Judge Dismisses Goldstein Lawsuit Against City

A Cobb County judge has dismissed a brought by a Marietta council member against the city over his plans to erect a five-story building on the north side of the historic square.

Cobb Superior Court Judge George Kreeger issued a six-page order today dismissing the lawsuit brought by Marietta City Councilman Philip Goldstein.

Marietta Mayor R. Steve Tumlin said he is pleased that Kreeger decided the city had acted properly when it f buildings on and near the square.

“It was a very through process, and I’m glad the judge found that the ordinance based on the process is legally sound,” Tumlin said

The ordinance that sparked the dispute, a change in the height limits of buildings on and within one block of the square, was passed in March after a months-long study by a review committee appointed by Tumlin and council members, he said.

F. Edwin Hallman, who represents Goldstein, said he had not seen a copy of the order. His office acknowledged receipt of a copy of the order that was faxed to his office by Patch, but Hallman had not returned subsequent calls seeking comment by the time this article was posted.

Goldstein’s lawsuit, Marietta Properties LLC vs. City of Marietta, filed on April 27, named Tumlin, other members of the City Council and the city as defendants. 

In the lawsuit, Goldstein argued that a 2008 certificate approving his plan to build a five-story building at 77 North Park Square that would stand between 66 and 69 feet high should take precedence over the council vote on March 9 that lowered the building height limit on Marietta Square from 85 feet to 54 feet.

The two-story building that had occupied the site in November. Known as the Cuthbertson Building, the structure was built in 1917 as the Farmers & Merchant Bank.

Goldstein wanted his proposed construction project grandfathered in under the prior ordinance because of the certificate he received in 2008 from the city's Historic Board of Review.

The city argued that the certificate, that expires in September, was meaningless because Goldstein did not meet another requirement, that he had obtained or had at least filed for a building permit from the city before the March 9 height reduction.

Kreeger agreed with the city, denying Goldstein’s request that the certificate remain in effect until the lawsuit is resolved, stating “it appears Plaintiff would be unlikely to prevail on the merits” of Goldstein’s argument that the Historic Board’s certificate is the equivalent of a building permit.

Tumlin said the city would not take any further action on the matter.

“The ball is in Marietta Properties court,” Tumlin said. “Now we just get up in the morning and go on about the business of governing.”