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Mountain Park Life :: Forums :: City Issues
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Read the Lakes Litigation Final Order and Judgment

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editor
Wed Jul 27 2011, 06:07PM

Joined: Tue Jul 12 2005, 10:03PM
{LOCATION}Posts: 236
See the final lakes litigation documents issued July 21, 2011 by the United States District Court, Northern District of Georgia, Atlanta Division for City of Mountain Park, Plaintiff v Lakeside at Ansley, LLC., et al., Defendants.

Read the 34 page Final Order. (Use the Back button to return to the Forum thread)

1058_-_final_order.pdf

Read the 5 page Final Judgment. (Use the Back button to return to the Forum thread)

1059_-_final_judgment.pdf
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TaxedEnough
Wed Jul 27 2011, 10:38PM
Registered Member #338
Joined: Sat Jun 14 2008, 08:40PM
{LOCATION}Posts: 16
Let's share our favorite parts of the Final Order in this thread.

Here are two of mine (both from p.3):

The proposals [the remedies sought by Mountain Park] by the plaintiff are unreasonable. Given the evidence at trial regarding the historic amounts of sediment in the plaintiff’s lakes, placing the responsibility on the defendants of this lawsuit for removing all the sediment is inequitable. Furthermore, in light of the jury’s findings regarding negligence and causation by defendants other than Lakeside and Chatham, responsibility for at least some portion of the sediment in the plaintiff’s lakes is attributable to other defendants (who did not violate the CWA). … Finally, the finding by the jury of a mere 17 days of violations by Lakeside and Chatham when the plaintiff sought a finding of 3,514 days indicates the jury believed that Lakeside and Chatham’s contribution to be a mere fraction of what was alleged by the plaintiff. The 17-day finding is even more compelling for the conclusion that the jury believed the violations of the CWA had ended at some point prior to the trial rather than continuing until the sediment was removed as the plaintiff contended.

$2.2 million in fees and costs and this result. Brilliant.

The only good call by Council during the entire 6 year debacle was to skip the appeal.
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fern
Thu Jul 28 2011, 05:57PM
Registered Member #380
Joined: Thu Mar 19 2009, 08:14AM
{LOCATION}Posts: 10
Here are my favorite parts:

Nominal Damages / Apportionment of Damages (p. 13-14)
"As to the assessment of fault, the jury found that the plaintiff was 80.5% at fault and that Lakeside and Chatham were each 6% at fault. Verdict Form at 21 [Doc. No. 1022]. Under Georgia’s apportionment of damages statute, the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages. O.C.G.A. § 51-12-33(g). Because the jury determined that the plaintiff was more than 50 percent responsible for the damages in this case, the plaintiff is not entitled to receive the nominal damages assessed by the jury."


This part is really interesting because Claire and others were so forceful and vocal that the City MUST be repaid the huge legal fees:

Attorneys Fees under the Clean Water Act (p. 11)
"In this case, the jury found that Lakeside and Chatham had violated their permits, resulting in the discharge of pollutants into the plaintiff’s lakes and streambeds for a total of 17 days. There was evidence at trial that Lakeside and Chatham became aware of an incident that resulted in sediment being deposited in the plaintiff’s lakes and streambeds and immediately sought access to the waters in order to clean up the discharged sediment. Rather than cooperate with these clean-up efforts, the plaintiff filed this lawsuit and foreclosed the ability of Lakeside and Chatham to take remedial action. Thus, the plaintiff’s actions in this case, with respect to Lakeside and Chatham, actually thwarted the underlying goals of the CWA. Furthermore, Lakeside and Chatham each made an Offer of Judgment to the plaintiff in the amount of $50,000 on February 27, 2008, well before the 5-day Daubert hearing and the 10-day trial. The plaintiff refused the offers and continued to litigate. These factors lead the court to find that the plaintiff’s goal in this lawsuit was in great part for monetary profit rather than the advancement of the goals of the CWA. Thus, there is good cause to deny fees and costs to the plaintiff. Accordingly, the request for costs and fees is DENIED."
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SP
Sat Jul 30 2011, 03:47PM
Registered Member #428
Joined: Sat Aug 28 2010, 10:59PM
{LOCATION}Posts: 7
page 9 “However, in light of the fact that developers often create new corporate entities for each development undertaken, the court does not give the history prong heavy weight in this analysis.”

page 10 “Lakeside was created solely to develop and sell lots at the Lakeside at Ansley subdivision and has had no income since 2005.”

