Petition for Writ of Certiorari — C. W. Smith v. Gwinnett County

Supreme Court, U.S.

em eS:

981638 APR 1 2199

OFFICE OF THE CLERK

No.

IN THE

Supreme Court of the Anited States

OctToBer TERM, 1998

C.W. Soirx, Smitry's LAKE CorPORATION and Grapy SMITH.

Petitioners,

Vv.

GWINNETT County, GEORGIA,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of Georgia

PETITION FOR A WRIT OF CERTIORARI

G. HuGHEL HARRISON

Georgia Bar #332200

(Attorney of Record)

P.O. Box 88

151 Pike Street

Lawrenceville, Georgia 30045-0088

(770) 963-3421

Attorney for Petitioners

St. Louis Law Printing, Inc. 14239 Manchester Rd. Manchester, MO 63011 314-231-4477

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QUESTIONS PRESENTED FOR REVIEW

1) Did the trial Court’s order dated July 7, 1998 result in a

taking of the Petitioner’s property for public use requiring just

compensation pursuant to the taking clause of the Fifth Amend-

ment and Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 120 L.Ed.2d 798, 112 S.Ct. 2886 (1992)

2) Was the trial court’s order permanently enjoining the Peti-

tioners, their heirs and assigns from engaging in any construction

activity upon the property, and permanently appointing a Court

Ordered Monitor to be paid by the Petitioners, a valid exercise of

police powers to substantially advance a legitimate State inter-

est, as required by the Fifth and Fourteenth Amendments to the

Constitution and Nollan v. California Coastal Commission, 483

U.S. 825, 97 L.Ed.2d 677, 107 S.Ct. 3141 (1987)

LISTING OF ALL PARTIES

Petitioner SMITH’S LAKE CORPORATION has no parent

companies and no subsidianes.

TABLE OF CONTENTS

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TABLE OF CITED AUTHORITIES

CASES

Chicago B & O R. Co. vs. Chicago, 166 U.S. 226. 4]

LRM. 15, 49-S.04, ESE CSS

Dolan v. City of Tigard, 512 U.S. 374, 129 L.Ed.2d 304,

BSD ead, OY LSOMED Seecaslekcrca eink ae

Lucas v. South Carolina Coastal Council. 505 U.S.

1003, 120 L.Ed.2d 798, 112 S.Ct. 2886 (1992)...

Marshall v. Barlows, Inc. 436, U.S. 307, 56 L.Ed.2d 305,

We OSA. ABBOT) ck

Nollan v. California Coastal Commission, 483 U.S. 825.

97 L.Ed.2d 677, 107 S.Ct. 3141 (1987)..........0000.

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415. 67

Basskde I dey SF OAs LOO CRIN coin es, ala

Penn Central Transp. Co.v. City of New York,438 U.S.

104, 57 L.Ed.2d 63, 98 S.Ct. 2646 (1978)............

CONSTITUTIONAL PROVISIONS

SUS AEE PABA sos ccc cassie ies ae ees

LOCAL ORDINANCES

The 1985 Zoning Resolution of Gwinnett County, Geor-

gia, Rev. (1994) Article III Definition..................

section 606-1 ....60<ccc.. UG Co aed a EDN TUE NGG SO SEM

Page(s)

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CASE CITATIONS

Smith vs. Gwinnett County Georgia, 270Ga. 424.

ae Fe PE FURAN a MOORS ESAS © SON MISTER NCR 1,5

Smith v. Gwinnett County, 268Cia. 179, 486 S.E.2d 15]

(1997)

PETITION FOR WRIT OF CERTIORARI

BASIS FOR JURISDICTION

The trial Court’s Final Order requiring the Defendants to pay

costs and issuing a permanent injunction and subsequent Final

Judgment and Order Appointing Receiver, entered on July 7,

1998 and August 4, 1998 respectively, were affirmed in Docket

Number S98A1959 in the Georgia Supreme Court on January

11, 1999. Smith vs. Gwinnett CountyGa. 424s S. E.2d

, 1999.

The United States Supreme Court has jurisdiction over this

Petition for Writ of Certiorari because Petitioners raise a com-

pelling issue dealing with the taking of real property for public

use without just compensation, in violation of the Fifth and

Fourteenth Amendments to the Constitution of the United States.

In this case, the Supreme Court of Georgia has decided important

questions of federal constitutional law in a way that conflicts

with the decisions of the United States Supreme Court, and

particularly with its decision in Lucas v. South Carolina Coastal

Council, 505 U.S. 1003, 120 L.Ed.2d 798, 112 S.Ct. 2886

(1992).

CONSTITUTIONAL PROVISIONS, STATUTES

AND ORDINANCES

A. UNITED STATES CONSTITUTION

FIFTH AMENDMENT: No person shall be held to answer for

a capital, or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service in time

of War or public danger; nor shall any person be subject for the

same offense to be twice put in jeopardy of life or limb, nor shall

he be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without due

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process of law; nor shall private property be taken for public use,

without just compensation.

FOURTEENTH AMENDMENT: Section |: All persons born.

or naturalized in the United States and subject to the jurisdiction

thereof, are citizens of the United States and of the State wherein

the reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

B. GEORGIA STATUTES

0.C.G.A. 23-1-7 Equity to Do Complete Justice:

Equity seeks always to do complete justice. Hence, having the

parties before the court rightfully, it will proceed to give full

relief to all parties in reference to the subject matter of the action,

provided the court has jurisdiction for that purpose.

