“We’re delighted,” Mayor Steve Tumlin said of the ruling. “It went through the procedural process. We treated the plaintiff in this case fair all along. We’re delighted with the ruling. It ratifies what we thought should have happened, but we had to wait for the answer from the court, and the answer came back in a form that we’re very happy with.”
Goldstein’s Marietta Properties LLC sued the city in April 2011, arguing that a new downtown height ordinance should not prevent him from building the five-story building, about 66 feet tall, on the spot because he had a certificate of approval from the city’s Historic Board of Review when the rule was adopted.
Cobb Superior Court Judge George Kreeger threw out Goldstein’s lawsuit in June 2011, ruling that the proposed building was not grandfathered in and that he must obey the ordinance, which limits new buildings fronting Glover Park to a height of 42 feet, because Goldstein did not have, or even apply for, a building permit before the new ordinance took effect.
Goldstein appealed Kreeger’s decision in July 2011 to the state Supreme Court, but that court said in January that the case should be heard by the Court of Appeals. A panel of three Court of Appeals judges — Anne Elizabeth Barnes, Harris Adams and Christopher McFadden — upheld Kreeger’s decision Friday.
“The opinion says Mr. Goldstein never filed an application for a permit,” city attorney Doug Haynie said. “We’ve been saying that from day one, and the Court of Appeals latched on to that. The other thing is, if you read the opinion it talked about this case was not ripe because he never applied for a building permit. Well now if he applies for one, there’s no question that the newer ordinance would apply, so he’s in an awkward situation of having filed suit really too soon and now it’s too late.”
Haynie said Goldstein has a few remaining appeal rights to exercise, such as asking the three-judge panel to reconsider their ruling, asking all 12 Court of Appeals judges to consider it, or asking the Georgia Supreme Court to hear it.
Goldstein referred comments to his attorney, Richard Wingate, who said, “we are disappointed with the court’s ruling and are filing a motion for reconsideration.”
Tumlin and Councilman Anthony Coleman said they want Goldstein to pay for the attorney fees the city has incurred in defending itself in the litigation.
“Our policy is to go after attorney fees because it’s cost the city a lot of money: a trial and an appellate court decision, it even had a stop at the Supreme Court,” Tumlin said. “That is unnecessary to put the city of Marietta in a financial burden.”
Friday’s ruling is the second time in a month that a court took issue with matters involving Goldstein. On Aug. 6, Cobb Superior Court Judge Adele Grubbs ruled that the attorney for Waleed “Lee” Jaraysi violated State Bar rules by secretly meeting with Goldstein at a local Krystal restaurant last fall to discuss a lawsuit between the city and Jaraysi over a half-built building Jaraysi owned that has since been razed.
The city is also seeking attorney’s fees in that case.