The lawsuit seeking to stop the construction of the controversial trail through the forest in Brook Run Park has gone to the state Supreme Court.

The 23 plaintiffs in the lawsuit announced Feb. 12 they have appealed their case to the high court. They asked the justices to reinstate an earlier court order stopping construction of the trail. DeKalb County Superior Court Judge Tangela M. Barrie lifted that order Feb. 4 after a two-day hearing.

The plaintiffs have also filed a request with Barrie to reinstate the order halting trail construction while the appeal is before the state’s highest court.

The city announced on Thursday, Feb. 7 that it is moving forward with construction of Phase One of the trail in Brook Run and anticipates on-site work to begin this month.

City spokesman Bob Mullen declined to comment on the appeal.  “Because of the ongoing litigation in the matter, the city cannot comment or speculate on the case,” Mullen said. “As stated previously, the city is working with our contractor in moving forward on trail construction based on the decision coming from Judge Tangela Barrie on February 4.”

Jenny R. Culler, the lawyer for the plaintiffs, argued in her notice of appeal that Barrie erred in two portions of her ruling.

Culler contended Barrie erred in ruling that the plaintiffs had not proven the extent of the threatened damage to their property. There is no dispute that the construction of the multi-use concrete trail will increase both the volume and rate of flow of storm water from the park onto the plaintiff’s properties during and after rains, Culler said in the appeal. This, she said, constitutes trespass, which itself is an injury.

Culler also said Barrie erred in the portion of her ruling in which she found that the trail is in the public interest. There is no evidence that the temporary injunction would harm the public interest and therefore the court shouldn’t have taken that issue into consideration, Culler said in the appeal.

“I don’t know if the Supreme Court would fast track the litigation, but if Judge Barrie does not give us an injunction pending the Supreme Court’s decision, we can also ask the Supreme Court for that relief,” Culler said Tuesday.  She also said two plaintiffs had dropped off the suit, though they remain supportive of the litigation and the plaintiffs’ position.

The temporary restraining order halting trail construction was issued on Dec. 13. That was just four days before construction had been scheduled to start on Dec. 17, Culler said after being granted the temporary order.

At a brief hearing on Jan. 4, Barrie extended the order until a full hearing on the matter on Jan. 31. That hearing lasted two days and centered on testimony from hydrology experts for the plaintiffs and the city. Barrie lifted the restraining order Feb. 4.

–Tom Oder

Joe Earle

Joe Earle is Editor-at-Large. He has more than 30-years of experience with daily newspapers, including the Atlanta Journal-Constitution and was Managing Editor of Reporter Newspapers.