MARIETTA - Councilman Philip Goldstein's proposal for a five-story building on the Square is not grandfathered in under a former ordinance allowing for taller building because he never applied for a building permit, city attorney Doug Haynie said.

A hearing is set for this morning in Cobb Superior Court in Goldstein's lawsuit against the city of Marietta, city council and Mayor Steve Tumlin, requesting a judge to force the city to allow him to build the building on North Park Square. The city has filed a motion to dismiss the suit.

Goldstein received a three-year "certificate of approval" from the city's Historic Board of Review on Sept. 15, 2008, for construction of a five-story, 66-foot-one-inch high building, with ability to vary the height by three feet. However, the city council on March 9 lowered the height limits of buildings surrounding Glover Park to 42 feet in height or, in the event the top floor is set back from the edge of the building to allow for a patio-rooftop effect like the Strand Theatre, 54 feet.

While Goldstein maintains his proposal is grandfathered in under the previous ordinance, Mayor Steve Tumlin said it is not.

Haynie says the city code has two requirements in dealing with Certificates of Approval. Requirement No. 1 is that the applicant obtains a certificate.

"He has a document," Haynie said. "We're not going to say that it's valid or invalid. But even with that document, the code says the certificate must be implemented by ongoing construction. Well, he's never gotten a building permit, so he has not passed test No. 2."

Goldstein is still welcome to apply for a building permit since his certificate doesn't expire until September, but he would be governed by the restrictions of the council's new ordinance, Haynie said.

"It's an issue of ripeness," Haynie said. "It's an issue of not exhausting his remedies, and the whole theory in that lawsuit is vested rights. Vested rights have no application to this situation because he's never applied for a building permit. In a nutshell, that's it."

"You get no grandfathering until you apply for a building permit," Haynie said. "The day you apply for a building permit you are, in fact, grandfathered. And he never has done that. He hasn't done that as of today."

Goldstein maintains he has not applied for a building permit because submitting detailed design plans for the building would cost thousands of dollars, an expense he is not willing to make unless he is certain the city will allow him to build the building.

If Goldstein were to have been turned down, there is an appeals process; for example, if the building inspector were to deny Goldstein's application for a building permit, Goldstein could appeal to the Construction Board of Appeals.

"So the point is no matter where he might get denied, there is an appeals process," Haynie said. "And that's called failure to exhaust your remedies. He has not done that either. All of this boils down to one word, and that word is this is 'premature.'"

Today's hearing begins in Judge George Kreeger's courtroom at 9:30 a.m.

Goldstein said he plans to be in attendance.