Staff Photo: Keith Farner Attorney Laurel Henderson, right, representing the city of Suwanee, presents arguments on Monday to the justices of the Georgia Supreme Court in appealing a trial judge's ruling in a case involving Settles Bridge Farm LLC.
ATLANTA -- A four-year-old dispute between the city of Suwanee and a land development company reached the Georgia Supreme Court on Monday, as both sides presented their arguments.
The city appealed a January ruling from a Superior Court judge that upheld a jury's recommendation from August of last year that concluded that city officials enacted a moratorium in 2008 specifically to stop landowners of Settles Bridge Farm LLC from selling 36.5 acres of undeveloped land to Notre Dame Academy. The transaction was estimated at $8 million.
A court document said City Manager Marty Allen sent an email on Feb. 27, 2008 that stated that "Suwanee could 'head this off' and in order to do so the city manager suggested, 'we amend our zoning ordinance to require a special-use permit."
Both sides were allotted 20 minutes to present their arguments before the justices. After the session, attorneys from both sides declined to give their reaction to the proceedings.
Suwanee attorneys contend that the trial court made four errors, and the case shouldn't have gone to trial.
The city attorneys challenged a $1.8 million decision to the developers ordered by a judge earlier this year that involved a land deal at Settles Bridge and Moore roads.
In her arguments before the Supreme Court justices, Suwanee attorney Laurel Henderson said the representatives from Settles Bridge Farm LLC should have applied to the city for relief before pursuing a lawsuit.
Henderson added that the city didn't have a chance to approve a special-use permit, which could have conditions to go with it.
Henderson said schools were never singled out in the stipulations of the permit amendment, which was "use neutral" and had an intensity threshold of 20,000 square feet.
The court also erred by improperly inquiring into the city's subjective motives for enacting the amendment, Henderson said.
In her opening remarks to the justices, Henderson asked for reversal of the trial court ruling because the case is controlled by existing and established law.
"The problem with this case is the actions that were taken by the City Council of Suwanee, Ga., were all clearly within the fence," she said.
Henderson also added that Settles Bridge Farm LLC previously submitted plans for a 41-lot subdivision on the property, including seven variances and an administrative waiver, which were all granted by the city.
"This appellee had a viable economic use for his property that his own performance showed was going to work," Henderson said. "There was no evidence at this particular time that that subdivision could not go forward."
Henderson added that the viable use of the property was not impacted by the moratorium or special-use permit, but the Settles Bridge owners decided to not go forward.
"It's not a taking under this court's precedent," she said.
But then the developers were approached by Notre Dame Academy.
"(They) voluntarily abandoned efforts and decided they didn't want to go forward," Henderson said. "The reason was because they were approached by this private school, who said 'We'd like to buy your land.' They looked at their pro forma, which showed them making money. ... They looked at a contract that said they could make $8 million without turning a spade of dirt. If you're a developer, what's not to like? It's great. You reap the profit, you don't have the risk."
Henderson added that substantial detriment is a legal issue, like public policy, not a fact issue, and because of that, the trial court judge didn't give the jury proper explanation and guidance.
"The judge gave that to the jury ... without giving the jury the law that defines what that means," Henderson said. "They found, and answered those two things correctly, because they believed the motive was a proper consideration. Then the judge turned around and said that was a finding of fact, when it's actually a legal conclusion, not a fact, and that's clearly erroneous. So we never got a fair shot."
Henderson concluded that the original issue could have been resolved in 60 to 120 days at the local level with an application for a special-use permit.
Settles Bridge attorney Gerald Davidson Jr. said his client was harmed by the amendment, and the trial court properly found that Settles Bridge suffered a "significant detriment."
Davidson said the 24-page trial court ruling was "well reasoned" and contained facts that cannot be ignored unless they are clearly erroneous, which they aren't.
"They are basically undisputed," he said.
Davidson said the city officials are attempting to be shielded from liability because they put "magic words" in the amendment they enacted, referring to the health, safety, morality and welfare of the city's residents.
"Their attitude is, 'Because we say that, we're shielded from any inquiry," Davidson said. "Their justification (to prohibit development) was after-the-fact, and it rings hollow, when you look at the evidence."
Davidson said it would have been "futile" for his client to submit an application for a special use permit.
Davidson also pointed out the 41-acre subdivision applied for in late 2007, would now come above the thresholds of the amendment the city enacted in May 2008.
Davidson contends that the subvision was above the thresholds of developing more than 20,000 square feet, clear more than five acres of land, or build more than seven lots.
"If they were concerned about their comprehensive land-use plan, and be able to protect neighborhoods against large developments in residentially-zoned property, that did not trigger any concern on their part, just months before," he said. "Bells didn't go off, alarms didn't go off, and say anything they needed to do until (city officials) found out about the Notre Dame Academy contract."
About that same time, Davidson said Ed O'Connor, a member of Notre Dame's Board of Trustees, met with Suwanee Planning Director Josh Campbell about the school relocating from Duluth to Suwanee.
O'Connor's stipulations were the land had to be more than 15 acres, and the school didn't want to go through a rezoning process."Mr. Campbell showed him this tract; that's how Notre Dame learned about it," Davidson said. "The planning director said, 'This fits the bill for you.'"
In a conversation with Davidson, Justice David E. Nahmias asked Davidson about the issue of futility.
"My understanding is the city put in a process that you would have to go through," Nahmias said. "But there was never at any point a denial of exactly what your client wanted to do. There's nowhere you can point where the city said, 'You may not build on this property.'"
When asked by Nahmias to cite a case where a party never received a ruling from the government, Davidson referred to a 1996 case, the city of Albany v. Oxford Solid Waste Landfill Inc. where Davidson said Oxford applied for a development permit and the city engineer went to the mayor and council and said they qualify.
"He was given directions, 'Don't issue the permit,'" Davidson said.
The Court ruled that, "it would have been futile for Oxford to have pursued the only avenue of appellate relief available to it before seeking mandamus."
Nahmias said the local government had denied the permit the day before the mandamus was filed.
"It's hard to argue much about futility when the local government had already denied what you're saying they could go get," Nahmias said.
Davidson also cited two other cases to prove his point to Nahmias about futility, then reiterated the timeline of events leading up to enacting the amendment to the permit.
"After five days of seeing the attitude of the city, and how quickly they responded to those emails, how they treated these people all along the way, and the issue of futility was clearly stipulated to be an issue of fact," Davidson said. "There was a strong, strong, emphatic indication that it would be a useless, futile act, and they would have denied (the permit)."
In the current term of the Supreme Court, justices have until March to announce a ruling.