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 were expected to put

their heads together Friday 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

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 by the

subdivision and an attached commercial development being built by developer

Phillip Seay Sr., they pointed out.

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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