The city of Brookhaven’s attempt to take 19 acres of land for the Peachtree Creek Greenway was an illegal “bad faith” deal, a DeKalb County judge has ruled.

The ruling wipes out the land-taking and requires the city to pay attorney’s fees but allows a new eminent domain attempt. The city wants the land on Briarwood Road to create a trailhead for the new park and trail system.

The 19 acres the City Council is seeking acquire through eminent domain has the address of 1793 Briarwood Road. (Google Maps)

DeKalb County Superior Court Judge Clarence Seeliger ruled Feb. 27 to grant the property owners’ motion to “set aside, dismiss, vacate and annul” the condemnation. The city wants to acquire the land on Briarwood Road for a planned trailhead for the Greenway.

Seeliger’s ruling noted the city violated the Landowner’s Bill of Rights and Property Action Act approved by the General Assembly in 2006. The city is ordered to pay attorney’s fees to the property owners as part of the ruling. The amount of the attorney’s fees is not known at this time.

The city can, however, try again to use eminent domain to obtain the land.

The city declined comment due to pending litigation. The attorney for the property owner also declined comment.

State Rep. Wendell Willard, (R-Sandy Springs), former city attorney for Sandy Spring who has worked on several eminent domain cases, said the ruling essentially says the city went about the process illegally and must start over.

“He [Seeliger] is pointing out on the city’s part [the failure] to follow procedures,” Willard said. “Therefore, he stopped it. Now the city has to start over again.”

Willard added he had only seen one other ruling like that in the Brookhaven case, that by the state Supreme Court in 2017 in what is known as the City of Marietta v. Summerour. In that case, the owner of a small grocery story successfully defeated the city’s attempt to take his property to be used for a city park.

While the city of Brookhaven moved forward to condemn the land for its own park, the state Supreme Court was considering the Summerour eminent domain case.

In his ruling, Seeliger said the city violated several sections of the state’s Landowner’s Bill of Rights and Property Action by: failing to not make every reasonable effort to acquire expeditiously real property by negotiation; not giving the property owner the opportunity to accompany the city’s appraiser during an inspection of the property; and not providing a written summary for the amount it wanted to pay for the property.

Seeliger also quoted the section of the law the city violated that states, “In no event shall the condemnor act in bad faith in order to compel an agreement on the price to be paid for the property.”

The property is owned by Lifestyle Family Group LLC and Mark Morgan. They say the property is now ripe for a townhome development and is worth perhaps more than $2 million, much more than the $340,000 the city was offering. They are represented by Christian F. Torgrimson, managing partner of Pursley Friese Torgrimson.

Torgrimson in January filed a motion to dismiss the condemnation, saying the city was “acting in bad faith and showing egregious conduct”.

In the January motion, Torgrimson outlined the city’s alleged actions that Seeliger agreed with in his ruling. She also noted in the motion that on Sept. 19, 2016, City Attorney Chris Balch offered the property owners $120,750, stating the price “represents 5 percent premium over the appraised value obtained by the city,” according to the motion. No appraisal was included with the price offer, according to the motion.

On Sept. 21, 2016, Morgan made a counteroffer to sell an easement of the property for $120,750 or sell the entire property for $495,000, “despite the fact that at the time he did not believe it represented fair market value,” according to the motion.

The motion says that Balch responded not with further negotiations, but instead “threatened Mr. Morgan with legal action and repercussions if he did not negotiate.”

Morgan was “shocked and understood Mr. Balch’s statements to be a direct threat of condemnation in order to force him to sell,” according to the motion. On Sept. 29, 2016, Balch emailed Morgan again and acknowledged his “unduly harsh” response and increased the city’s offer for the 19 acres to $190,000.

No agreement could be reached, however, and the City Council voted unanimously June 29, 2017, to file for an eminent domain taking in DeKalb Superior Court.

On Sept. 20, 2017, the city initiated the condemnation in DeKalb Superior Court and on Nov. 6, 2017, following the October state Supreme Court ruling in the Marietta vs Summerour case, the city met with the property owners and their attorney and a court-appointed special master, or mediator, to try to come to a price agreement for the Briarwood Road land. At that meeting, the property owners raised the motion to set aside “on the grounds of bad faith negotiations and violations of the requirements of the Landowner’s Bill of Rights and Property Protection Act,” according to Seeliger’s ruling.

The special master recessed the meeting until Nov. 7, 2017, to give the city and property owners a chance to explore settlement negotiations, Seeliger stated in his ruling. Ultimately the parties were unable to resolve the case.

On Dec. 13, 2017, the city amended its condemnation petition and filed a “Declaration of Taking” to seize the property. The city paid the $340,000 appraised value into the registry of the court, which was to then go to the property owners.

On Jan. 11, 2018, Torgrimson filed the motion to “dismiss, vacate and annul the condemnation.”

In 2009, some of the Briarwood Road property was considered as a site for a biomass energy production factory that would convert forestry materials like tree cuttings and mulch to steam energy.

The City Council approved a $35 million master plan for the Greenway that includes approximately three miles in Brookhaven. The 19 acres on Briarwood Road is included in phase one of the Greenway project, about a 1.25-mile section between North Druid Hills Road and Briarwood Road.

Dyana Bagby is a staff writer for Reporter Newspapers and Atlanta Intown.

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