Our side did not understand the development business but it sounds like the judge did.

It appears by the over 3000 day time frame that we thought that the developers did the home construction (and were liable for that time frame too but they didn’t do the home construction) and at the point that the development was allowed to build on the lots, the developers were not liable for erosion control and the builders were.

This day approach to damages was a flawed approach. It would have been impossible to hold a developer liable for 3,514 days for erosion.
It sounds like it didn’t matter if it rained or not and what type of construction was being done and erosion was everyday no matter what, which is impossible and with no variables like weather.
Also that developers did not own some of the properties and the builders would have been responsible for that portion of the erosion, if it did exist. The builders inspectors would have done something about it and there would be documentation of any problems and there probably aren’t any.

1) A developer forms a legal entity and buys a tract of land in it’s name. He prepares a development plan and gets a permit under that entity that he’ll most likely never use that entity again.
2) It takes 60 to 90 days to grade for streets and the lots and then installing the utilities.
When the development is under construction everything is rigidly inspected including erosion control. All problems must be corrected before the subdivision is recorded giving the developer authority to sell the lots and home construction can begin and this includes that they must not have erosion problems. The government does not want to be responsible for the problems once the development is recorded to sell lots and that is their primary purpose in inspecting the developers work and once again and to make sure that there aren’t any erosion problems.

The inspector would miss an incident/wash out at any one day but not continual erosion problems for 3,514 days of it or even a week of it would be unlikely.

3) Once the inspectors sign off (including the inspector for erosion control) that everything including erosion control is in compliance the tract of land is recorded and broken down into lots and the right of way and common areas are designated and recorded which takes away the developer’s responsibility for them.
At that point almost everything except the lots being built on becomes the responsibility of the government and that is why they inspect it to make sure they don’t have any street or erosion maintenance they would have to do later.
4) The developer transfers or sells the lots to builders, which operate under their own legal entity and the builders are liable for what they own including erosion control and the developer is not responsible for the lots after they are sold.
The home builders are responsible for what they do on their property or their effect on public and common areas and they are being inspected. Where is the documentation of problems of this magnitude?

At this point in time I only mention this to illustrate what a mistake an appeal would have been.
There can be exceptions to parts of this, like sometime a developer holds a few lots in the development.

If the inspector for erosion control received complaints about erosion he would have not signed off on it, there are exceptions with politics and campaign donations but the Federal and State Agencies would have recieved complaints too so such a large erosion problem would not have been ignored or corrected.

If erosion did take place of that magnitude the Federal and State Agencies would have been there if the time duration of a 3,514 days and it would have been in the newspapers.

Three missed opportunities that had possibilities to help the city and the lakes.

1) The great sewer main behind the homes on Lakeshore Dr. Rather than attempting the impossible to stop it, to have asked Fulton County for what help we could have gotten at the point that we had the project stopped for a few days. The lakes were drained.
2) The present development lawsuit could have been negotiated for a profit if the legal fees were managed properly.
3) Not asking for anything when the stimulus was given understanding why this occurred but it still was another missed opportunity.


