Habersham County is pushing back against property owners in the Orchard who filed a lawsuit against the county earlier this month. The Orchard Property Owners Association is trying to stop the construction of a 911 tower in the gated community.
Atlanta attorney William H. Gourley, III, filed the lawsuit and a motion for a restraining order on July 3. The plaintiffs claim the proposed tower violates Orchard covenants and a county ordinance and will pose a health hazard and harm property values.
In response, the county, on Thursday, filed a motion to transfer for improper venue. The county wants the case moved out of Fulton County to Habersham, claiming the plaintiffs are “forum shopping” – a practice by which plaintiffs choose a court or jurisdiction with rules or laws that are more favorable to their case.
“This case belongs in the Superior Court of Habersham County,” the motion filed by Habersham County Attorney Donnie Hunt states.
Both sides stake their claims
The plaintiffs filed the lawsuit and a motion for a temporary restraining order in Fulton County Superior Court on July 3. They filed in Fulton under a state law that waives sovereign immunity in cases involving contract disputes with governmental agencies. The county contends no such waiver condition exists.
“This is a covenant enforcement action, not a breach of contract action,” the motion for change of venue states.
The county also challenges the Orchard’s claims that it must abide by the subdivision’s covenants.
“Habersham County denies and disputes that the covenants restrict the County’s ability to use its property for public purposes.”
In addition to a change of venue, the county is seeking attorney’s fees from the plaintiffs, stating that they “intentionally filed this action in Fulton County in order to forum shop this litigation.”
Richard Rumble is one of the property owners involved in the litigation. In a letter to the editor Now Habersham published in April, Rumble laid out their position.
“In an ideal world, the residents would like the tower to be placed outside of their residential neighborhood and outside of their sightlines. If the county refuses to relocate the tower, Orchard residents want there to be no flashing lights, a contract prohibiting leasing and the addition of cell phone carriers [to the tower], designated hours for construction and maintenance (including ongoing upkeep of the diesel generator), and just compensation for diminished property values and health implications.”
Fulton County has not yet scheduled any hearings in this case.
