City vs. councilman ruling postponed
by Rachel Miller
August 03, 2013 12:18 AM | 2129 views | 2 2 comments | 36 36 recommendations | email to a friend | print
Attorney Richard Wingate, left, and Marietta City Councilman and owner of Marietta Properties LLC Philip Goldstein discuss testimony Friday as Attorney Ed Hallman, right, listens in during a hearing before Cobb Superior Court Senior Judge George Kreeger.  The City of Marietta is trying to recuperate from Goldstein's company $75,000 in attorney’s fees from a previous lawsuit. <br>Staff/Kelly J. Huff
Attorney Richard Wingate, left, and Marietta City Councilman and owner of Marietta Properties LLC Philip Goldstein discuss testimony Friday as Attorney Ed Hallman, right, listens in during a hearing before Cobb Superior Court Senior Judge George Kreeger. The City of Marietta is trying to recuperate from Goldstein's company $75,000 in attorney’s fees from a previous lawsuit.
Staff/Kelly J. Huff
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MARIETTA — Parties on both sides of the courtroom were anxious to end a two-year battle between the city and Councilman Philip Goldstein on Friday, but the final challenge over legal fees will not be ruled on for another month.

Cobb Superior Court Judge George Kreeger heard arguments Friday from the city of Marietta asking for payment of $75,000 in legal fees from Marietta Properties LLC, owned by Goldstein.

The original case stems from a lawsuit initiated in 2011 that has gone through three rounds with the appellate courts, resulting in victories by the city.

Kreeger said he will be on vacation for three weeks and does not expect to make a decision until September.

“It would be nice to be done,” Goldstein said.

In April 2011, Goldstein’s company filed a lawsuit claiming efforts were illegally being taken by the city to prevent him from constructing a five-story building at 77 North Park Square in downtown Marietta that would be 66 feet tall.

On Oct. 12, 2011, the city ordinance was changed by the City Council to limit the height of new buildings fronting Glover Park to 42 feet.

Mayor Steve Tumlin said the ordinance was six to seven months in the making.

“It didn’t just pop up,” Tumlin said.

Goldstein would not comment on whether he thinks he was the target of the ordinance, or if he thought attempts to force him to pay the city’s legal fees amounted to further harassment.

On Friday, the city’s attorney, Doug Haynie, said the key position is that Goldstein never applied for a building permit, so no approval was withheld to justify a suit in the first place. He described the suit as frivolous and said it was not substantial enough to use the city’s tax dollars to pay lawyer fees.

Goldstein’s attorney, Richard Wingate, of Hallman and Wingate in Marietta, reiterated that Marietta Properties LLC had a certificate of approval from the city’s Historic Board of Review, which is a prerequisite to getting a building permit.

Since Goldstein predicted that the ordinance would be changed, Wingate said there was no point to spend thousands of dollars to finalize development plans if the building permit was going to be denied.

“He went and asked the court for guidance,” Wingate said.

Wingate said the legal effort to question the city’s new law, which had not yet been tested, gives the case merit and justifies the city covering its own attorney costs.

The property owned by Goldstein has sat vacant and fenced off since the 1917-era building was demolished in the fall of 2010.

Goldstein did not comment when asked if the long ordeal has made him less inclined to build on the lot, or if now that the fight is ending there is a new plan for the property.

Next case

If Marietta Properties LLC is found liable for the city’s expenses, then $33,770 of the full $75,000 amount in legal fees, which were paid to a second city attorney assisting in the case, should be removed from the bill, according to Goldstein’s attorney.

Wingate said the city did not have permission to hire Dana Maine, with the Atlanta firm of Freeman Mathis and Gary, since the decision was not made by a vote of the City Council.

Instead, the contract was awarded by a three-member council committee, composed at the time of Tumlin, former Councilmen Van Pearlberg and Councilman Jim King. Councilman Andy Morris has since filled Pearlberg’s seat.

King attended Friday’s hearing, along with Tumlin, who was seated next to the city’s attorneys.

Haynie said Goldstein’s attorneys never challenged Maine’s involvement in the case before now.

“You have Mr. Goldstein’s LLC telling the city who they can hire and who they can’t,” Haynie said.

Kreeger ruled on the original case in June 2011, and since then Haynie said 10 appellate court judges have reviewed and upheld his decision to throw out the case.

Goldstein’s attorneys filed appeals with the Georgia Court of Appeals, which ruled in the city’s favor twice, and in December a petition to present the case to the Georgia Supreme Court was denied.

When asked how he felt the hearing Friday went, Goldstein said, “The judge will tell us.”

Comments
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MAY-RETTA SURVIVOR
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August 05, 2013
Gone for 3 weeks? It would be nice if the Judge took Gold$tein with him... We could all use the rest!
Just Wait
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August 03, 2013
How nice that the judge takes 3 weeks vacation and just lets justice stand still while he is gone.
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