O.C.G.A. 23-4-37 Enforcement by Execution or Attachment:

Every decree or order of a superior court in equitable proceed-

ings may be enforced by attachment against the person for

contempt. Decrees for money may be enforced by execution

against the property. If a decree is partly for money and partly

for the performance of a duty, the former may be enforced by

execution and the latter by attachment or other process.

C. GWINNETT COUNTY ORDINANCES

“The 1985 Zoning Resolution of Gwinnett County, Georgia,”

as revised December 1994:

Article III Definitions:

Buffer. Land area used to visibly separate one use from

another through screening and distance; to shield or block noise,

light, glare, or visual or other conditions; to block physical

passage to non-similar areas; or to reduce air pollution, dust, dirt,

and litter.

Section 606 Buffer Between Dissimilar Districts:

Section 606.1 A buffer shall be required for the following:

1. All property zoned for commercial, neighborhood shop-

ping, office business parks or industrial uses shall have a buffer

along any rear and side property lines abutting a residential

district.

STATEMENT OF THE CASE

A. THE PROPERTY: Petitioners C. W. Smith and Grady

Smith are brothers. C. W. Smith owns all of the stock in

Petitioner Smith’s Lake Corporation. In April, 1995, Smith’s

Lake Corporation purchased a fee simple interest in a seventy

acre parcel of land in Gwinnett County, Georgia. On that parcel

was an earthen dam anda fifty acre lake known as Freeman Lake,

which was fed by Beaver Ruin Creek. Hereafter the entire parcel

will be referred to as the “Freeman Lake Property”.

Freeman Lake has been designated as a flood way by the

Federal Emergency Management Agency (FEMA), and is a

designated wetlands area regulated by the Army Corps of Engi-

neers (ACOE). The Georgia Department of Natural Resources

has periodically inspected the dam under Georgia’s Safe Dams

Act, but has declined jurisdiction over it.

Gwinnett County has zoned the Freeman Lake Property as C-

2 commercial, general business. On one side of the Freeman

Lake property is a residential subdivision and Arcadia Drive. On

the other side is another subdivision and Plantation Lane. The

Gwinnett County zoning ordinance requires that a seventy-five

foot buffer area be maintained on commercial property when it

is adjacent to property zoned residential.

B. REPAIRS TO THE DAM: After purchasing the Freeman

Lake property, the Petitioners began to repair the existing dam.

To accomplish this, the Petitioners breached the dam, drained

the lake, and brought in loads of dirt and other material for use

in repairing the dam. They began to clean up the lake bottom by

removing stumps and debris. They also dug trenches in the

bottom of the now empty lake as part of the repairs and cleanup.

At some point just before or immediately after the repairs

began, Gwinnett County informed the Petitioners that there was

no County Regulation that would prevent them from draining the

lake. However, the County also informed the Petitioners that

they were required to obtain vermits from Gwinnett County,

FEMA and ACOE before any construction.

C. LITIGATION: When Petitioners continued to repair the

dam without a County permit, Respondent initiated litigation

seeking equitable relief in the Superior Court of Gwinnett

County in Civil Action File No. 95-A-5000. At the same time,

the County also issued several citations against the Petitioners

for violation of the County’s development ordinances. '

The trial court issued a Temporary Restraining Order on

August 2, 1995, which was converted into an Interlocutory

Injunction on September 11, 1995. Later, on March 25, 1996, the

parties agreed to a Consent Order which would have allowed the

Petitioners to repair the dam in accordance with applicable

regulations, after completion of engineering studies.

This was not to be. On October 15, 1996, the court entered an

Order for Contempt, Injunctive, and Other Equitable Relief. The

Smiths appealed that order, which was affirmed. Smith v.

Gwinnett County, 268 Ga. 179,486 S.E.2d 151 (1997). Petition-

ers applied to this Court for Certiorari this occasion, but were

' The Petitioners were acquitted on some of the citations. The others were

not prosecuted.

denied. Smith vs. Gwinnett County ,__U.S.__ 139 L.Ed.2d 637,

118 S.Ct. 691 (1999) .

Thereafter, on July 7, 1998, the trial court entered a Final

Order Requiring The Defendants To Pay Costs And Issuing A

Permanent Injunction (Appendix 2). This was followed by a

Final Judgment and Order Appointing Receiver dated August 4,

1998. (Appendix 3 ) Under the orders, the Freeman Lake

Property was ordered sold to at public auction to satisfy the lien

in favor of Gwinnett County.

PRESERVATION OF ISSUES:

The Petitions first raised the issue of taking without compen-

sation in the trial court. The trial court specifically addressed the

issue in the Order for Contempt, Injunctive and Other Equitable

Relief dated October 15, 1996. The Petitioners appealed to the

Georgia Supreme Court, which addressed this issue, holding that

there was no taking. The court also held that the trial court had

acted within its equitable powers when it took control of the

Freeman Lake Property and assessed costs against the Petition-

ers. Smith vs. Gwinnett County, 268 Ga. 179, 486 S.E.2d 151

(1997). Petitioners then appealed to the United States Supreme

Court for Writ of Certiorari. That application was denied. Smith

et al vs. Gwinnett County, Georgia, __U.S.___ 139 L.Ed.2d 637,

118 S.Ct. 691 (1999).

The Petitioners next raised the issue of taking without com-

pensation before the trial court in the proceedings leading up to

the trial court’s final order requiring the Defendants to pay costs

and issuing a permanent injunction dated July 7, 1998. That

order and the Final Judgment and Order Appointing Receiver

dated August 4, 1998, were appended to the Georgia Supreme

Court. The taking issue was again raised before that court, which

rejected the Petitions argument that the orders of the trial court

worked a taking without compensation. Smith vs. Gwinnett

County, S98A1959, 270 Ga. 424, __S.E.2d___ (1999).

