Dean and Lebanon attorney Jere N. McCulloch represented Cost Enterprises in the appeal.
Dean added, "In addition, the Council’s concerns about storm water runoff were addressed by not just one engineer, but by a second engineer who reviewed the methods used by the first to calculate the means to control storm water on the property. Obviously, we can’t control the run-off from other properties, but we clearly demonstrated that on the Chestnut Ridge property, we met and exceeded local requirements."
An interesting note appeared in the last paragraph of Judge Andy D. Bennett’s opinion on the appeal noting that the council’s actions were borderline fraudulent, "One more point is deserving of note. It appears from the record that the city council may have held Cost’s PUD to some undefined, undisclosed and unanticipated standard. Councilperson (Kathy) Warmath stated at the November 21, 2006 meeting, ‘Can we talk about in this plan it says we meet city standards? I hate to tell you the City standards are very minimum [sic], and they’re not really designed for these big hills.’ The Lebanon City Council must apply the PUD standards that it has enacted in its ordinances. Applying some other undefined, undisclosed and unanticipated standard would make the council’s decision regarding the PUD illegal, arbitrary and, perhaps, fraudulent. See Harding Acad. v. Metro. Gov’t of Nashville & Davidson County, 222 S.W.3d 359, 363 (Tenn. 2007) ("In proceedings involving a common law writ of certiorari, illegal, arbitrary, or fraudulent actions include: . . . the misrepresentation or misapplication of legal standards . . . .")
Chestnut Ridge developers, Cost Enterprises, sued the City of Lebanon in 2007 after the city council denied the PUD based on drainage concerns. The city’s Planning Commission had approved the PUD based on staff recommendations, previously, however city council had deferred the matter for several months citing concerns with runoff and drainage.
The development became controversial due to the involvement of former Mayor Don Fox’s administrative assistant Debbie Jessen who worked also as a real estate agent for the developers. That led to an investigation by the District Attorney and ultimately the adoption of an ethics policy by the city.
The D.A.’s office determined that no criminal wrong-doing occurred by Jessen but made suggestions urging city council to adopt an ethics policy for employees and elected officials.
Lebanon Mayor Philip Craighead said he is concerned about the City’s position in the appeals court decision and he had several questions he’d like answered before commenting any further.
"The owners are very pleased with the decision of the Court of Appeals and look forward to moving ahead with the development," Dean said.
Costs of appeal have been assessed against the City of Lebanon and according to McCulloch "at this point attorney fees are all that are at issue in this matter."
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