Mountain Park Residents Lash Out At City Council

Following a stinging defeat in Mountain Park’s five-year litigation over its lake, residents lashed out at the City Council and begged for an end to the litigation and staggering attorney’s fees.

“For five years we’ve chased a dream, maybe a pipe dream, maybe a Clean Water Act dream,” said George Menden, a lawyer. “We should not continue this folly.”

Georgia Supreme Court Revives Fulton County Taxpayers Foundation Lawsuit

The Georgia Supreme Court overturned a lower court’s dismissal of the Fulton County Taxpayers Foundation‘s legal challenge to tax breaks granted by the County to six large developments in Buckhead and Midtown that include The St. Regis Buckhead, The InterContinental Buckhead and The Mandarin Oriental Hotel Midtown.

The Fulton County Board of Assessors assigned to these development projects a “50 percent valuation formula” to determine the fair market value of the property.  Under the formula, the board agrees to initially value the estate at 50 percent of its overall fair market value and then increase the value by 5 percent a year over the value of the lease.

The lawsuit alleges that this valuation formula is unconstitutional and illegal because it allows the developers to pay less than their fair share of property taxes because the estates were initially appraised at less than fair market value.

The trial court had dismissed the lawsuit without hearing any evidence.  The case now proceeds to trial.

You can find a copy of the Court’s decision here.

Mountain Park Technically Wins, But Still Loses

After nearly five years and $2 million spent in legal fees, a jury awarded the tiny north Fulton County town only $45,000 in its battle against upstream developers over silt in its lake.  Mountain Park had sought upwards of $3.8 million in damages, but the jury heard evidence that silt had long been a decades-long problem complained about by the City.  The jury refused to award one cent towards attorney’s fees.

Mayor Jim Still had this to say on the city’s website:

The jury in the Lakes litigation trial found two out of four defendants guilty of Clean Water Act violations but did not determine to award the amount the City of Mountain Park was requesting. $45,000.00 was the amount of damages awarded the city. The Judge will, in the coming weeks, also be considering what additional remedies and penalties to award against the Defendants found to have violated the Clean Water Act. The City Council will be considering this outcome and a town hall meeting will be held to review the verdict.

Mountain Park Legal Fees Top $2 Million In Fight With Developer

The City of Mountain Park has spent $2 million – more than four times its annual budget – in legal fees fighting upstream developers over silt and sediment in the city’s lakes and wetlands due to development in Roswell.  The north Fulton County city of just over 500 people has waged a federal lawsuit war against the developers since 2005.

The fight headed to trial last and is expected to last two weeks and undoubtedly cost the little city more money in legal fees.  The City has up on its website a summary of the first day of trial and directions to the courthouse.

EPA Will Regulate Carbon Dioxide

The Environmental Protection Agency now concludes that greenhouse gases pose a danger to human health and the environment, paving the way for regulation of carbon dioxide emissions from vehicles, power plants, factories refineries and other major sources.

The move gives President Obama a significant tool to combat the gases blamed for the heating of the planet even while Congress remains stalled on economy-wide global warming legislation.

The Obama administration has signaled its intent to issue a so-called endangerment finding for carbon dioxide and five other greenhouse gases since taking office in January.

Two years ago, Fulton County Superior Court Judge Thelma Wyatt Cummings Moore controversially concluded the same thing Friends of the Chattachooche, Inc. and Sierra Club v. Dr. Carol Couch, Director Environmental Protection Division, Georgia Department of Natural Resources and Longleaf Energy Associates, LLC, Superior Court of Fulton County, Georgia, Civil Action File No. 2008CV146398 in a challenge to a coal-fired power plant to be built in Early County, Georgia on the banks of the Chattahoochee River south of Columbus. 

The proposed coal plant was abandoned in early 2009.

Supreme Court To Decide Who Owns The Beach

Today, the Supreme Court of the Unitied States will hear oral arguments in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the Board of Trustees of the Internal Improvement Trust Fund, Walton County and City of Destin, Docket 08-1151.  The case will decide whether beach restoration constitutes an illegal taking of private property.  

At the heart of the case is the restoration of 6.9 miles of beach in Destin, Walton County, Florida that resulted in 75 feet public beach in front of the 5 beach-front property owners that make up Stop the Beach Renourishment, Inc.  The renews the debate of public vs. private beaches.  The complaining property owners claim Florida used the excuse of beach renourishment to illegally take land for the creation of public beach without just compensation.

You can review the brief of Stop the Beach Renourishment, Inc. here and Florida’s response brief here.  You can find all merit and amicus briefs here.

Twenty-six states joined together to file an amicus brief in favor of Florida.  The case has also attracted amicus briefs from the United States and a number of municipal and nonprofit organizations.

A decision is expected before the end of June, 2010.

