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Supreme Court rules against Braselton in zoning battle

POSTED: May 6, 2009 12:23 a.m.

BRASELTON — A developer’s complex lawsuit against Braselton received some clarity Monday.

The Georgia Supreme Court ruled that Braselton could not enforce its zoning ordinance outside town limits along a stretch of state highway that borders Century Center at Braselton LLC’s development.

Century Center filed a brief with the Georgia Supreme Court on Jan. 26, appealing the results of previous rulings made in Jackson County’s Superior Court in November 2007, August 2008 and October 2008.

After hearing oral arguments on April 13, the Georgia Supreme Court affirmed and reversed part of the lower court’s judgment.

In an opinion written by Justice George H. Carley and affirmed unanimously, the court said Braselton could not enforce its overlay zoning ordinance "for the improvement of property located outside the Town’s corporate limits."

Although the court agreed with Century Center’s challenge to the zoning issue, it upheld penalties imposed in Jackson County Superior Court in August 2008 on the development’s attorneys for misconduct committed during trial. At the time, the development was represented by Barry Armstrong and Jeremy Moeser of McKenna Long & Aldridge.

Previously, Century Center’s attorneys were ordered to pay Braselton $17,980.57 for attorney’s fees and costs within 15 days or the trial court would dismiss the lawsuit with prejudice. The attorneys failed to pay the fees and the case was dismissed in October 2008.

The Supreme Court upheld the lower court’s finding that the development’s "attorneys knowingly and willfully presented an inaccurate and false survey" to mislead the court, according to Carley’s comments.

However, the Supreme Court ruled that while the attorneys should have paid the fees, the case should not have been dismissed.

Mike Bowers, Century Center’s new attorney, with Balch & Bingham LLP in Atlanta, said his client is "elated" about the ruling.

"On the main issue of whether the town of Braselton can force a party seeking zoning to do something outside the city limits, the answer’s ‘no’," he said.

Century Center has filed two lawsuits against Braselton, one in January 2007 and the second in June 2008. The Supreme Court’s ruling was in response to the first lawsuit.

Both parties still are awaiting a decision by Jackson County Superior Court Judge David Motes on the merits of the second lawsuit.

In 2005, Braselton created an overlay zoning district requiring certain improvements along Ga. 211, including gutter widths, minimum landscape strips, multiuse paths, streetlights and trees.

Century Center, a retail and office development, is located on Ga. 211 near Beaver Dam Road and just south of Interstate 85. Its 26-acre property was annexed into Braselton in 2004.

Dick Gray, a managing partner with Gray Properties, said in January that the town’s limits end at the highway’s right-of-way, and for that reason, he did not want to construct a sidewalk along the Center’s 1,500 feet of Ga. 211 road frontage.

Gray Properties, a developmental group based in Buford, built Century Center.

Braselton Town Attorney Kelly Hundley of Henderson & Hundley P.C. in Decatur said while the town cannot appeal the case — the Georgia State Supreme Court is the highest court in the state — the court does have a provision where it could reconsider the case, which is an option the town will consider.

"We’re still studying the decision and trying to determine what the town’s options are or may be," he said.



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