Winkopp, Dukes suing Clemson residents.......

May 28, 2014, 1:17 PM

I support the residents of Clemson on this.

Winkopp, Dukes file countersuit against residents
May 28, 2014 By GREG OLIVER SENECA THE JOURNAL
CLEMSON — Less than a month after a group of Clemson residents filed a civil action lawsuit seeking to reverse the Board of Architectural Review’s decision in March to approve a high-rise project on College Avenue, the defendants have fired back.
Documents filed in the 13th Judicial Circuit Court of Common Pleas state that attorneys for Tom Winkopp and William E. Dukes have asked the judge for a protective order in which discovery would not be allowed in the case.
Greenville attorney Thomas W. Traxler, in his protective order motion, states that any efforts by the petitioners to seek discovery in the matter “are futile and pointless and certainly would not reasonably be calculated to lead to discovery of admissible evidence.” Traxler added that Winkopp is “alleging abuse of process against each of the petitioners on the grounds that the petition and appeal” are “for the ulterior motive of causing economic damage” to Winkopp and his project.
Dukes asked the court that the petition filed be “dismissed with costs,” while Winkopp is asking the same, as well as being granted “actual and punitive damages against each of (the petitioners) jointly and severally” for his counterclaim that there was “abuse of process.”
In mid-April, a group of local residents named Winkopp, Dukes, the City of Clemson and the Clemson Board of Architectural Review in its suit regarding the BAR’s decision to approve the Dukes Center project. Not only did they say the project was out of scale with the community in that it would overshadow the village atmosphere of College Avenue, create additional traffic congestion, noise pollution and abut existing neighborhoods, they were especially angry at the city and BAR for violating free speech rights by not allowing them to express input at public meetings.
The original suit adds that if the court finds the certified record insufficient for review, that its decision be remanded to the BAR “for rehearing.”
Derek Hodgin, of Clemson, the spokesman for the petitioners, said they are “obviously disappointed” that Winkopp “elected to sue citizens of Clemson for simply appealing the decision of the BAR.”
“The appeal that we filed is specifically provided for by the legislature, and we have limited our appeal to the relief the legislature offers through this process,” Hodgin said. “The issue on appeal is merely whether the BAR acted lawfully in approving Mr. Winkopp’s project. If so, then our appeal ends. If not, then every citizen of Clemson benefits from having the project lawfully reconsidered by the BAR, whether it is ultimately approved or not.”
Hodgin said Winkopp’s counterclaim “is challenging the rights of average citizens and the public at large to give their input on his projects and to ensure that they are properly reviewed and approved.”
“That itself suggests a lack of confidence, on the part of Mr. Winkopp, that his projects can stand on their own throughout the entire approval process,” he said.
Winkopp said he could not comment on the case. However, in his motion for a temporary or permanent injunction, Traxler said the College Avenue property in question “was properly rezoned, and no appeal was taken for the rezoning,” therefore entitling Winkopp “to all uses of the property as allowed by the rezoning classification of the property.” Traxler called the petitioners’ appeal “wholly without merit and frivolous” and said his client believes the petitioners “are aware that their petition is frivolous and without merit.”
Furthermore, Traxler said his defendant believes the appeal was filed “for no purpose other than attempting to sabotage the project and to prevent (Winkopp) from developing his project in accordance with his plans.” The attorney said the ulterior motive of the lawsuit or petition isn’t for a legitimate review and appeal of the decision of the BAR but “instead done with the ulterior motive of delaying or killing the project, which they could not accomplish before Clemson City Council with the rezoning or before the BAR.”
But Hodgin disagrees, adding that the petitioners have moved to dismiss Winkopp’s counterclaim “on the belief that it has no merit whatsoever.” He added that the BAR’s recent suggestion that it will review procedures for future public input “is a direct result of our appeal.”
“This action serves to validate our effort, while invalidating Mr. Winkopp’s counterclaim that our actions are frivolous,” Hodgin said.
Hodgin said Winkopp’s counterclaim hasn’t stopped the group’s legal fight, but, if anything, “it has empowered us.”
“Mr. Winkopp should not expect for the City of Clemson, or its citizens, to simply roll over and accept every project that happens to meet current ordinances,” he said, adding, “Projects that make sense and are in tune with the community will be welcomed and supported.”
The suit states that Winkopp, working with Dukes and Monica Zielinski, who own several parcels of land located at 392 College Avenue, 390 College Avenue, 105 Finley Street and NA College Avenue in Clemson, filed plans with the city to construct a multi-family, mixed-use development at that location.
The parcels were originally zoned as follows: 392 College Avenue, CP-1, neighborhood business district; 390 College Avenue, CP-1; 105 Finley Street, RM-3, multi-household residential district; and College Avenue, CP-1.
On Oct. 14 of last year, the suit said Winkopp made an initial request to combine Dukes and Zielinski’s parcels of land into a single parcel rezoned as C, General Commercial. On Nov. 18, Clemson City Council heard the request on first reading, providing an opportunity for the public “to provide relevant input.” But the suit states that, at the time, “no plans or any indication of the ultimate use of the property had been identified, rendering members of the public completely incapable of providing meaningful input.”
During that same meeting, City Council approved first reading of the rezoning request and amended a request to exclude the Zielinski property. Council also approved rezoning of the parcels on second reading Dec. 2.
The suit adds that when the plans were finally made available to the public, the project was brought before the BAR on Jan. 7 for conceptual review since it was located in an architectural overlay district. At that meeting, members asked for more information from the architect to be considered at the next meeting.
The suit further states that in January of this year, BAR members and City of Clemson representatives notified petitioners they were prohibited from contacting members of the BAR to discuss the project “on the erroneous basis that the BAR’s consideration of the project as a ‘quasi-judicial’ body.” The suit alleges that action “was a purposeful attempt by the City of Clemson and the BAR to quiet petitioners’ opposition to the project” and that the BAR “failed to provide petitioners or the public with a mechanism to provide input.”
The suit adds that without adequate notice to the petitioners and “despite petitioners’ requests for a meaningful opportunity to be heard or any information related to alleged violations of City of Clemson zoning ordinances,” the BAR moved forward with consideration of the project March 4. That, the plaintiffs said, represented a full month prior to the previously announced date of April 1.
goliver@upstatetoday.com | (864) 973-6687
Follow on Twitter @JournalGO

Message was edited by: 1983Grad®