An attorney suing the city of Sandy Springs for rejecting his plans to build a house on land containing a little-known historic cemetery may have trouble proving he has a clear title to the property, records show.
The city on Sept. 27 responded to the lawsuit, saying that the property was intended for “perpetual” use as a cemetery. The city has asked a Fulton County Superior Court judge to dismiss the lawsuit.
There could be other descendants of the Confederate veteran who is buried there that have an interest in seeing the cemetery left alone.
Henry and Wanda Cline in July sold the 1-acre parcel containing Heard Family Cemetery for $1 to their daughter and son-in-law, Stephanie and Christopher Mills. Christopher Mills, a real estate lawyer, filed the lawsuit against the city in August because city officials denied his application for a building permit.
The cemetery is an undeveloped space surrounded by million-dollar homes and shaded by tall trees. Dead leaves carpet the ground between the gray headstones. The Clines obtained it by paying the delinquent taxes for the property. Cemeteries are tax exempt, but the property may have been placed on the delinquent list by accident.
The Clines were able to take control of the property, located behind their home, after a descendant of Judge John Heard gave up her rights to it.
Heard was a Confederate veteran and the Heard Family Cemetery has graves dating back to the 1840s. Federal troops crossed the Chattahoochee River at the site during the Civil War. There’s an historic marker in front of the field of graves noting the event.
A recent development could muddy the Mills’ plans. Larry Specht claims he is the great-grandson of Judge Heard. And he may not be the only undiscovered Heard descendent.
“Judge Heard had 23 children,” Specht said, while adding he is unsure how many other descendants are alive. Specht has a thick family scrapbook, filled with pictures, clippings and other information about the family.
In his lawsuit, Mills said that in 2007, Mary Ann Elsner, a Heard heir, legally transferred the property to the Clines, who then sold it to the Mills, who now own it. Mills said in the lawsuit he can build on the property because it was sold outside the Heard family. He also says the “restrictive covenant” requiring the property be used as a cemetery is unenforceable.
Mills has declined to comment on the dispute. The Clines have not returned messages seeking comment.
In its response, the city of Sandy Springs said the requirement to use the property as a cemetery is not a “restrictive covenant”.
“In fact, the subject property as referenced in (Mill’s) complaint was declared by deed to become a ‘family cemetery’ and has been dedicated for this purpose by the burial of individuals which use is perpetual and cannot be defeated by the passage of time,” the city’s response reads.
The property’s status as a family cemetery was established in 1900 when Judge John Heard executed a deed setting the land aside.
“This deed is made for the purpose of maintaining and keeping perpetually the property described above, for a family burying ground, for the grantor and his heirs, and the same is to be used for said purpose only,” the deed says.
The deed also says the property could be used for burial ground by the family of Heard’s brother.
Florida-based American Lien Fund purchased a tax deed on the property at an auction in 2006. Records do not provide an answer as to why it ended up on the delinquent tax list.
Fulton County Chief Appraiser David Fitzgibbon said county officials were unaware the property was a cemetery until 2006, when a neighbor contacted them after the sale.
Judie Padgett, a neighbor who lives directly across the street from the cemetery, said the county has been trying to sell the property for back taxes since the late 1990s.
“I went to the Fulton County annex at that time and said cemeteries are not supposed to be taxed and they looked around and investigated it,” Padgett said. “That’s been 15 years ago. I thought all of that had been taken care of.”
She said she was surprised when she learned in 2006 that the property had been sold at auction.
Old property transactions and deeds show the property clearly marked as a cemetery.
The tax deed American Lien Fund purchased in 2006 contains incorrect information. The deed refers to a different and much larger piece of property, a fact noted in a report the city received in 2007 from real estate lawyer Don Hicks. The city at the time was responding to an earlier proposal to develop a home at the site.
“It appears to me that the Tax Commissioner may have made a mistake in its Parcel ID reference and also in offering for sale a parcel which is not subject to ad valorem property taxes,” Hicks wrote in his 2007 report to City Attorney Wendell Willard.
Hicks’ letter says that the parcel the tax deed actually refers to is 33.17 acres that Heard’s descendants sold to a developer in 1978, minus the acre which contained the cemetery.
The city has tried to protect the historic burial site, passing an ordinance in 2008 to restrict development on land containing cemeteries in response to a previous plan to build a house on part of the Heard Family Cemetery.
Padgett and the other neighbors, including the Clines, rallied in 2007 to save the cemetery after learning about the tax sale.
Mary Ann Elsner, listed as Mary Ellis in most of the older records, signed legal documents claiming to be the sole surviving heir of Carl Heard Jr., her brother, who was a descendant of Judge John Heard.
But public records indicate that not everyone was sure she was the only heir.
