Friday, November 30, 2001

Sewer fight continues as home buyers wait


While prospective home buyers in a Tyrone subdivision are packing their belongings and preparing to move in, lawyers and a Fulton County judge are still trying to determine whether they'll be able to use the bathrooms.

Lawyers are expected to put their heads together today and come up with a strategy to bring the court case to a conclusion before the first home buyers' closing date of Jan 15.

If Fayette County wins its lawsuit against the town of Tyrone and the city of Fairburn, the buyers' plans will be brought to a screeching halt, according to developers.

The county is asking Fulton Judge Constance Russell to nullify an agreement in which Tyrone will buy sewer capacity from Fairburn and sell it to John Wieland Homes for the Southhampton subdivision.

"We would have to stop building homes and marketing homes [if the sewer agreement is stopped]," testified Edward Woodland, Wieland's vice president for the south Atlanta region. Woodland was called as a witness during a hearing Wednesday on Fayette County's motion for a temporary injunction, to halt plans for the sewer deal pending a final hearing in the matter.

Russell denied that injunction, but offered lawyers on both sides a chance to argue the case in a final showdown Jan. 8, so the matter would be settled before residents start moving in. The lawyers are trying to decide whether that's necessary, or whether they can make their final arguments on paper.

Woodland said the company has spent $9 million over the last three years in planning the subdivision and beginning construction. Plans are for 320 homes on as many acres, averaging over $300,000 in price, he said. But with plans for open space and amenities, the homes will actually be on lots as small as a third of an acre, so septic tanks are not an option, he added.

Thirty-seven homes are under construction, with 16 of them under contract, Woodland said. Three homes are scheduled to close in January, he added.

In his arguments, assistant Fayette County Attorney Dennis Davenport said another remedy exists the company can build a small sewer plant just for the subdivision. Lawyers for Tyrone and Wieland argued that the subdivision is in a sensitive area environmentally, so a spray application sewer plant there is not a good option.

Originally, Wieland had planned to build a sewer plant for the subdivision, a plan that caused the Tyrone Town Council to deny Wieland's request for rezoning. But a court overruled that decision.

Tyrone officials then worked out the agreement to purchase sewer capacity from Fairburn as a way to avoid having Wieland build the plant.

The key question, as articulated by Judge Russell during Wednesday's hearing, is: "Who owns this sewer?"

Fayette maintains that, because Fairburn would be treating the sewage, the city would be providing the sewer service. Since the city's charter doesn't allow it to provide sewer service outside its borders, that would be illegal, Davenport argued.

Lawyers for the defendants argue that, because Tyrone will own the collection system for the sewage as well as the line connecting it to Fairburn's system, Tyrone will be the provider of sewerage. And Tyrone's charter does allow it to provide sewer service outside its borders.

In this instance, though, the town has no plans to do so, the lawyers said. The 250,000 gallons a day of capacity the town will buy from Fairburn is totally absorbed by the subdivision and an attached commercial development being built by developer Phillip Seay Sr., they pointed out.

County leaders are fighting the agreement, they have said repeatedly, because they fear the existence of a sewer line running through unincorporated Fayette County will encourage future developers to tap into the sewerage and build high-density neighborhoods. The county's long-range plans for that area call for minimum building lots of one acre.

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