GAINESVILLE -- Grant Smereczynsky is hoping the third time's the charm in his ongoing battle against the city of Gainesville.

The owner of Building Systems Network has been in and out of court with the city since officials forced him to stop building a modular home in 2005. On Dec. 21, Smereczynsky filed a third suit against the city in Hall County Superior court.

He claims Gainesville officials violated his civil right to practice interstate commerce as well as a state law that encourages reducing construction costs. The city's attorney, Dana Maine of the Atlanta firm Freeman, Mathis and Gary, argues that city officials are within their rights and, so far, the courts have agreed.

In early 2005, Smereczynsky started assembling a modular home at 2668 Waters Edge Drive. The city halted the construction in March 2005 before the house was completed, and ordered Smereczynsky to remove it. The city cited a local ordinance that bans prefabricated homes in single-family subdivisions.

Smereczynsky asked the city to rezone the property to allow him to complete the assembly of the modular home, which was built in a North Carolina factory. When officials denied his request, Smereczynsky took the city to court.

"The city has eliminated a housing choice for the city," Smereczynsky said. "They're not giving (people) the right to choose."

Maine says city officials have every right to regulate industrialized housing.

Smereczynsky claims that the city's zoning regulations, which forbid prefabricated homes in single-family residential areas, are contrary with state law. Smereczynsky's Dahlonega-based lawyer, George Butler, further argues that the city's ban on factory-built homes in single-family subdivisions is a violation of the state's Industrialized Building Act, or O.C.G.A 8-2-112. "But we don't agree with that," Maine countered.

And neither have both a Superior Court judge and the Court of Appeals. A Hall County Superior Court judge ruled in 2005 that Gainesville's zoning codes do not conflict with state law regarding industrialized buildings and local zoning. The Georgia Court of Appeals later upheld the ruling.

In 2006, Smereczynsky tried again in federal court. He planned to argue that the city of Gainesville violated a federal interstate commerce law. However, the judge declined to hear the case, saying Smereczynsky did not have the legal standing to raise the claim.

The house still sits unfinished on the main road in the Waters Edge subdivision, almost three years later. "I owe $300,000 on a home I can't build," Smereczynsky said.

In the past, the Water's Edge homeowner's association said it wanted the home removed. The city ordered its removal, but is waiting on the final court ruling to force the removal.

J.P Patton, who lives across from the unfinished house, claims the unfinished house is keeping him from selling his home, which has been on the market for a year now. "I could have sold it if that house hadn't been sitting there," Patton said.

Patton admits he does not know much about modular homes. "I don't know whether they're good or bad," Patton said. "I've never been in the house, to tell you the truth."

Smereczynsky says that modular homes are good. He claims their construction is better for the environment, and their construction is better than site-built homes.

Smereczynsky said most people confuse modular homes with mobile homes, because both are built in a factory. Smereczynsky said he is building a $7 million, 22,000-square-foot modular home in Fulton County, with no objections from any local authorities or homeowner's associations. "There are no wheels under this house," Smereczynsky said. "We just built it different."

Still, Patton says he wants the house, and the unsightly retaining wall in front of the house, removed.
"That wall's ugly as everything," Patton said.

Butler argues even though the federal judge did not hear the case, the city of Gainesville did violate the interstate commerce clause. Butler says the city's zoning ordinances are designed to protect local builders and discriminate against out-of-state builders.

"By saying ‘no' to factory-built houses, the city of Gainesville is discriminating against all out of county commerce," Butler said.

Smereczynsky's new complaint is not very different from his previous cases -- he's still arguing the same federal and state claims -- but this time, he has a little more support. Butler said he has obtained an affidavit from the assistant commissioner of the Department of Community Affairs that is supported by the state's Attorney General's office. The DCA has expressed its support of Smereczynsky's case in the past. In 2005, Commissioner Mike Beatty sent a letter to then-mayor George Wangemann, asking the city to reconsider its position on the matter of homes not built on site.

However, the city maintains the same position it has for the past three years, Maine said. It may take a while for the new lawsuit to be heard in Superior Court. The city's attorneys have until Jan. 25th to respond to the complaint.

Maine said she advised city officials that regardless of the winner of this round, there likely will be an appeal. "It could be another couple of years (before the case is resolved)," said Maine. "Which is unacceptable to everyone involved."

"But there's not much we can do about it from a legal standpoint."