ARGUMENT

The Petitioners are seeking Writ of Certiorari from this Court

because of two provisions in the trial court’s Final Order Requir-

ing The Defendants To Pay Costs And Issuing A Permanent

Injunction. (Appendix 2). These are (1) The imposition of a

permanent injunction and (2) The appointment of a Court Or-

dered Monitor. The permanent injunction prohibits the Petition-

ers, their heirs, assigns, and/or agents from engaging in any

construction activity on the property except for good cause

shown to the trial court upon further hearing. The appointment

of the court ordered Monitor grants the Monitor unrestricted

access to the property to inspect it at any time and report to the

trial court.

By now it is well understood that the Takings Clause of the

Fifth Amendment to the United States Constitution is made

applicable to the states through the Fourteenth Amendment. See

Chicago B & OR. Co. vs. Chicago, 166 U.S. 226, 41 L.Ed. 72,

43 S.Ct. 158 (1897). It is also axiomatic that if State regulation

goes too far, it will constitute a taking. Pennsylvania Coal Co.

v. Mahon, 260 U.S. 393, 415, 67 L.Ed. 72, 43 S.Ct. 158 (1922).

While this Court has looked at government regulation cases on

an essentially ad hoc basis, certain basic principles governing

these inquiries have emerged.

In Penn Central Transp. Co.v. City of New York, 438 U.S. 104,

57 L.Ed.2d 631, 98 S.Ct. 2646 (1978), the Court identified those

factors it considered to have particular significance; (i) the

economic impact of the regulation on the claimant; (ii) the extent

of the regulations interference with the property owners’ distinct

financial expectations, and (iii) the character of the government

action. When the Penn Central factors are applied to this case,

three facts stand out.

The government action in question is in the form of a perma-

nent injunction which applies, not just to the Petitioners and their

een, gee

agents, but to their heirs and assigns as well. Acomplete stranger

to this action who purchases this property will be as bound by the

injunction as the Petitioners themselves. The injunction in effect

creates a permanent restrictive covenant in favor of Gwinnett

County which runs with the land, independent of general zoning

or land use restrictions on other similarly situated property and

property owners.

The extent of the injunction’s impact upon the property

owners’ expectation is obvious. The Freeman Lake property is

zoned C2. It was designated as commercial property when it was

purchased and still is. Obviously the petitioners either intend to

use the property for commercial purposes themselves or sell it to

a future purchaser as commercial property. It does not, however,

have on it any commercial structures of any kind. The October

20, 1998 report prepared for the receiver plainly states that the

only commercial value of the property lies in filling at least part

of the lake to make room for a commercial structure. (Appendix

4) That, however, is exactly what the trial court has forbidden.

The economic impact of the injunction is obvious. The

injunction strips the Petitioners or any future owner of the

property of any right to develop the property, even in compliance

with all other applicable zoning or other regulations. Before

anyone can make any lawful economic use of the property, they

must first obtain special dispensation from the Superior Court of

Gwinnett County. No sensible potential purchaser wants to buy

litigation, but by the terms of the trial courts injunction, that is

what any potential purchaser gets with his or her deed. In short.

the property although zoned for general business, will never

have commercial value to any owner it may ever have unless the

trial court exercises its discretion and lifts its permanent injunc-

tion. The lower court’s order utterly destroys the Freeman Lake

Property’s economic value.

When scrutinized in light of the factors set out in Penn Central

Transp. Co. v. City of New York, supra, it becomes apparent that

the trial court’s injunction wipes out the Freeman Lake Property’s

commercial value to the Petitioners and to any potential buyer.

It’s economic value has been appropriated for “the health, safety

and welfare of the citizens of Gwinnett County.”

In 1992, this Court further considered the issue of regulation

as a form of taking in Lucas v. South Carolina Coastal Council,

505 U.S. 1003, 120 L.Ed.2d 798, 112 S.Ct. 2886. There the

Court held that when a state enacts a regulation that deprives land

of all economically beneficial use, it may avoid paying compen-

sation only if it can show that the possible use interests were not

part of the owner’s title to begin with. As this Court itself said:

“We think, in short, that there are good reasons for our

frequently expressed belief that when the owner of real

property has been called upon to sacrifice all economically

beneficial uses in the name of the common good ,that is, to

leave his property economically idle, he has suffered a

taking.”

505 U.S. 1003, 1019, 120 L.Ed.2d 798, 815, 112 S.Ct. 2886.

The analysis in Lucas further hinged upon whether the State’s

regulation proscribes a use that was part of the owners title to

begin with. The Petitioners purchased of the property subject to

county zoning and land disturbance ordinances and both FEMA

and ACOE. None of these however, barred construction activity

on the property. None of the preexisting regulations mandated

a showing of good cause to a court before an owner could make

any commercial use of the property. Most important, none of the

regulations or court orders pre-dating the permanent injunction

bound the Petitioners’ heirs and assigns to litigation as a condi-

tion precedent to any economically beneficial use of the prop-

erty.

Again, whether reviewed in light of this Court’s ruling in Penn

Central Transp. Co. v. City of New York, supra, or under the

standard announced in Lucas v..South Carolina Coastal Council,

the result of the trial court’s order, the state’s action toward the

Petitioners’ property, is the complete appropriation of the entire

economic value of the Freeman Lake property for the benefit of

Gwinnett County.