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Client-9
Sun Jul 31 2011, 12:44AM
Registered Member #311
Joined: Wed Mar 12 2008, 12:36PM
{LOCATION}Posts: 30
Having not read the final documents, but instead relying on a modecum of common sense and observations during the course of the fiasco, it seems that the city's environmental attorney/firm should be sued for malpractice and some of the elected officials in office while the invoices were being paid, charged with malfeasance or at least misfeasance. I suspect that before Martin Shelton skeedaddled out of town he had the mayor and council sign an agreement preventing recourse for his inferior performance. What I would like to understand better, is who hired Shelton; what was promised; and why did none of the elected officials or the city attorney realize that the city was getting screwed along the way.

Eliot

Millions wasted and no accountability?!?
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SP
Sun Jul 31 2011, 02:39PM
Registered Member #428
Joined: Sat Aug 28 2010, 10:59PM
{LOCATION}Posts: 7
I would ask the mayor at the time about the hiring and the legal fees option discussed with Martin Shelton. He could be more comfortable with verbal communications. I’m not sure how much authority the mayor had in any of this is why I think he could be the most reliable source of information. I think he would tell the exact facts, who was there and if there were alternative legal fee options discussed and who approved the bills.

One thing to consider, was there advice given by the city attorney at that time and it was not taken.

Jim Wright
Phone 770-364-0449
-email-
realtorjim at att.net
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Harry
Wed Aug 03 2011, 12:59AM
Registered Member #460
Joined: Fri Mar 11 2011, 12:49AM
{LOCATION}Posts: 10
Well guess whatevr advice (given by any of the lawyers, city and environ and our
"expert" Claire) to council was only as good as the individul lawyers and paid "expert" were. That why the council had hired 'em in the first place. Sound like defective lawyering on all sides-except the defendents. Guess we learned the hard way. Man we got takn to the cleaners and back. jmoo. Cant beleive our recent council members would have kept on funding the law suit if they know about Chatam and the devoplers flipping there corporations over and over. Are we suppose to think every city attorney and an entire 2 law firms, (as the "BRAIN" started off at one and left to go work at another), and the BRAIN's whole legal team and Norm... I mean Claire, never once asked or looked at "development" law and there status, at any stage at all? Seems lik a pretty basic issue to me and how that got overlook is unbeleivable. Somebody somewhere owes it to us to answer that one. Heck we paid millions and deserves some answers. If we'd known that one answer to this basic question we could've save ourselves years and money. But no some people needed to be smarter than others. Had to be right about everything. We're the laughing stock of the business community. Wait, make that the whole metropolatian ATL. Come to Mt. Pk: "you too can get rich quick and easy out here."

Our lawyer was the "best" in the city and environmental law? Who kept pushing for appeals and why? Thank goodness our council knew better than to appeal. Why was our "expert" and council always on opposite sides about the "BRAIN"? Our paid expert and council were always fighting so why the heck did she stay on? No lack of ineptness out here too. Nuff to go around for everyone. Now that is something the council need to answer on imo. Makes you say hmmm.................No one ever asked about the developers status and timeline and LLC questions to council or Nor.. I mean Clarie? Well I'm pretty sure it WAS asked to SEVERAL seated city councils and her over YEARS and YEARS, so the question is WHY wasnt it answered? All those excutive sessions and all that money and no on has to answer nothing or account for anything! Voting won't matter next time because who in there right mind would run? Well out here I could think of one or two who would.

Yep we bought us some real expensive legal representation alright. The "BRAIN"(s) of the operation made out just fine. Shameful lawyering on the environment issue, but I thik we had a good cause as has anybody looked at Lake Garret this summer? The water don't move any more, clear its choking and oldtimers are says it never been this bad. Losers are the property owners, everybody else got paid top dollar to run our city down. This mess affects everyone property value and if it look this bad now how about in 10 years? This place looks like a money pit and all we wanted was to fix what was done to us. No matter what the verdict was we got dumped on by those people for sure. Good thing I'm here for the long term. hahahaha. Renters be happy b/c you dodged a bullet.

