While prospective
home buyers in a Tyrone subdivision are packing their belongings and preparing
to move in, lawyers and a Fulton County judge are still trying to determine
whether they'll be able to use the bathrooms.
Lawyers are
expected to put their heads together today and come up with a strategy
to bring the court case to a conclusion before the first home buyers'
closing date of Jan 15.
If Fayette
County wins its lawsuit against the town of Tyrone and the city of Fairburn,
the buyers' plans will be brought to a screeching halt, according to developers.
The county
is asking Fulton Judge Constance Russell to nullify an agreement in which
Tyrone will buy sewer capacity from Fairburn and sell it to John Wieland
Homes for the Southhampton subdivision.
"We would
have to stop building homes and marketing homes [if the sewer agreement
is stopped]," testified Edward Woodland, Wieland's vice president
for the south Atlanta region. Woodland was called as a witness during
a hearing Wednesday on Fayette County's motion for a temporary injunction,
to halt plans for the sewer deal pending a final hearing in the matter.
Russell denied
that injunction, but offered lawyers on both sides a chance to argue the
case in a final showdown Jan. 8, so the matter would be settled before
residents start moving in. The lawyers are trying to decide whether that's
necessary, or whether they can make their final arguments on paper.
Woodland said
the company has spent $9 million over the last three years in planning
the subdivision and beginning construction. Plans are for 320 homes on
as many acres, averaging over $300,000 in price, he said. But with plans
for open space and amenities, the homes will actually be on lots as small
as a third of an acre, so septic tanks are not an option, he added.
Thirty-seven
homes are under construction, with 16 of them under contract, Woodland
said. Three homes are scheduled to close in January, he added.
In his arguments,
assistant Fayette County Attorney Dennis Davenport said another remedy
exists the company can build a small sewer plant just for the subdivision.
Lawyers for Tyrone and Wieland argued that the subdivision is in a sensitive
area environmentally, so a spray application sewer plant there is not
a good option.
Originally,
Wieland had planned to build a sewer plant for the subdivision, a plan
that caused the Tyrone Town Council to deny Wieland's request for rezoning.
But a court overruled that decision.
Tyrone officials
then worked out the agreement to purchase sewer capacity from Fairburn
as a way to avoid having Wieland build the plant.
The key question,
as articulated by Judge Russell during Wednesday's hearing, is: "Who
owns this sewer?"
Fayette maintains
that, because Fairburn would be treating the sewage, the city would be
providing the sewer service. Since the city's charter doesn't allow it
to provide sewer service outside its borders, that would be illegal, Davenport
argued.
Lawyers for
the defendants argue that, because Tyrone will own the collection system
for the sewage as well as the line connecting it to Fairburn's system,
Tyrone will be the provider of sewerage. And Tyrone's charter does allow
it to provide sewer service outside its borders.
In this instance,
though, the town has no plans to do so, the lawyers said. The 250,000
gallons a day of capacity the town will buy from Fairburn is totally absorbed
County leaders
are fighting the agreement, they have said repeatedly, because they fear
the existence of a sewer line running through unincorporated Fayette County
will encourage future developers to tap into the sewerage and build high-density
neighborhoods. The county's long-range plans for that area call for minimum
building lots of one acre.







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