The trial court also appointed a Court Ordered Monitor to

oversee compliance with the injunction, and granted that moni-

tor unfettered authority to enter upon the property to “apprise the

court of compliance with this order.”

In Nollan vs. California Coastal Commission, U.S. 825, 97

L.Ed.2d 677, 107 S.Ct. 3141 (1987), this court emphasized that

the right to exclude others is one of the most essential sticks in

the bundle of rights that are commonly characterized as property.

Nollan, supra, at 483 U.S. 831, 97 L.Ed.2d 686. While Nollan

considered this right as applied to property reserved for the

Nollan family’s private use, Dolan v. City of Tigard, 512 U.S.

374, 129 L.Ed.2d, 304, 1145 S.Ct. 2309 (1994) extended this

reasoning to property used to operate a business.

Here the right the county has appropriated is not the right to

exclude the general public. Instead, a court monitor, in effect a

quasi law enforcement officer, has been granted a blanket license

to enter upon the property to enforce the order, whether or not he

has probable cause to believe the injunction is being violated.

The trial court’s order is therefore analogous to a Writ of

Assistance or a General Warrant. As this Court has had occasion

to remind us, it was the abuse of such warrants which led to the

Fourth Amendmentto the Constitution. See Marshall v. Barlows,

Inc. 436, U.S. 307, 56 L.Ed.2d 305, 98 S.Ct. 1816 (1978).

Plaintiffs do not contend that this is a Fourth Amendment case

per se. However, the trial court’s order specifically precludes the

Petitioners from excluding the Monitor from the property, no

matter how frequent, intrusive or baseless his intrusions upon the

property may be. For so long as the injunction and the Court

Ordered Monitor remain in place, the Petitioners’ night to ex-

clude others from the property had been taken, without compen-

sation, on behalf of the county.

When considered in the light of this Court’s cases, the trial .

court’s Final Order Requiring the Defendants to Pay Costs and

Issuing a Permanent Injunction is clearly a “taking” of the

Freemen Lake Property for public use within the meaning of the

Fifth Amendment to the United States Constitution. The prop-

erty has no economic value without the right to fill all or part of

the lake, but the Petitioners are banned from undertaking any

construction activity. The ban extends beyond the Petitioners

and their agents, encompassing their heirs and assigns as well.

The petitioners or any future potential purchaser must engage in

litigation to re-acquire the right to engage in construction on the

property. In short, the Freeman Lake Property has been rendered

economically useless. The property has been taken, and Gwinnett

County must compensate the Petitioners.

CONCLUSION

For the above stated reasons, the Petition for Certiorari should

be granted.

Respectfully submitted,

G. HUGHEL HARRISON

Georgia Bar #332200

Attorney of Record

P.O. Box 88

151 Pike Street

Lawrenceville, Georgia 30045-0088

(770) 963-3421

Attorney for Petitioners

APPENDIX

APPENDIX A

In the Supreme Court of Georgia

Decided: January 11, 1999

S98A1959. SMITH V. GWINNETT COUNTY, GEORGIA.

CARLEY, Justice.

When C.W. and Grady Smith and Smith’s Lake Corporation

(the Smiths) began to develop their property without obtaining

the requisite permits, Gwinnett County brought suit to enjoin

them from further construction activity. The trial court entered a

preliminary injunction. After subsequently finding that the Smiths

were in criminal contempt of that order, the trial court took

control of the property pursuant to its equitable powers and

ordered the County to restore the property to its original condi-

tion, with the reasonable costs of that restoration to be assessed

against the Smiths. The Smiths appealed, and this Court af-

firmed. Smith v. Gwinnett County, 268 Ga. 179 (486 SE2d 151)

(1997). Thereafter, the trial court entered a permanent inj unction

and a final order as to the reasonable and necessary expenses of

restoration. When the Smiths did not pay the amount of expenses

assessed, the trial court entered a joint and several judgment

against them, and appointed a receiver to take control of the

property and sell it. It 1s from these orders that the Smiths bring

this appeal.

|. The Smiths urge that the trial court’s exercise of jurisdiction

over the property violates the United States and Georgia Consti-

tutions. The trial court originally took only the control of the

property for the limited purpose of insuring Its restoration. Smith,

supra at 181(2). The trial court was authorized to assess the

restoration expenses against the Smiths. Smith, supra at 181(3).

When the defendants did not pay those expenses, it was permis-

sible to levy on their property to satisfy the judgment against

them. See OCGA § 9-12-80. Thus, the County did not take the

property in violation of the constitutional requirement of pay-

ment of just and adequate compensation. The court ordered a

levy on the property in order to satisfy a valid personal judgment

which the County obtained against the Smiths.

2. Although the Smiths urge that it was error to allow

television coverage of the proceedings without their consent,

their consent was not a prerequisite to the trial court’s decision

in that regard. OCGA $ 15-1-10.1(b)(2) provides that the consent

or objection of the parties or witnesses is but one factor for the

trial court to consider in making its discretionary determination.

Even assuming that the Smiths may have objected, they make no

showing that, considering the other etiumerated factors, it was an

abuse of discretion to allow coverage or that, if it was, the error

was harmful to them.

3. The Smiths contend that the permanent injunction is

contradictory and confiscatory. A review of the order shows,

however, that it is neither, and that it complies with the statutory

requirement that an injunction be specific in its terms. OCGA §

9-11-65(d).

Judgment affirmed, All the Justices concur.

