In a lawsuit filed in Cobb Superior Court on Tuesday, attorneys representing owners of property near the proposed site of the new Braves stadium in the Cumberland area claim the county government violated zoning procedures and abused its powers to rezone a property.
The suit alleges the rezoning application for the property was “purely speculative” and “had none of the normal specificity required by the Zoning Ordinance,” and as a result, the general public was denied its due process rights because it did not have complete information.
Doug Haynie, attorney for the city of Marietta, Daniel White, Haynie’s partner at Marietta-based Haynie, Litchfield, Crane & White, and George Butler II, a real estate lawyer based in Dahlonega, brought the suit on behalf of Fairly Breezy LLC.
The company owns a 1.9-acre property at 2550 Heritage Court containing a multi-story, 25,000-square-foot building, a property which is adjacent to the 74.77-acre parcel the Braves plan to use for a new $672 million stadium and a $400 million mixed-use development.
According to the complaint, the plaintiff wants the zoning decision allowing the stadium and development to be invalidated; it also wants all court costs to be paid by the defendants.
Marietta attorney Tom Cauthorn looked at the complaint for the MDJ and said the suit contains a “very complete series of factual allegations” as to what Cobb officials may have done improperly.
“It’s probably not going to get dismissed, and it has to be taken seriously,” he said.
Tim Lee, chairman of the Cobb Board of Commissioners, said he was aware of the suit and though he normally doesn’t comment on lawsuits, he thought the board acted appropriately in the rezoning process.
“I will say I believe the zoning was sound. It was correct. It followed procedure and met all the requirements of consideration when we rezone a property,” he said.
Beth Marshall, director of public relations for the Braves, said the organization is aware of the lawsuit but declined to comment.
The suit is not currently assigned to a judge.
Butler, a former law professor at Emory University in Atlanta, described the basis of the suit.
“It is our respectful opinion that by the time the board got around to voting on the zoning, they had in essence effectively committed themselves to the outcome. And the extraordinary zoning carte blanche that they gave the Braves reflects the public-private partnership that we think Cobb County unconstitutionally gave to the Braves,” he said.
A serious matter
“The first thing that absolutely leaps off of the page is that the plaintiff is represented by Doug Haynie and Dan White,” Cauthorn said. “Doug Haynie has been the city attorney for the city of Marietta for 30 years, and … Daniel White, Judge White’s son, is his partner. And Dan White and Doug are serious-minded people.
“I’ve never known either one of them to undertake anything, as far as filing any kind of legal proceeding, where they didn’t believe that there was a meritorious claim or a meritorious defense,” he added.
Cauthorn said the writing in the complaint is not the usual dry legal pleading, so he thinks a great deal of thought went into its style and language.
For example, the suit calls the zoning action a “pig in a poke” and a “wolf in sheep’s clothing.”
A property owner must prove they have some “special standing” in order to appeal a zoning action, Cauthorn said, meaning they must show the zoning action has an impact on their property specifically, as opposed to the impact shared by the general public. Cauthorn said the suit does so by describing how the development would cause the value of the plaintiff’s property to decrease.
“In this particular instance, they have alleged that there’s going to be several impacts on their property, all of which they allege are dramatic: noise, lights, traffic,” he said.
The suit itself states the zoning action “directly and substantially damage(s) the value, marketability, and quiet enjoyment” of the plaintiff’s property.
Additionally, the complaint alleges the Braves approached the plaintiff and presented a “sub-market offer” to purchase its property and threatened “to ‘wall off’ the (property) if the offer was refused.”
A review of the zoning application revealed the Braves were intent on making good on the threat, the suit claims.
“(The Braves) were irrationally, arbitrarily, oppressively, and illegally attempting to manipulate the … zoning process in this instance so as to deny (the plaintiff) and other neighboring landowners their procedural and substantive protections against unreasonable noise, traffic congestion, illegal parking, rampant signage pollution, and violations of … limitations designed to prevent towering and unattractive monolithic structures that ‘wall off’ and block light and air to neighboring landowners,” the suit states.
Butler said the next step in the procedure is for the defendants to be served with the complaint, at which point they have the option of filing a motion to dismiss the complaint in Cobb Superior Court.
If the complaint is not dismissed, Cauthorn said, it will be decided by a judge in a non-jury trial.
Butler said he is looking forward to seeing what happens next.
“I have the luxury of believing in my position, both intellectually and as a matter of public policy,” he said. “So I am frankly interested to see what the other side has to say for themselves.”