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.

A final hearing

in the county's lawsuit against Tyrone and the city of Fairburn to halt

an agreement to provide sewerage to the subdivision is set for Jan. 8

in Fulton Superior court.

If Fayette

County wins its lawsuit, the home 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 last Wednesday on Fayette County's motion for a temporary injunction,

to halt plans for the sewer deal pending the final hearing.

Russell denied

that injunction, saying Wieland stood to lose far more if it were granted

than the county would lose if it weren't, but offered lawyers on both

sides a chance to argue the case in a final showdown Jan. 8, so the matter

can be settled before residents start moving in.

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.

Tyrone officials

say they're just trying to make the best of a bad situation, and have

no plans to expand the sewer service into unincorporated Fayette.