An attempt to file a class-action lawsuit to stop the residential development of a golf course in eastern Forsyth County has failed, though it could be brought before a judge again.
Visiting Senior Superior Court Judge Albert Pickett of Augusta denied a request for class-action status, which would have allowed anyone with a similar complaint against Lanier Golf Course join the suit.
Pickett's order was filed Tuesday in Forsyth County Superior Court.
"I wouldn't say that the decision has been made at this point, but we are certainly considering the appeal," said attorney Bob McFarland Sr., who sought class-action status.
"We have always known that in all likelihood it would probably end up in an appeal."
McFarland filed the suit in October 2007 on behalf of Michael D. Peck and about 120 of his neighbors against Lanier Golf Club Inc. owners Jack Manton and George Bagley Jr.
Manton said he is pleased with Pickett's decision.
"We felt all along that based upon two title opinions from two very fine law firms that we had the right to sell the golf course" to an entity that would not run it as a golf course, Manton said.
That way, he said, the site could be rezoned and developed. "This certainly vindicates what we were told."
Peck and his neighbors, sought class-action status based on the notion that residents living around the course have an implied easement to it.
During a hearing in April, witnesses testified on behalf of Peck, as well as the golf club.
Manton, represented by attorneys Doug Dillard and Andrea Jones, testified that he didn't think Peck could represent the homeowners because he doesn't have sufficient evidence to justify a lawsuit.
The golf club is involved in another suit, filed against the county after the commission denied a request in September 2007 to rezone the course for residential development.
Development company Wellstone joined Manton and Bagley in the suit.
Wellstone reportedly wants to buy the 170-acre site and build a 772-unit residential development that includes 300-unit continuing care retirement community.
In the suit, Wellstone and the course owners contend the commission denied their request to rezone the property "in order for Forsyth County to purchase the property at less than its fair market value."
Speculation has arisen that the county wants to buy the property -- using money from the recently voter-approved bond referendum for parks, recreation and green space -- and operate the site as a golf course.
In their decision last fall, however, commissioners based their opposition on traffic and other concerns that could result from the Wellstone proposal.
That case has not yet gone to trial.
Manton said he thinks Pickett "took great pains to go through the entire case the neighborhood presented" by reviewing all depositions, affidavits, witness testimony and documents submitted before making his decision.
Among other things, the order contends: Peck is not a member of the class he sought to represent; the course is not under a restrictive covenant, which would limit the property to only being used as a golf course; and Peck did not have a guaranteed right to the course.
McFarland said with the exception of one paragraph, Pickett's order looks exactly like an order Dillard and Jones presented him.
"So you can pretty well say that he signed the order that the Lanier Golf Club owners wanted him to sign," McFarland said.
He said the paragraph in question, which addresses whether the course property can be restricted to use as only a golf course, appears to have been inserted by Pickett and "that one paragraph is the only addition that I see."
McFarland said it's common for judges to tell lawyers to present them with orders they want them to sign, but normally, the judge will pick information from both orders.
In this case, however, McFarland said Pickett did not choose anything from the order he submitted.
"Obviously, I don't think that's right, but that's what happens in this business," he said. "You make arguments and sometimes the judge goes with you and sometimes he doesn't."
Manton said settling the case against the county out of court appears doubtful, despite discussions by attorneys on both sides.
He said it is likely Pickett will hear the case either late this year or early 2009.
"Half of the case will not be a jury trial," Manton said. "Whether or not they gave us a constitutional zoning is an issue for the judge to decide.
"The inverse condemnation claim is a jury trial in a separate case in and of itself and I don't know when that one would go."
The course was closed in October 2007 and reopened in April. Manton said it likely will remain open through November and December, if the level of play stays up.
Manton said his lawyers have filed for attorney's fees in the class-action case, which exceed $85,000.
McFarland said he has 30 days to file an appeal and, if so, it would likely go to either a court of appeals or the Georgia Supreme Court.