From Forsyth County News

A civil lawsuit has been filed in Superior Court in an effort to stop the city of Cumming from condemning Deborah Fox’s property in order to expand the city’s sewer service.

The property, approximately six acres, is located on Samples Road across from the Lanier Golf Course. In a letter dated June 7, the city notified Fox of plans to survey her property for the design of a gravity sewer, pump station and force main.

Fox contends the city's action is to benefit a private developer planning a mixed use residential project on the golf course property.

According to Georgia code 22-1-11, the court has the authority to determine whether the exercise of eminent domain is for public use. State law prohibits the exercise of eminent domain for private use. Fox’s attorney, Robert McFarland, Sr., said his client's lawsuit is an attempt to stop the city before it proceeds with condemnation.

“Before this code section came about, we just had to wait until they filed their condemnation and then we could object after a special magistrate hearing, but this code section allows us to object, if you will, beforehand,” he said.

The complaint was filed on June 27, the day the city intended to conduct the survey. It includes a request for a temporary restraining order to stop the survey. As of Friday, the survey still had not been conducted, according to information from the city utilities department.

McFarland said he is working with city attorney Dana Miles on the survey issue to prevent a hearing. “The major issue of course is the condemnation, the taking, and I’m not very certain at all that we’re going to work out anything on that because obviously we have a different position from them,” McFarland said.

The lawsuit names the city of Cumming as well as the development company Wellstone LLC as defendants, and contends that the city’s purpose is to take Fox’s residence to assist Wellstone with a proposed development for the area.

According to the development description submitted in August 2006 to the county planning department, the project includes plans for approximately 370 townhomes and 103 single-family detached residences as well as a continuing care retirement community which will consist of “approximately 300 multifamily rental units as well as service facilities and amenities for the residents of the entire development.”

The description also states that the city’s sewage treatment plant will serve the site and that “all necessary infrastructure for the Wellstone project is in place or under construction and will be fully operable by the time required to serve the needs of the development.”

The lawsuit against the city states that “after reviewing the plans for the city and Wellstone, the Plaintiff (Fox) is of the opinion that the ‘Mashburn Project’ is really the ‘Wellstone Project’.”

Attempts to reach Miles for comment before press time were unsuccessful. However, in a letter dated June 20 to McFarland, Miles wrote that the city is considering using Fox’s property to provide sewer to Mashburn Elementary School, not the proposed residential development by Wellstone planned for the 170-acre Lanier Golf Course. The letter also states that there is nothing in the notice sent to Fox about the survey indicating that the city plans to assist a developer.

"All we're asking for is that the court make a decision on whether (the city has) a right to take (Fox's property) or not," McFarland said.

E-mail Julie Arrington at juliearrington@forsythnews.com.