Goldstein’s Marietta Properties LLC sued the city in April 2011, claiming he should be able to build a five-story building at 77 North Park Square between the Strand Theatre and Shillings Restaurant.
Goldstein lost at the Cobb Superior Court level, and lost again when he appealed to the Georgia Court of Appeals. He lost a third time appealing to the Georgia Supreme Court.
The city asked for attorney’s fees, which Cobb Superior Court Senior Judge Kreeger granted Friday.
Kreeger wrote that Goldstein brought the lawsuit “with full knowledge that its claim was not ripe, and in doing so, brought a claim that completely lacked any justiciable issue of fact or law, such that there could have been no reasonable belief that the claims would be accepted by a court.”
City attorney Doug Haynie said the city “is pleased with the order and hopes that Mr. Goldstein will honor the order and pay the funds to the city of Marietta.”
Haynie said it’s unusual for a judge to order a party to pay attorney’s fees. The only other time it’s happened with the city is in the case of Jaraysi and his failed wedding hall.
“Judges are just reluctant to award attorney’s fees,” Haynie said. “They want to have their court system open and available to people. They don’t want to discourage suits. They want to encourage access to the courts, but there are some times when a case is baseless that they will award fees. And when they find (that, I think the message is don’t file anymore baseless lawsuits.”)
There are some fees at the appellate level that Georgia law does not allow a party to recover. Haynie estimates the city spent $25,000 to $50,000 on the appeal costs. But the ones that were recoverable were granted, he said.
Goldstein to appeal
Goldstein referred comments to his Marietta attorney, Richard Wingate. Wingate said he has 30 days to appeal the decision to the Georgia Court of Appeals.
“We believe the court’s ruling is in error and we are going to file a petition for appeal,” Wingate said.
Mayor Steve Tumlin acknowledged Goldstein could appeal, “but I’m delighted with the judge’s ruling. I think it’s fair.”
Goldstein bought the property in question in 2001 for about $575,000, which at the time contained a 1917-era, two-story brick and wood building known as the Cuthbertson building, because the late Paul Cuthbertson for years had his optometry clinic there. Every couple of years thereafter, Goldstein obtained a “certificate of approval” from the city’s Historic Board of Review granting permission to demolish the structure and build a new building in its place. Sensing a lack of support for a renewed certificate of approval, Goldstein razed the Cuthbertson building in 2010, leaving in its wake a crater off Glover Park. But while he held a certificate of approval, Goldstein never applied for a building permit with the city, and it was this failure to apply for such a permit that hurt him in the case.
Also in 2010, Mayor Steve Tumlin formed a citizens committee, chaired by Becky Paden, charged with giving a recommendation on the proper height of buildings surrounding the Square. The committee’s recommendation led to the council lowering its height ordinance from 85 to 42 feet on the grounds that a building any higher than that would jeopardize the historic and aesthetic nature of the Square. The new ordinance prompted Goldstein to sue.
The 77 North Park Square property has remained a fenced-off hole since the 2010 demolition.
“I think it was worth the battle,” Tumlin said. “We are a historic, tourist city. The charm, the ambiance is mandated by the height ordinance just in the Square area.”
Tumlin cited all the film companies that like to film scenes on the Square.
“They don’t go to the Galleria,” Tumlin said. “Our Square is obviously the model for what a producer sees is important. We have churches that are 180 years old downtown. We have the rail road tracks that probably made our city. And you reserve this area for more of the history part. You got 25 and a half more square miles that we do not put the height ordinance on.”