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Golf course battle drawing to a close

Litigation has spanned years

POSTED: December 21, 2012 12:35 a.m.
 

Lanier Golf Club’s neighbors have dropped a lawsuit against its owners that has spanned more than five years in court.

The case originated in 2007 when Michael Peck, who lives adjacent to the 172-acre course, filed suit against Lanier after the owners announced plans to sell the site for development.

Peck’s suit was based on the grounds of an implied covenant when he purchased his property. Had the court agreed, it could have stopped development of the course on Buford Dam Road.

The Georgia Appeals Court ruled in March that Peck did not have implied easement rights. That followed a May 2011 court decision granting summary judgment to the course owners, Jack Manton and George Bagley Jr.

The 25 other plaintiffs in the case filed notices of dismissal shortly after the Georgia Supreme Court denied a petition to hear the appeal in October.

The attorney for the residents, Bob McFarland Sr., withdrew from the case as those he represented left, and he hired Rafe Banks to represent him in the aftermath.

Though the case for an implied easement has been dismissed, arguments continued Wednesday in Forsyth County Superior Court as the course owners’ motion for attorney’s fees was heard by visiting Judge Frank C. Mills of Cherokee County.

The owners filed the motion based on the grounds of a frivolous lawsuit. Mills announced Wednesday that he will grant partial payment of attorney’s fees.

“It’s not a totally frivolous case,” he said. “I don’t think this case was brought for harassment or delay … I think it was brought because the plaintiff felt like he was losing something he was entitled to.”

However, Mills said there was a point in the case when Peck and McFarland should’ve corrected some facts in the complaint that had been shown during trial to not be entirely truthful.

He added that the first judge, though he was supposed to rule only on whether to grant class action status, should have given the residents “a clue” when he ruled Peck didn’t have a case to represent the class.

Mills estimated that from that point in August 2008 on, he will be likely to grant the recovery of attorney fees for the owners.

He then asked the two sides to come to an agreement on how they would like to handle determining those amounts.

Attorney Andrea Cantrell Jones, representing Lanier Golf, said the owners made an offer, but received no counter.

Banks sought an opportunity to “lay out the evidence and let the court rule.”

To that effect, Mills ordered Lanier Golf Club to submit a brief with dates and bills by Jan. 4, after which the residents’ side will have 10 days to file a brief.

He will then either issue a ruling or hold a hearing, possibly in January.

Jones called the case “a poster child for abusive litigation,” and sought payment of more than $100,000 in the owners’ fees on those grounds.

“These 25 plaintiffs never produced one piece of evidence that would validate their claims,” she said.

Banks contended that McFarland had been using a process new to Georgia but accepted in other states to prove an implied easement.

“Mr. McFarland had a good-faith intention of trying to expand the evidentiary method,” he said.

The 172-acre site remains a golf course, though the property was rezoned by the county commission in July 2011 on the order of a judge.

The rezoning closed out a lawsuit the golf course owners filed against the county after the commission denied their request in 2007 to rezone the site from agricultural to a master planned district.

The front 93.8 acres were rezoned from agricultural to a master planned district, with a conditional use permit for a continuing care retirement center.

The 78.6 acres in the rear of the site were rezoned from agricultural to Res 2, or residential with 1.5 to 2 units per acre.

That rezoning spurred two suits in August 2011 against Forsyth County and the golf club.

Resident group Save Lanier Golf Club dropped its suit in January.

The only other pending suit is one filed by Pedro Pedro Techologias, a corporation run by William Pulford out of his home on Fairway Lane.

 

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