SUPREME COURT OF GEORGIA

Case No. S98A1959

Atlanta February 16, 1999

The Honorable Supreme Court met pursuant to adjournment.

The following order was passed.

C.W. SMITH, et al. v. GWINNETT COUNTY

Upon consideration of the Motion to Stay Remittitur filed in

this case, it is ordered that it be hereby denied.

SUPREME COURT OF THE STATE OF GEORGIA

Clerk’s Office, Atlanta

I certify that the above is a true extract from the Minutes of the

Supreme Court of Georgia.

Witness my signature and the seal of said court Hereto affixed

the day and year last above written.

/s/ Lynn M. Stinchcomb

Chief Deputy Clerk

oy ye gears

APPENDIX B

IN THE SUPERIOR COURT

FOR THE COUNTY OF GWINNETT

STATE OF GEORGIA

CIVIL ACTION FILE

NO. 95-A-5000-3

GWINNETT COUNTY, GEORGIA,

Plaintiff,

V.

C.W. SMITH, GRADY SMITH and

SMITH’S LAKE CORPORATION,

Defendants.

GWINNETT COUNTY’S MOTION FOR PAYMENT OF

THE COSTS OF REPAIR AND RESTORATION OF

FREEMAN LAKE DAM AND BUFFERS

FINAL ORDER REQUIRING THE DEFENDANTS

TO PAY COSTS AND ISSUING

A PERMANENT INJUNCTION

The County having filed the instant motion, the Court set a

hearing for April 27,1998. At that hearing, testimony was pre-

sented that the restoration of the lake and all other necessary

repairs were complete, except for a few “punch-list” type items.

The Defendants thereafter requested thirty (30) days to inspect

the work so they could make objections, if any. The Court

therefore reserved for further hearing and review the costs of the

repair of the Freeman Lake Dam, the restoration of the lake and

buffers, the removal of downed trees and debris and erosion

control of the Freeman Lake bed, the engineering studies of the

Freeman Lake Dam, and compensation of the Court Ordered

Monitor.

ais TM is

The Court thereafter set a further status and/or final hearing for

accounting purposes for May 29,1998. At that hearing, the

Defendants presented their objections through the testimony of

Grady Smith. The Court directed the County to check on a few

more “punch-list” type items, and a further status and/or final

hearing for accounting purposes was set for June 19,1998. Due

to illness of Defendants’ counsel, the hearing was continued

until July 2,1998.

After hearing evidence offered by the County, and after

argument of counsel presented at the July 2, 1998 hearing, the

Court finds that the remaining “punch-list” items have been

completed, and the County is now entitled to a reimbursement of

the monies it has reasonably expended in the above-styled case.

See October 15, 1996 Order for Contempt, Injunctive, and Other

Equitable Relief, aff'd, Smith v. Gwinnett County, 268 Ga.

179(1997), and cert. denied __ U.S. __, 118 S.Ct. 691,139

L.Ed.2d 637 (January 12, 1998). The County has paid for the

costs of the repair of the dam and the restoration of Freeman

Lake; however, the Court Ordered Monitor, Mr. James Burton,

remains unpaid. The Court hereby orders and directs the County

to pay Mr. Burton a sum of $14,355.00 for his time served in the

above-styled case. The Court finds this to be a reasonable and

necessary amount, given the amount of time and effort Mr.

Burton has dedicated to this case.

As for the reimbursement, the Court hereby orders and directs

the Defendants to pay to the Clerk of Superior Court of Gwinnett

County on or before August 3, 1998 the sum of $488,364.89 as

the cost of the repair of the dam and the restoration of Freeman

Lake, $42,170.00 as attorney’s fees, and $14,355.00 as Court

Monitor fees, said sums totaling $544,889.89. The Court finds

these costs and fees to be reasonable and necessary regarding the

repair of the lake and the restoration of the dam and the buffers.

As such, there shall be a lien placed on the property described in

Exhibit “A” until these costs and fees are timely paid. Should the

Defendants fail to timely pay said costs and fees, the Court shall

enter a money judgment against Smith’s Lake Corporation and

against C.W. Smith and Grady Smith individually, and jointly

and severally, and post-judgment interest shall thereafter accrue

at the rate of twelve percent (12%) per anum. See O.C.G.A. § 9-

12-10. The Court also reserves the right to enforce the judgment

through lien foreclosure and/or the appointment of a receiver to

take control of and sell the subject property. The Defendants

shall be personally liable for any deficiency thereafter, and the

Court reserves the use of its equitable powers for further enforce-

ment and collection of the same. See O.C.G.A. § 23-4-32.

Otherwise, the Defendants are hereby ordered and directed to

maintain the property in compliance with applicable local, state,

and federal regulations. This Court finds that in order to maintain

the health, safety, and welfare of the citizens of Gwinnett County

and to prevent future destruction of the subject property, the

Court shall retain jurisdiction over the property, and a permanent

injunction shall be placed thereon. See Smith v. Gwinnett County,

268 Ga. at 181(3) (citing Fuller v. Dillon, 220 Ga. 36(1)(f)

(1964); O.C.G.A. § 23-1-7). The Defendants, their heirs, as-

signs, and/or agents are hereby permanently enjoined from

engaging in any construction activity, including grading, exca-

vating, or draining the lake; disturbing the buffers on the prop-

erty, to include cutting, destroying, or otherwise harming any of

the trees or vegetation located therein; and destroying, breach-

ing, or otherwise interfering with the dam, except for good cause

shown to the Court upon further hearing. Mr. Burton shall remain

the Court Ordered Monitor, and from time to time, he may enter

the property, without fear of trespass, to view the lake, buffers,

and dam so he may apprise the Court of compliance with this

Order. Court Monitor fees, if any, shall be assessed against

Gwinnett County. The County or its agents may also, without

fear of trespass, accompany Mr. Burton on the property to inspect

the dam and ensure that it remains structurally sound.

ae Bec

In the event of an appeal of this Order, the Court finds that a

notice of appeal will not act as a supersedeas regarding payment

of the foregoing costs and fees and the issuance of the permanent

injunction. See O.C.G.A. § 9-11-62(c); Howard v. Smith, 226

Ga. 850, 852 (1970).

