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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 1003

## Text

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

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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

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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.

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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]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1583%3A1. Public record. Not legal advice.