The neighbors were trying to get control of the property by Dec. 31, 2007, the deadline for Elsner to pay the back taxes the county claimed she owed.
The Clines’ attorney, Robin Phillips, sent the Clines an email on Dec. 5, 2007, saying they needed to convince Elsner and any remaining heirs to transfer their rights to the property.
“Otherwise Mrs. Elsner and the heirs will still have better title than you,” Phillips wrote. “You have got to get them out of the picture and the only way to do that is to get them to assign their rights to you.”
In addition to the money to repay the taxes to buy the tax deed back from American Lien Fund, Elsner wanted $10,000, according to an email Wanda Cline forwarded to her neighbors that included her attorney’s email. Wanda Cline’s email said if the couple offered to pay Elsner, the developer from Florida might offer Elsner more money than $10,000, triggering what she called a “bidding war to profit Mary Ann.”
In the email exchange, Phillips questioned whether it was wise to pay Elsner $10,000 to give up her rights to the cemetery.
“It is getting costly, especially if she is not the surviving heir to Mr. Heard,” Phillips wrote, adding that if Elsner was not the sole heir it would likely cost the Clines more money.
Phillips declined to comment. Elsner’s husband, Bob, spoke briefly with a reporter saying only that he and his wife did not think the cemetery should have been taxed. He referred further questions to his wife, Mary Ann, who did not return messages seeking comment.
Tax records on the Fulton County Board of Assessors website show the Clines paid Elsner $10,000 on Dec. 21, 2007. On that day she assigned all of her rights, title and interest in the property to the Clines.
Sandy Springs City Attorney Cecil McLendon alluded to the possibility of other Heard descendants in his response to Christopher Mills’ threats to sue the city. McLendon told Mills that if his lawsuit succeeds, he will still have to prove he has uncontested ownership.
“Thus it will be your burden to unambiguously show that you are either fully vested in the property or have the consent of all persons with an ownership interest,” McLendon said in an Aug. 7, 2012, letter to Mills.
The neighbors said they discussed in 2007 pitching in to buy the tax deed back, but said the Clines agreed to pay the money to take control of the property. The neighbors said they thought the Clines were going to donate it to a historic preservation organization and the Clines’ email exchanges indicated that as well. The Clines paid $38,400 to settle the tax debt and obtain the property.
The property remained in their possession until they sold it to their daughter and son-in-law.
The neighbors have set up a legal defense fund and Specht has hired attorney Wright Mitchell to pursue his interest in the cemetery.
“It’s just a hurtful thing to think that anyone would want to take something that’s historic and treat it as just a piece of dirt,” Padgett said.
Interested parties
Unraveling the details about the Heard Family Cemetery required extensive research, analysis and interviews. Here are a few of the key facts and sources cited in the article.
Heard Family Cemetery: Located at 0 Heards Drive, this historic family cemetery contains graves dating back to the 1840s and was the scene of federal troops crossing the Chattahoochee River during the Civil War.
Judge John Heard: The original owner of the cemetery and surrounding property. He fought in the Confederate Army and was a well-known resident who lived until his 90s. He is buried at the cemetery.
David Fitzgibbon, Chief Appraiser, Fulton County: Fitzgibbon said Fulton County was unaware that the property contained a cemetery when it was sold for unpaid taxes in 2006.
American Lien Fund: A Florida real estate investment group that bought the tax deed for the Heard Family Cemetery in 2006.
Wanda and Henry Cline: Parents of Stephanie Mills. In 2007 the Clines paid the taxes on the property and took control of it from Heard’s descendant, Mary Ann Elsner. The Clines in 2012 sold the property to their daughter and son-in-law, Stephanie and Christopher Mills.
Christopher Mills, local attorney: Christopher Mills and his wife Stephanie received the property from Stephanie’s parents, Henry and Wanda Cline. Mills wants to build a house on the raw land portion of the property and is suing the city of Sandy Springs for denying his building permit.
Mary Ann Elsner (Mary Ellis): A Heard Family descendant who relinquished her control of the property to the Clines.
Larry Specht: Says he is the great-grandson of Judge John Heard.
Wendell Willard: State legislator and attorney for the city of Sandy Springs.
Cecil McLendon: Attorney for the city of Sandy Springs.
Don Hicks: Attorney Sandy Springs asked in 2007 to research the title of the Heard Family Cemetery.
Robin Phillips: Attorney for Wanda and Henry Cline.
Neighbors: The most-quoted neighbor in this story is Judie Padgett, who lives directly across from the cemetery. Other neighbors interviewed include Gloria Taylor and Rachel Rosner.
Public records cited: Emails, tax deeds, letters and documents contained in the lawsuit against the city.