SO ORDERED this the 7th day of July, 1998.

/s/ Dawson Jackson

DAWSON JACKSON, Judge

Gwinnett Superior Court

Becky Pearrow, Official Court Reporter

Copies to:

James Burton; G. Hughel Harrison; M. Van Stephens;

Walt M. Britt

EXHIBIT “A”

All that tract or parcel of land lying and being in Land Lots 174,

175 and 185, 6th District. Gwinnett County, Georgia and being

more particularly described as follows:

BEGINNING at a point located at the intersection of the

westerly right-of-way of Beaver Ruin Road (a 130 foot right of

way) with the southerly right-of-way of Plantation Lane (a 60

foot right of way), running thence along said westerly side of

Beaver Ruin Road right of way, and following the curvature and

arc thereof, 515.21 feet to a point (said arc having a radius of

| ,497.739 feet); running thence along the westerly right of way

of Beaver Ruin Road South 19 degrees 24 minutes east a dis-

tance of 183.29 feet to a point (said point being the northeast

corner of Lot 1, Block A of Arcadia Forest Subdivision); running

thence along the northwesterly lines of Lots I through 11, said

block and subdivision, along the northwesterly terminus of

Evangeline Way (a 60 foot right of way not opened) and along

the northwesterly line of Lot 12, said block and subdivision south

60 degrees 44 minutes 30 seconds west a distance of 1,525.7 feet

to an iron pin found on the east land lot line of Land Lot 174 and

the property line of Lake Freeman. Inc. as more particularly

described in that certain Georgia Limited Warranty Deed from

the Federal Deposit Insurance Corporation to Lake Freeman,

Inc., dated June 12, 1979, as recorded in Deed Book 1788, Page

230, Gwinnett County, Georgia Records (said Lake Freeman

property being hereinafter referred to as the “Lake Freeman

Property”); running thence along said Lake Freeman Property

line north 31 degrees 21 minutes west a distance of 50 feet to a

point; running thence along said Lake Freeman Property south

77 degrees 31 minutes west a distance of 669.0 feet to an iron pin

found said point being located on the property line of property

now or formerly owned by the Federal Deposit Insurance Cor-

poration; running thence along said property line of the Federal

Deposit Insurance Corporation the following calls: running

Daa FS ie

‘ihe ate

thence north 29 degrees 34 minutes west a distance of 237.4 feet

to a point; running thence south 86 degrees 26 minutes west a

distance of 193.1 feet to an iron pin found; running thence north

69 degrees 28 minutes west a distance of 399.6 feet to an iron pin

found; running thence north 45 degrees 12 minutes west a

distance of 100 feet to an iron pin found; running thence north 45

degrees 49 minutes 30 seconds west a distance of 199.8 feet to

a point; running thence north 86 degrees 56 minutes 30 seconds

west a distance of 70.0 feet to a point; running thence south 52

degrees 56 minutes 30 seconds west a distance of 100 feet to an

iron pin found; said iron pin being located on the property line of

property now or formerly owned by Vulcan Materials Co.;

running thence along said property line of Vulcan Materials Co.

the following calls: running thence north 11 degrees 00 minutes

west a distance of 86.1 feet to a point; running thence north 19

degrees 33 minutes east a distance of 82.4 feet to a point; running

thence north 24 degrees 59 minutes east a distance of 50.8 feet

to a point; running thence north 32 degrees 32 minutes east a

distance of 36.0 feet to a point; running thence north 50 degrees

18 minutes east a distance of 23.4 feet to a point; running thence

north 58 degrees 15 minutes east a distance of 71.2 feet toa point;

running thence north 60 degrees 24 minutes east a distance of

132.2 feet to a point; running thence 49 degrees 26 minutes east

a distance of 147.6 feet to a point; running thence north 37

degrees 36 minutes east a distance of 43.4 feet to a point; said

point being located on the property line of property now or

formerly owned by Ronnie Lane; running thence along the

property line of Ronnie Lane the following calls: running thence

north 65 degrees 54 minutes 30 seconds east a distance of 471.0

feet to an iron pin found, running thence north 03 degrees 22

minutes 30 seconds west a distance of 75.1 feet to an iron pin

found, said iron pin being located at the Southwestern corner of

Lot 12, Block A, unit 1 of the V. W. Freeman Subdivision;

running thence along the southwesterly, southerly southeasterly

and easterly lines of Lots 12, 11, 10, 9, 8, 7, 6, 5, 4, 3, 2, and 1,

~— KeiO~

said block, unit and subdivision the following calls: running

thence south 69 degrees 19 minutes 30 seconds east a distance of

90.0 feet to an iron pin found; running thence north 77 degrees

02 minutes east a distance of 110.7 feet to a 1-inch pipe; running

thence south 85 degrees 28 minutes 30 seconds east a distance of

147.6 feet to a 1-inch pipe; running thence north 87 degrees 32

minutes 30 seconds east a distance of 91.9 feet to a 1-inch pipe;

