clients.
An appraiser estimated Tunstall's property value has diminished by $16,000, and the Reeses' by $18,000, since the development went in, he said.
Tunstall has lived in her home since 2001, while the Reeses have lived there since 1996.
"They were in their residential homes, and they expected to be protected," Digby said. "We're talking about a 75-foot buffer down to 9 feet. Regardless of how it's planted, the property cannot be mitigated of that impact."
But Alexander said the plan by Bell was the best possible resolution.
"It's patently obvious to me that no judge would give an order to tear down a multimillion-dollar building because it's in violation of a few feet of the buffer," he said.
After questioning from County Attorney Tommy Craig, Digby acknowledged that his clients would like an economic settlement from Chugh, but had hoped to keep the matter out of court. He said they have been attempting to reach a resolution with Chugh since January 2007.
District 2 Commissioner Earnest Simmons made the motion to approve the variance, and it passed 4 to 1, with District 1 Commissioner Mort Ewing opposing.
Tunstall said on Wednesday that by approving the variance, commissioners have hampered her chances in court if she decides to pursue damages against Chugh.
"I was trying to motivate him to settle with me," she said.
But now, "He'll have more power in court. He'll say, 'The county gave me this (variance).'"
The vote particularly stings, she said, because she believes the county has ignored her rights as a homeowner.
"Basically, the county has ignored me and brushed me off. They've held Mr. Chugh's hand through this entire process," she said.
Tunstall said she has already paid $5,000 in attorney's fees in her attempts to keep the matter out of court, but that's where the dispute is likely headed now.
"He's left us with no other option. I've done everything to try and get the county to protect me, and they haven't," she said.
Chugh was recently found guilty of violating the county's ordinance in Magistrate Court, but fines were suspended pending the outcome of the variance request, according to a source in the County Attorney's Office.
Crystal Tatum can be reached at firstname.lastname@example.org.