In a letter hand delivered to the Metro Planning Commission late yesterday afternoon, developer Tony Giarratana made a formal request for a July 23rd rehearing for the May Town rezoning vote held last month. Citing the late hour, tired commission members and confusing procedural irregularities that preceded the June 25th vote against his proposed $4 billion dollar development, Giarratana wrote that "all of this irregularity...adversely impacted the process and served to confuse its outcome, blur the intent of the body as a whole, and undermine the public's trust and confidence."
The request comes at the same time that Nashville Business Journal reports
that Giarratana has once again defaulted on the loan for the Signature Tower site, home of the proposed 70-story skyscraper that would be the largest in the Southeast, if it ever gets built. Interestingly enough, the $1.4 million payment due to Wachovia is nearly the same amount Giarratana reportedly received
from Jack May in lieu of getting the 600-acre property in Bells Bend rezoned.
Metro Planning Department public information officer Craig Owensby says they're reviewing the request now, but can give no further details. Full text of Giarratana's letter after the jump...
Councilmember Jason Holleman, who knows of such things, offers this rebuttal:
Mr. Giarratana's request fails to articulate a sufficient basis for Metro Planning Commission ("MPC") rehearing under the Rules and Procedures of the Metro Planning Commission ("the Rules"). Rule VI(K) of the Rules requires that the MPC find that 1) conditions have changed since the original hearing or 2) new information is available that was not previously available.
Mr. Giarratana's primary basis for seeking a rehearing seems to be that the Board acted improperly in its procedural conduct when it made its decision. A challenge of that nature should be pursued in a Writ of Certiorari action in Davidson County Chancery Court, not in a Request for Rehearing at the MPC.
Dear Chairman McLean and Executive Director Bernhardt:
On June 25, 2009, the Commission held a rather lengthy public hearing and cast several votes concerning the Scottsboro/Bells Bend Detailed Design Plan Alternative development Area policy ("ADA") and Specific Plan Zone Change Application ("SP"), submitted by Bells Landing Partners, LLC ("Applicant"). On behalf of the Applicant, I respectfully request a July 23, 2009, rehearing of the Commission's disposition of the ADA and SP.
Please understand that this request is not made lightly. Indeed, taking into consideration what transpired during the Commission's deliberations, and given the eventual outcome of that process, I believe fairness, fundamental due process principles, and the Commission's own guiding rules and procedures weigh heavily in favor of a rehearing.
As you recall, after about six hours of meeting and public hearing the gavel fell and, at around 10:00 in the evening, the first vote was called. During the ensuing 45 minutes of motions, debate and voting it became apparent to many in attendance that several procedural irregularities most likely undermined the entire voting process. To be sure, the late hour had an obvious impact on the Commission members expressing such sentiments as "It's late," "I'm tired," "Don't confuse me," and "It's confusing," all the while rubbing their eyes and shaking their heads. Many in the room that evening certainly shared these frustrations.
Unfortunately, what occurred following the public hearing proved confusing, conflicting, and inconsistent. Some of the more apparent procedural errors include negative and double-negative motions, a main motion that incorrectly presented substantially the same question as the one immediately preceding it, out of order procedures, improper interruptions, inappropriate characterizations, and several inconsistent and ambiguous votes.
When all was said and done, the irregular procedures employed by some Commission members may have had an adverse impact on the ultimate outcome of both the hearing and the vote. The procedures leading up to the many votes and the votes themselves clearly violated the Rules and Procedures of the Planning Commission and Robert's Rules of Order, both instrumental and decisive in governing and guiding the procedural due process aspects and requirements of any public hearing and deliberative body. In fact, the three votes which followed the first of the two motions on the ADA (i.e., the double-negative motion) was arguably an affirmative motion with an affirmative result approving the ADA which, in turn, would have led to approval of the SP.
I respectfully submit that all of this irregularity, some examples of which are referenced above, adversely impacted the process and served to confuse its outcome, blur the intent of the body as a whole, and undermine the public's trust and confidence.
Additionally, in an effort to respond to the concerns expressed by the Commission regarding the density of the SP, Applicant agree to reduce the density of the SP. Options for reducing density, at the election of the Commission, may include (1) deleting Phase V, or (2) reducing the total square footage of commercial space and the number of residential units and hotel rooms by 15%.
To maintain the integrity of the process, to instill public confidence, to ensure the Applicant is guaranteed its fundamental due process rights, to promote a concept of basic fairness, and to correct the procedural errors that occurred throughout the evening, Applicant requests a new vote on the ADA and the SP. Under the circumstances, Applicant does not feel a new public hearing is required (both having been properly closed by the Commission) but is agreeable to a rehearing if deemed necessary or preferred by the Commission to clear up what is tantamount to a very clouded record. Thank you.