Councilman Goldstein files suit against city
by Jon Gillooly
jgillooly@mdjonline.com
April 27, 2011 12:00 AM | 3426 views | 14 14 comments | 14 14 recommendations | email to a friend | print
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.
Comments
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Truth Serum
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April 28, 2011
This guy has a right to not be disinfranchised and protect his legal rights irrespective of his standing or position in the council. Having a council position doesn't mean that he should sacrifice a dime of his own money OR his hide in return for unfair treatment from the Council or any other entitiy for that matter. He should NEVER resign!

The Council needs to learn to keep their word instead of crying about getting sued! And looky.. No Obama left wing conspiracy/Birther or "How's the change workin for ya" excuses here neither! It seems that dysfunction, inability to get along and poor leadership (if that's what you believe) are EQUAL OPPORTUNITY EMPLOYERS for BOTH parties! LMBO!
onekidmom
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April 28, 2011
What a waste. Is he related to the guy who owns/owned the eyesore at Franklin & the South Loop? They're both arrogant idiots wanting what they want and not what is good for the surrounding area.
mrtawtchr
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April 28, 2011
The first comment hit the nail on the head. If you like a cat fight, enjoy it and hope it doesn't cost us too much.
common sense
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April 28, 2011
Its Nice to know that Johnny Sinclair has no idea whats going on. Just like him voting for Council Agenda items when he hasn't read the briefs about them or asked basic questions. So glad the Mayor made him 2nd in command for Council Meetings as Mayor Pro-Tem.
Angus El Perro
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April 28, 2011
Goldstein is the definition of conflict of interest. He is only on the council to line his pockets, nothing more.

MDJ, can we get a list of businesses and properties he owns so we can boycott him?
That Guy
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April 28, 2011
Philip who do you work for ? Yourself or those you represent? If you want to be a downtown landlord then do that if you want to represent the people of your city then do that. Either way you need to grow up and stop acting like a spoiled brat.
anonymous
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April 28, 2011
Call his Bluff and let him have it! LMAO
Distaste for OMs
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April 28, 2011
This city has messed with the Goldsteins for a long, long, time.

I hope Phillip wins. At least he wants to actually do some developing.

The Mayor wants a choo-choo train. A multi-million dollar choo-choo train.

The height committee that was appointed had actually decided that buildings could be as high as what Goldstein is proposing. As soon as the Mayor saw his plan to suppress Goldstein falling apart, he squawked so loudly that the committee chair called a vote postponement and a revote got the Mayor what he wanted.

He's got a case
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April 28, 2011
Goldstein has a good case and will probably win the lawsuit. The problem is there is no market for his proposed building and there likely never will be. So if he builds it he knows he will lose millions and he isn't that dumb. So whether the City grants him his permit or not, this is all a moot point because a five-story building is never, ever going to be built on that site by Goldstein or anyone else. Grandfather his permit, call his bluff, save taxpayers a ton of money and drop it. But everyone knows that this lawsuit has absolutely nothing to do with a real estate project. It is just a proxy excuse for the councilman and the mayor to carry on their hissyfit feud at taxpayer expense. So let the theater begin. You might as well enjoy the show because you're paying for it.
FROM TEXAS
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April 28, 2011
The next city council meeting the tax payers need to bring a pacifier and baby rattle to keep Little Phillp Cry Baby Goldstein quiet. You need to redistrict and fix that headache once and for all.
Carey Cox
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April 28, 2011
Who exactly is the flim-flam artist here? Regardless of ones opinion of this building, how is Council able to reverse a legal certificate just because they don't like a legal vote by a board they created? Remember the Historic Board of Review that approved this was the same HBR that was revamped by Council because it felt Philip had control of the previous one.

Look at it for what it is. We have a Council playing a shell game with legally issued certificates. The Board of your creation voted for this project and you are the ones playing with and changing your own rules mid-stream. Drop the self-righteous posturing. Hypocritical behavior at best.
Resign Philip Resign
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April 28, 2011
Philip Goldstein had plenty of time to get a building permit and start construction BEFORE the height change. He has always held Marietta City hostage for whatever he wants. This latest stunt is nothing new.

Goldstein needs to resign now. He can no longer serve impartially as councilman to a city ward that elected him if he is also suing the same city.

By filing his lawsuit, Goldstein in essence says that his right as a citizen is more important than his right as a councilman. He needs to leave, effective immediately.
givemeliberty
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April 28, 2011
The self-inflated council brought this upon themselves and the taxpayers of Marietta. Tumlin's obvious dislike for Philip has been evident all along and the council finally got a mayor itching for a fight. They have attempted to diminish the right Philip has to develop his property. I hope Philip wins and wins enough to substantially pay for the construction of his building. Maybe he could then name it the King Thunder Sinclair Pearlberg Lewis Memorial Building.
Has Johnny Sinclair
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April 27, 2011
ever done or said anything that actually adds to the council?
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