running thence north 74 degrees 28 minutes 30 seconds east a

distance 285.9 feet to an iron pin found; running thence 16

degrees 35 minutes east a distance of 161.5 feet to a point;

running thence north 22 degrees 44 minutes east a distance of

195.3 feet to a point; running thence north 60 degrees 00 minutes

east a distance of 89.7 feet to a point; running thence north 88

degrees 31 minutes 30 seconds east a distance of 390.0 feet to an

iron pin found; running thence north 72 degrees 46 minutes east

a distance of 138.0 feet to an iron pin found; running thence north

36 degrees 20 minutes east a distance of 136.8 feet to an iron pin

found; running thence north 65 degrees 50 minutes east a

distance of 95.0 feet to an iron pin found; running thence north

53 degrees 29 minutes west a distance to 57.3 feet to a point on

the southerly side of Plantation Lane (a 60 foot right of way);

running thence along said right of way of Plantation Lane along

an arc of a curve to the right a distance of 102.44 feet to a point

(said arc having a radius of 219.110 feet); running thence along

said right of way of Plantation Lane south 51 degrees 43 minutes

30 seconds east a distance of 502.5 feet to a point; running thence

along said right of way of Plantation Lane along an arc of acurve

to the left a distance of 77.2 feet (said arc having a radius of

242.207 feet) to a point and the POINT OF BEGINNING

containing 72.71 acres as more particularly shown on that certain

survey for Park Corporation dated April 19, 1980, revised May

1, 1980, revised May 5, 1980, as last revised May 9, 1980 as

prepared by Watts & Browning Engineers and bearing the

certification and seal of A. W. Browning, Registered Land

Surveyor No 490; said property being the same property de-

scribed as Tract No. 3 in that certain Deed to Secure Debt from

Frazier Enterprises, Inc. to the Hamilton Mortgage Corporation,

it being the intent of Grantor to convey all the property described

therein as Tract No. 3.

Less and Except any Right of Way Deeds, Easements or Restric-

tions of Record.

A-12 -

APPENDIX C

IN THE SUPERIOR COURT

OF GWINNETT COUNTY

STATE OF GEORGIA

Civil Action File No. 95-A-5000-3

GWINNETT COUNTY, GEORGIA

Plaintiff,

v.

C. W. SMITH, GRADY SMITH

and SMITH’S LAKE CORPORATION

Defendants.

FINAL JUDGMENT AND

ORDER APPOINTING RECEIVER

Whereas it appears that on July 7, 1998, this Court entered a

Final Order Requiring the Defendants to Pay Costs and Issuing

a Permanent Injunction, said payment of costs to be paid to the

Clerk of Gwinnett Superior Court on or before August 3, 1998;

Whereas it appears said payment of costs remains unpaid;

Wherefore the Court hereby enters a judgment against Smith’s

Lake Corporation and against C.W Smith and Grady Smith

individually and jointly and severally in the amount of

$544,889.89, with post-judgment interest accruing hereafter at

the rate of twelve percent (12%) per anum. See O.C.G.A. § 9-12-

10. Further, the Court hereby appoints John F. Doran, Jr. as a

receiver to take control of and sell the property at issue. See

O.C.G.A § 9-8-1 et seg. Mr. Doran, as the Court Ordered

Receiver shall have the authority to enter and inspect the prop-

erty, without fear of trespass, to investigate the value of the

property and to determine the best method of selling the property

to satisfy said judgment and the lien on the property in favor of

Gwinnett County, said authority to include the power to hire an

independent appraiser(s). Said appraiser(s) shall likewise have

the authority to go on or about the subject property for the

purpose of investigation and determination of value of the

property. The initial costs of appraisals, if any, shall be paid by

Gwinnett County. The Court reserves the right to assess ap-

praisal costs against the Defendants and subject the property to

a lien thereon. The Court likewise reserves the right to assess

Receiver costs against the Defendants and to subject the property

to a lien thereon. A further hearing is hereby scheduled to

consider the Receiver’s report and recommendations on Octo-

ber 2, 1998 at 2:00 p.m. in Courtroom 3-F in the Gwinnett

Justice and Administration Center, Lawrenceville, Georgia.

SO ORDERED, this 4th day of August, 1998.

/s/ Dawson Jackson

DAWSON JACKSON, Judge

Gwinnett Superior Court

Copies to:

John F. Doran, Jr.

James Burton

G. Hughel Harrison

M. Van Stephens

Walt M. Britt

may Ye Pe

APPENDIX D

Consultation - Restricted Assignment

Smith’s Lake Corporation Property

THE STRIPLING SHAW STRIPLING GROUP

AN ASSOCIATION OF INDEPENDENT

REAL ESTATE APPRAISERS

COMMERCIAL * RESIDENTIAL APPRAISERS

& CONSULTANTS

W. S. Stripling, MAI 6165 Crooked Creek Road

Wayne Shaw Norcross, Georgia 30092

William Todd Stripling (770) 449-1600

Fax (770) 449-6110

20 October 1998

Mr. John F. Doran, Jr

Attorney and Counselor at Law

260 Constitution Boulevard

Post Office Box 1415

Lawrenceville, GA 30246

Re: Consultation - Restricted Assignment

Smith’s Lake Corporation Property

Dear Mr. Doran:

As requested, we have conducted market research and have

completed preliminary analyses. As agreed upon, and in keeping

with your needs, this consultation is presented in a restricted

format. More extensive information is maintained in the

appraiser’s files.

