By Tom Oder
The temporary court order that halted construction of the controversial trail in Brook Run Park was lifted on Feb. 4, but it appears opponents of the city’s plan aren’t giving up.
Shortly after DeKalb County Superior Judge Tangela M. Barrie announced her decision to lift the order, former Dunwoody City Council member Danny Ross presented city officials with a petition asking they return to the original trail plan.
The petition, signed by 667 people, was written by the newly formed Friends of Dunwoody Park, and has been circulating around the city and online at htwww.change.org/petitions/brook-run-park. Based on ZIP codes placed beside names on the petition, people who signed it live in Dunwoody and nearby areas, including Brookhaven, Sandy Springs and Chamblee.
Barrie’s ruling clears the way for the city to build a 12-foot-wide, concrete multi-use path through Brook Run. The city’s plans call for that path to be built in two phases. Construction plans for Phase 1 will require the removal of more than 330 trees.
Shortly after the judge ruled, city officials contacted the contractor for the trail, Lewallen Construction in Marietta, and asked them to proceed with construction, city spokesman Bob Mullen said. “The judge’s ruling allows the city to move forward, and construction will begin as soon as the contractor can mobilize its crews,” Mullen said.
Attorney Jenny Culler, who represents 25 plaintiffs in the case against the city, said immediately after the ruling that she felt confident that the plaintiffs would continue with their legal action. If the legal action does continue, Culler said she has asked for a jury trial.
“We will have to work efficiently with the lawsuit,” Barrie told both parties. The issue becomes timing, she said, and the city’s construction schedule. The city is facing a December deadline on the trail, due to a grant the city has received to build the path.
Barrie also put the city on notice that if it does begin building the trail it should be mindful of requests the plaintiffs have made. She specifically mentioned the installation of a storm water storage system. She also pointed out that the city could be at risk if it begins construction and the plaintiffs win the lawsuit.
“The court wants this on a fast track, and the judge is leaving open the possibility the plaintiffs will prevail,” Culler said.
Barrie said the burden of proof in the hearings on Jan. 31 and Feb. 1 fell on the plaintiffs to show that building the 12-foot concrete trail would cause irreparable damage to the homes of the plaintiffs, all of whom live in the Lakeview Oaks subdivision that abuts the western edge of Brook Run Park.
She said that even though they had done a hydrology study, they failed to meet the high legal burden of an injunction because they did not do a flood analysis study that would show what damage might happen to the homes of the plaintiffs if the city builds the trail according to its current plans.
The plaintiffs say that it’s the city’s responsibility to do the flood analysis.
The judge said the hearing also came down to a battle of hydrology experts. Every time the plaintiffs made an effective argument, the city came back with an equally effective argument, she said.
In the end, she added, “it became a tilting scale.”
The plaintiffs’ arguments were not convincing, Barrie said. The city had voted to do the project, and therefore she said, she was denying the plaintiffs’ motion for an injunction to stop the trail in its tracks.
“We have options,” said Beverly Armento, one of the original plaintiffs in the lawsuit. “Water is not the only issue.”
Other concerns about the trail cited by opponents of the city’s plan include:
— In a survey leading up to the city’s master plan, 80 percent of the respondents asked for a walking trail, not a multi-use trail.
–The trail plan originally approved by City Council was an 8-foot-wide trail.
–The original plan called for the trail to be 1.2 miles long and cost $132,000. With a $100,000 grant, the final cost to the city was $32,000.
–The new plans call for a trail .7 miles long in Phase 1 that will cost $420,000.
–The city has not yet conducted an impact study on Phase 2 of the project or set a completion date.
“The ideal outcome would be to go back to the original plan for a previous path that would require very little tree removal,” Ross said.
The original plan is also less costly to the city, he said.
“Our view is that we have 47,000 residents we have to concern ourselves with,” Dunwoody Mayor Mike Davis said. “We understand the view of the plaintiffs, but we need to make our park available to our entire cast of citizens — the handicapped and moms with strollers.”
The city plans will actually reduce water going into the Lakeview Oaks subdivision where the plaintiffs live, Davis contended. “We’re actually doing them a favor,” he said.