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Modular home lawsuit still unresolved

POSTED: May 10, 2008 5:00 a.m.
Tom Reed/The Times

Renee and Cy Fanguy, front, walk through the dining room area of the modular home on a tour by Chance Jones.

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After three years, there has been no final decision on whether Gainesville officials violated Grant Smereczynsky’s civil rights by not allowing him to complete construction on a modular home within the city limits.

In the three years since Smereczynsky was ordered to stop construction on a home in the Waters Edge subdivision, a lawsuit he filed against the city has made an interesting journey, appearing in Hall County Superior Court three times and United States District Court twice.

Most recently, the case was remanded back to Superior Court by federal Judge William O’Kelley.

Yet there is still no resolution as to whether city officials acted within their rights or the city’s zoning ordinances are discriminatory to Smereczynsky’s profession.

And the modular home Smereczynsky started building in March 2005 still sits unfinished on Waters Edge Drive, its fate in limbo as his lawsuit bounces from one jurisdiction to the other.

But in his order more than one month ago, O’Kelley may have assured that the years-long legal bout is in its final round.

O’Kelley, in an order signed on March 31, implied that Dana Maine, the attorney representing Gainesville, was attempting to keep Smereczynsky from presenting his argument that the city violated his rights to practice interstate commerce.

Maine, an attorney with the Atlanta firm Freeman, Mathis and Gary, had a case that Smereczynsky filed in superior court in December 2007 removed to federal court in late January, based on the fact that Smereczynsky’s argument that the city had violated his right to practice interstate commerce — a right guaranteed in the U.S. Constitution — was an argument in which the federal courts had original jurisdiction.

Once in federal court, Maine tried to have the case dismissed, noting that Smereczynsky had already tried to argue the case in federal court and the judge ruled that he did not have standing to argue his claims there.

The dismissal would have kept Smereczynsky from ever presenting his Commerce Clause claims to any court, state or federal.

In his decision to remand the Smereczynsky lawsuit back to Hall County Superior Court from federal court, O’Kelley stated that his court would not participate in "such a miscarriage of justice" and agreed with Smereczynsky’s lawyer, George E. Butler, that the case — which lists all Gainesville City Council members and the corporate City of Gainesville as defendants — should stay in superior court.

"Whether or not (Smereczynsky’s) claims prove to be meritorious, he deserves a fair opportunity to present them to the appropriate court," O’Kelley wrote.

It was the first time in three years that the court ruled in Smereczynsky’s favor, allowing to argue his federal claims at the state level.

Not even a week after O’Kelley issued his decision, Maine filed a lengthy answer to Smereczynsky’s complaints, denying most of his allegations and arguing that Smereczynsky could not sue council members as individuals. Maine has again asked the court to dismiss Smereczynsky’s suit and order him to pay the legal costs the city incurred with the lawsuit.

Maine could not be reached for this story, but Smereczynsky said no matter how long it takes he will fight the city until he wins.

"Let us finish the house and let us get back to work, otherwise, we’re going to go the distance with this case," Smereczynsky said.

In between court dates, Smereczynsky holds open houses, trying to show people the quality of his modular homes — a construction type that is not allowed in Gainesville’s single-family zoning districts like the Waters Edge subdivision.

Most recently, Smereczynsky opened his home, an 8,000-square-foot industrial-built home, to the public on Saturday.

"We haven’t had anyone that has ever made any comments ... why it shouldn’t be allowed everywhere," Smereczynsky said.



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