The term “scope of the assignment” means the extent of the

process of collecting, confirming, and reporting data. The scope

eg eee Se ae

ont AAS a

of the work performed in this assignment includes the definition

of the problem, inspection of the subject property, collection,

verification and analysis of data, preparation of a report present-

ing the data gathered and conclusions for this assignment.

Information gathered includes land sale information, taxes,

zoning, flood zone, population, and other pertinent information.

Information was gathered from Gwinnett County and surround-

ing Metro Atlanta areas. Sources include buyers, sellers, brokers,

agents, local authorities, public records, secondary publications,

and property owners. Verification typically includes contact

with a party to a transaction, field inspections, and reviews of

public records.

The function of this assignment is to assist the client with

determining the value of the subject tract or, as the case may be,

assist with determining if in fact the subject has a measurable

value.

Subject Description

The subject property consists of Freeman Lake located along the

southwest side of Beaver Ruin Road in Land Lots 174, 175, and

185 of the 6th District, Gwinnett County, Georgia. The property

contains a total of 72.71 acres and consists primarily of the lake

area with a small amount of adjacent shore line land. As of the

effective date of this assignment, 20 October 1998, the lake has

been drained.

In our attempt to determine what value the subject land may have,

we have considered the potential market for the subject as a lake.

Because of the minimal amount of useable land associated with

the lake and the minimal accessibility along Beaver Ruin Road,

the first avenue of consideration is to account for the surround-

ing, adjacent tracts. In other words, by looking at the adjacent

tracts and their uses, an exercise in judgement is then developed

whereby the appraiser seeks to determine if the subject would

have any marketability to any of the adjacent tracts.

A-16

There are three subdivisions adjacent to the subject. First,

located along the southern edge of the lake, is the Arcadia Forest

subdivision, second, along the northwest edge of the property is

the V.W. Freeman subdivision, and third, along the southwest-

ern edge of the subject, is the Parklake subdivision. A fourth

adjacent tract is located along a small portion of the subject’s

northwest property line owned by Vulcan Materials Company

that is part of the rock quarry located northwest of the subject. A

fifth adjacent tract, is located along a portion of the northwest

property line with ownership vested in Nancy T. Ivy.

The three subdivisions are in the price range wherein a

homeowner’s association would most likely prove impractical

and thus the potential purchase of the lake would not be likely.

There appears to be no demonstrable market need or use for the

subject by Vulcan Materials, the fourth tract. The fifth adjacent

tract is a self-contained, independent industrial/commercial build-

ing located along Steve Reynolds Boulevard and would not

directly benefit from ownership in the subject tract.

These observations lead to a conclusion that there does not

appear to be a market for the subject as a free standing lake. Thus,

one remaining alternative would be to fill a portion of the lake

along the Beaver Ruin frontage and thereby gain some useable

commercial acreage.

At this point our expertise becomes limited. First, the various

required state and federal agencies must be contacted in order to

determine if, in fact, any portion of the lake could be filled. This

first step may prove to be insurmountable. Secondly, a detailed

engineering study and cost estimate would be required in order

to determine the financial feasibility of filling in a portion of the

lake and to what extent and size that portion may be.

In conclusion, it would appear that the only potential value of the

subject rests within the ability of the lake, ora portion thereof, to

be filled-in to gain useable commercial acreage along Beaver

Ruin Road. As mentioned, without further information, some of

which is outside our expertise, additional hypotheses and analy-

ses may prove to be beneficial.

We await your further instructions.

This business is appreciated, and we trust that this information is

satisfactory and serves your purposes. Please do not hesitate to

call if any further assistance is required.

Sincerely,

THE STRIPLING SHAW

STRIPLING GROUP

s/ William Todd Stripling

William Todd Stripling

Certified Real Estate Appraiser

GA#1291

WTS:mjl

CERTIFICATION

The undersigned does hereby certify that, except as otherwise

noted in this appraisal report:

l.

ho

Ww

6.

The statements of fact contained in this report are true and

correct.

The reported analyses, opinions, and conclusions are lim-

ited only by the reported assumptions and limiting condi-

tions, and are my personal, unbiased professional analyses,

opinions, and conclusions.

[ have no present or prospective interest in the property that

is the subject of this report, and I have no interest or bias

with respect to the parties involved.

The compensation 1s not contingent upon the reporting ofa

predetermined value or direction in value that favors the

cause of the client, the amount of the value estimate, the

attainment of a stipulated result, or the occurrence of a

subsequent event.

The analyses, opinions, and conclusions were developed

and this report has been prepared, in conformity with the

Uniform Standards of Professional Appraisal Practice.

A personai inspection has been made of the property that is

the subject of this report.

No one provided significant professional assistance to the

person signing this report.

The Appraisal Institute conducts a voluntary program of con-

tinuing education for its designated members. MAI’s and SRA’s

who meet the minimum standard of this program are awarded

periodic educational certification.

RESTRICTION UPON DISCLOSURE AND USE

Disclosure of contents of this appraisal report is governed by the

By-Laws and Regulations of the Appraisal Institute.

Neither all nor any part of the contents of this report (especially

an conclusions as to value, the identity of the appraiser or the firm

with which he is connected) or any reference to the Appraisal

Institute or to the MAI or SRA designation shall be disseminated

to the public through advertising media, public relations media,

news media, sales media or any other public means of commu-

nication without the prior written consent and approval of the

undersigned.

/s/ William Todd Stripling

William Todd Stripling

Certified Real Estate Appraiser

GA#129]