MARIETTA - Councilman Philip Goldstein on Wednesday asked Cobb Superior Court for an injunction that would force the city to allow him to build a five-story building on the north side of Marietta Square.

In reaction, Mayor Steve Tumlin called for Goldstein to resign from his position on the council.

"I think as a businessman, Mr. Goldstein has a right to pursue this, but as a councilman, it's a detriment to the city, and I'm disappointed if he's going to sue us that he's going to stay a member of the City Council," Tumlin said. "He says, 'I have a right as a citizen.' Yes. But he needs to be a citizen. Your full allegiance when you are a City Council member needs to be to the city. That trickles down to your relationships with city employees, your relationships with council members and your relationships with constituents."

The plaintiff named in the complaint is Marietta Properties LLC, which Goldstein owns. His 3,915-square-foot property in question is at 77 North Park Square.

Defendants named in the complaint are Tumlin and all seven council members, including, curiously, Goldstein himself.

The complaint describes how Goldstein received a three-year Certificate of Approval on Sept. 15, 2008, for construction of a five-story building that is "66 one inch high with ability to vary the height plus or minus three feet." The suit maintains that Goldstein is ready to begin construction, but has not obtained a building permit because the City Council on March 9 approved an ordinance that limits the height of buildings surrounding Glover Park to 42 feet.

In fact, the new height limit allows for buildings surrounding Glover Park to rise another 12 feet in height on top of the 42 feet mentioned in the event the top floor is set back from the edge of the building to allow for a patio rooftop, like the Strand Theatre, although this point is not mentioned in the suit.

Goldstein, the complaint goes on to outline, is prepared to spend thousands of dollars on detailed construction plans for his proposed building, but believes approval of those plans would be "illegally" denied because his certificate doesn't expire until Sept. 15.

His complaint states that since the city is attempting to let his existing certificate expire, he asks the court for an injunction to stop the clock on the life of his certificate until the matter is settled in court. He also asks the court to not only declare his certificate valid, but also that he has the right to build the proposed building.

In addition, Goldstein requests the court to prevent the city from establishing further impediments to issuing a building permit for his building and asks to be awarded "further and other relief as the court deems just and proper."

The complaint states how Goldstein and his engineer, Wayne Proctor, met on April 15 with the city's public works director, Dan Conn, and building official Hal Cosper. During that meeting, Cosper told Goldstein that in order to apply for a building permit, Goldstein would be required to sign a document that makes him comply with the city's height ordinance.

Goldstein refused to sign. He asked Conn and Cosper for a copy of the statement, a copy of the audio recording that was made by Conn and Cosper, and Conn's notes.

When Conn and Cosper refused to provide the requested items during the meeting, Goldstein filed an Open Records Request and obtained them.

"Upon information and belief, no other applicant for a building permit in the City of Marietta has ever been required to sign such a statement, and no other applicant for a building permit in the city of Marietta has been asked to waive their vested rights," Goldstein's complaint states.

Tumlin said the above example illustrates why Goldstein is unfit to serve as a council member.

"It's one thing for a businessman or citizen, but for him to deal with staff, I'm disappointed he won't tender his resignation. Every staff person he talks to he puts in jeopardy," Tumlin said.

The complaint is signed by attorneys F. Edwin Hallman Jr., Richard Wingate and Zachary Wilson.

The suit explains why Goldstein's name is listed as a defendant along with other council members and Tumlin, by stating: "Plaintiff is owned by Philip M. Goldstein, who is a member of the City Council, and therefore, a defendant in his official capacity for actions taken by the City Council regarding the property. The actions of the defendant city outlined in this complaint have been taken without the involvement of Mr. Goldstein, who disclosed his conflict and removed himself from the council table and did not participate or vote in his official capacity regarding the issues relating to the property."

Councilman Johnny Sinclair said Wednesday afternoon he wasn't aware the lawsuit had been filed.

"That's really unfortunate," Sinclair said. "I had hoped that cooler heads would prevail because it's taxpayer money that Philip's lawsuit will cause to be spent, and this is certainly not a time when there's a bunch of money lying around to support a lawsuit from a city councilman."

Councilman Grif Chalfant suggested that Goldstein should take a leave of absence while he litigated against a city he was elected to represent.

"I think he needs more separation from the council if he's going to get into doing something like this," Chalfant said. "He needs to be further away from the council than just move out of his seat and go sit in the audience. At least take a leave of absence until it's settled."

The case will be heard at a yet to be determined date in the courtroom of Judge George Kreeger.

On April 6, Tumlin and the other two members of the city's Litigation Management Committee, Councilmen Van Pearlberg and Jim King, hired Dana Maine, a partner with the Atlanta firm of Freeman Mathis & Gary, to represent the city in any litigation that may come from Goldstein.

Tumlin said the complaint would be turned over to Maine and to city attorney Doug Haynie, and a date would be set for the committee to meet to determine a course of action.