The lawyers and the hired help all made money, got promotions, getting richer on the backs of a poor struggling community that got **** on by those who knew better. Sounds just like Washington politics as usual.
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Trish
Wed Aug 03 2011, 08:49PM
Registered Member #10
Joined: Thu Jul 21 2005, 04:47PM
{LOCATION}Posts: 89
Client-9: As to your post wondering why none of the elected officials challenged the lawsuit…

When first elected to office in 2005 to start service in 2006, former Councilman Frank Baia continually made efforts throughout his four year term to convince fellow council members that the lawsuit was wasting money, demanded public transparency for citizen input and, most likely, would not end well. He constantly stressed that, if the litigation was to continue, it should proceed only with attorney's fees on contingency -- and retroactively against the then-current outstanding balance. In numerous motions he made at Council meetings, that almost always resulted in heated debate and ultimate rejection by a 6 to 1 vote, he could not gain council support during many attempts.
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SP
Fri Aug 05 2011, 01:53AM
Registered Member #428
Joined: Sat Aug 28 2010, 10:59PM
{LOCATION}Posts: 7
A major strategy mistake was not to give the developers a chance to correct their discharges into the lakes. In the eyes of the law they had to be given the opportunity to correct an acknowledged mistake but were denied that by us.

Possibly after the “Brain” lost with Daubert Hearing and could not use his supposed experts he had to come up with an alternative plan or the case was at a halt and he couldn’t keep billing us. Since the penalties were by the day in the cwa, he came up with this day approach and accused the developers of almost all the days since the development started to the present giving no realistic consideration to what time frame the developers were preparing the lots to sell forgetting about that the property was sold to the builders and even to the new homeowners. This was a little obvious with his day approach. Get all the days you can.

The immorality of this and our witnesses’s actions was obvious to the judge and jury. It appeared to them that it didn’t matter to us if the claims were legitimate or not and we wanted all the money that we could get and we didn’t care whose lives we ruined to get it.
To accomplish this, we gave the “Brain” a blank check.

I agree with the mayor, let’s move on. You’ve got to know about erosion to see it, a trained eye type of thing.
All these supposed experts riding around here and no one noticed that large portions of the golf course at the creek banks are eroding into the lakes. Who wouldn’t be afraid to bring that up here, another blank check would be given. You don’t sue for this, you call up and worry them and also complain to the agencies if they don’t correct it, just like we should have done for those developers if they had been allowed to correct it and we weren’t satisfied.
The only solution for a golf course that wants the most fairway possible which means a steep slope creek bank is to concrete the entire creek and bank in is what I’ve seen done (Ansley, Piedmont Park). It’s difficult to do it after the course is built due to rerouting or piping the creek and letting the soil dry out to concrete it as the creek must be dry. If they don’t want to do that then slope the banks 45 degrees and rip rap them but they will lose playable ground. It’s their choice.
If the city council fixes this one, I agree to attempt to find them another.

What to be afraid of in Lake Garret is bacteria growth but I think dead fish floating around and the water color would be a signal for that and hopefully we’ll never see that.

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Jim Wright
Fri Aug 05 2011, 09:13PM
Registered Member #70
Joined: Sat Sep 17 2005, 01:10AM
{LOCATION}Posts: 246
I received a call today advising that my contact information had been posted to this website. That's great, and I hope you will keep me in mind for all your real estate needs.

I am still a full-time / full service licensed broker working in North Metro Atlanta. I would like to offer the convenience of my website to all readers searching for homes; land; or investment properties. I can also take care of your incoming and outgoing referrals, professionally.

Please keep in mind that I am a skilled negotiator and an Accredited Buyer's Representative. My many years of experience listing and selling property in Mountain Park can be put to work for you; your family; or your friends.

My new home office number is: 770.887.6300.
Please visit my user friendly website: http://jimwright.com where you can search for all types of properties regardless which agent or company has them listed.

Thanks in advance for your referrals and best regards to all.

Note: Please contact me directly if I may be of assistance as I am no longer a regular visitor to this community website. Thanks again!


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