Goldstein’s Marietta Properties LLC sued the city in April 2011, a case Cobb Superior Court Judge George Kreeger threw out in June 2011. An appeal to the Georgia Court of Appeals proved unsuccessful when that court sided with Kreeger on Aug. 31. Goldstein’s request for the Court of Appeals to reconsider its decision was denied Dec. 5.
“The Superior Court and the Court of Appeals ruled incorrectly in this case as a matter of law,” said Richard Wingate of Marietta, Goldstein’s attorney. “Marietta Properties has asked the Supreme Court of the State of Georgia to hear this case, because the current decision of the Court of Appeals is a detriment to every landowner in Georgia.”
Goldstein’s attorneys argued in his lawsuit against the city that a new downtown height ordinance should not prevent him from building the five-story building, about 66 feet tall, at 77 North Park Square because he had a certificate of approval from the city’s Historic Board of Review when the rule was adopted.
Kreeger ruled that the proposed building was not grandfathered in and that Goldstein must obey the ordinance, which limits new buildings fronting Glover Park to a height of 42 feet. Goldstein did not apply for a building permit before the new ordinance took effect, reasoning that he didn’t want to spend thousands of dollars on building plans when it was uncertain whether the city would approve the proposal.
In the brief filed with the Supreme Court, Wingate points out that the city granted Goldstein a demolition permit to raze the 1917-era, two-story brick and wood building known as the Cuthbertson building located on the property in question. That demolition took place in fall 2010.
“A building permit was obtained to demolish the existing building, which was done at great expense based upon the certificate of approval for construction of the five-story building,” Wingate writes. “The demolition of the existing building is certainly a necessary component of substantial and ongoing construction of the building development.”
City attorney Doug Haynie said this is the same argument Goldstein’s attorneys used in the past.
“They’ve made the same argument to the Court of Appeals,” Haynie said. “Our response was a demolition permit has nothing to do with construction. Their belief is that when they went and got a demolition permit that that started construction. No department has looked at what kind of building is going to go on that site. You have to get rid of the old building before you can even start a new one.”
Haynie said the Supreme Court does not have to hear the case.
“If they do not, the case is over,” Haynie said. “If they do grant it, it goes through a whole new briefing schedule, oral argument, etc.”
The 77 North Park Square property has remained a fenced-off hole since the 2010 demolition. A sign on the fence advertises a ground lease for the property.