Wednesday, January 16, 2002
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Wednesday, January 16, 2002 |
| Tyrone wins,
county loses in Fairburn sewer lawsuit
By DAVE HAMRICK
It's not known yet whether Fayette County will appeal a Fulton County judge's decision that Tyrone and Fairburn may continue with their sewerage agreement. Once Judge Constance Russell's order in the case is formally filed, county commissioners and county attorneys will put their heads together and decide whether to take the matter any further, assistant County Attorney Dennis Davenport said this week. But one Tyrone town councilman can't believe the case has been carried this far. "Our position has been vindicated," said Councilman Paul Letourneau, "like the county knew it would be before they filed this frivolous action. I hope they're done costing the taxpayers money." The case has cost Tyrone "well over $6,000" in legal fees, Letourneau said. Both Tyrone and Fairburn officials have signaled their intentions of suing the county for their legal fees once the case is finished. Judge Russell late Friday afternoon ruled against the county's request for an injunction to halt the two cities' agreement. Under the agreement, Tyrone will buy $250,000 gallons a day of sewerage capacity from Fairburn and use it to serve John Wieland Homes' Southampton subdivision, under construction in the Fayette town. Fayette has argued that, because the connecting sewer line runs through a portion of unincorporated Fayette, the county must give its permission before such an agreement can take place. County commissioners have made it clear they would not give such permission, because they fear the presence of the sewer line will spark high-density development in the area. "The issue turns on one word," said Russell. "In order for Fayette County to prevail, it must be affected. ... Fayette County is not affected by the creation of this sewer line." The county's fears about high-density development are ungrounded, she said. "Tyrone cannot change the zoning in the unincorporated portion of Fayette County," she said. Only the county could do that, she added. Russell earlier denied a temporary injunction, and offered lawyers on both sides a chance to argue the case in a final showdown Jan. 8. They did so, and Russell then told the lawyers to return to court Friday for her final answer. In his arguments, assistant Fayette County Attorney Dennis Davenport said Wieland could 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. He also argued 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. But Russell agreed with lawyers for the defendants, who argued 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. "This is a victory for Tyrone and Fairburn," said Tyrone Councilman Ronnie Cannon following the ruling, "but it's also a victory for the people affected by Line Creek and the damage it would suffer" if the Southampton subdivision were forced to use a private sewer system. "We're just pleased that we can now get down to the engineering and construction part of it," said Fairburn City Manager Tony Cox. He said the line from Tyrone is ready to hook up, and construction of the treatment plant is "at least on schedule if not ahead."
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