Court of Appeals Affirms Municipality’s Right To Permanent Injunction Enjoining Code Violations

The Georgia Court of Appeals recently affirmed the right of municipalities to obtain a permanent injunction enjoining code violations.  The Court held that a permanent injunction requiring a homeowner to remove trash and inoperable vehicles from his property and enjoining him from violating property maintenance and health codes in the future did not serve to improperly enjoin prosecution of criminal offenses, but instead merely gave the municipality an additional avenue to enforce its ordinances against the homeowner.  The Court also rejected the argument that an injunction is impermissible to enjoin code violations because the municipality has an adequate remedy at law through criminal prosecutions where the facts show a repeated and consistent code violations.

Keep reading for GZB’s summary of Jacobs v. Chatham County, Georgia, No. A09A0128, decided December 2, 2008.

Georgia Court of Appeals Sets Aside Rezoning Decision Made Without Site Plan Where Local Zoning Ordinance Required Site Plan And Consideration of Specific Criteria

The Georgia Court of Appeals reversed a Banks County rezoning decision as violative of its zoning ordinance where its county commission approved a rezoning application that did not include a site plan.  The Court of Appeals held that the local zoning ordinance required county officials to review rezoning applications based on specific criteria, such as the land use, development suitability, and the impact of the rezoning on nearby property. The Court of Appeals noted that without a site plan, officials had little information about the rezoning applicant’s actual proposed use and how that use would affect the property, hindering their ability to analyze the required criteria.

The Court of Appeals held that the county officials neglected to obtain the required site plan from the rezoning applicant, thus ignoring mandatory zoning requirements and depriving themselves of key information relating to the proposed development.  The Court of Appeals reversed the trial court and remanded the rezoning decision to the county commission for further consideration in compliance with its order.

Keep reading for GZB’s summary of Harden v. Banks County, 294 Ga. App. 327, 670 S.E.2d 133, decided November 8, 2008.

Coal Plant Proposal At Issue In Fulton County Superior Court Decision Concluding CO2 Regulated by Clean Air Act Abandoned

The proposal for a new coal power plant in Early County Coal appears to be dead.  Dynegy Inc., the Texas-based energy company that proposed what would’ve been Georgia’s first new coal power plant in 20 years, announced today that it has pulled out of the project. 

From a company press release:

Dynegy Inc. (NYSE:DYN) today announced that it has entered into an agreement with LS Power Associates, L.P. to dissolve the two companies’ development joint venture. Under the terms of the dissolution, Dynegy will acquire exclusive rights, ownership and developmental control of all repowering or expansion opportunities related to its existing portfolio of operating assets. LS Power will acquire full ownership and developmental rights associated with various “greenfield” projects under consideration in Arkansas, Georgia, Iowa, Michigan and Nevada, as well as other power generation and transmission development projects not related to Dynegy’s existing operating portfolio of assets.

The reason?

The development landscape has changed significantly since we agreed to enter into the development joint venture with LS Power in the fall of 2006,” said Bruce A. Williamson, Chairman, President and Chief Executive Officer of Dynegy Inc. “Today, the development of new generation is increasingly marked by barriers to entry including external credit and regulatory factors that make development much more uncertain. In light of these market circumstances, Dynegy has elected to focus development activities and investments around our own portfolio where we control the option to develop and can manage the costs being incurred more closely.

Litigation over the proposed coal plant generated national headlines and new law when a Fulton County Superior Court Judge concluded Carbon Dioxide was regulated by the Clean Air Act.  That decision remains on appeal before the Georgia Court of Appeals.  It is unclear how the abandonment of the coal plant proposal will impact the pending litigation.

GZB Publisher Wins at Georgia Supreme Court

GZB creator and publisher Kyle Williams recently obtained a reversal from the Georgia Supreme Court of a trial court’s dismissal of a rezoning challenge for failure to state a claim and for failure to join indispensable parties. 

In Stendahl et al. v. Cobb County et al., the Georgia Supreme Court reversed the dismissal by the Cobb County Superior Court of a neighbors’ challenge to a rezoning decision.  The Cobb County Superior Court had held that the neighbors had not stated a claim upon which relief could be granted based solely upon the complaint.  In reversing the dismissal, the Georgia Supreme Court held that the trial court misapplied the standard of review of a rezoning decision. 

In what appears to be a new definition, the Georgia Supreme Court also reversed the trial court’s dismissal for failure to join indispensable parties and explicitedly defined who were indispensable parties in a neighbor’s challenge to a rezoning decision. 

When the owner of the property for which re-zoning is sought is not the applicant for re-zoning but has entered into a contract for the sale of the property with the re-zoning applicant, which contract is contingent upon the applicant obtaining re-zoning, the owner does not fit within the definition of  “indispensable party” because the case could be decided on its merits without prejudicing the rights of the owners since the re-zoning applicant is a party and presents a thorough case on behalf of itself and, ultimately the owner. 

Stendahl et al. v. Cobb County et al., Case No. S08A1395, decided on October 27, 2008.