A battle for land along Shoal Creek continues after some homeowners say they never got their day in court. The land is being used by the Cobb County-Marietta Water Authority and city of Canton as mitigation for work to the Hickory Log Creek Reservoir.
Linda Holmes-Rubin and her husband, Rick Light, have been in a dispute with the water authority since late last year, after they were served papers showing their land along Fincher Road had been taken in “fee simple” for conservation purposes. Since the Ledger-News first reported the legal back-and-forth in early December, a Cherokee County judge ruled in the water authority’s favor by declining to set aside a motion for a transfer of title back to the original land owners. Glenn and Carole Weber, like Holmes-Rubin and Light, are also in the same situation, fighting to get the rights back to the land they said they consider too valuable to sell for any price.
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Janet Pelletier | Ledger-News
The Holmes-Rubin/Light property includes a stretch of Shoal Creek running through it. The CCMWA and city need property with Shoal Creek frontage to satisfy their mitigation requirements.
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Attorney Don Evans, who represents those four land owners, said the authority used “underhanded tactics” to prevent their case from being heard. The owners have 60 days to respond to notices of condemnation and set up a hearing to argue their case before a judge.
But, Evans said the authority sat on the documents long enough before serving them to whittle down the clock to schedule a court date that both parties could attend.
“We have prepared and filed a motion for (the judge) to reconsider,” Evans said. “They can’t create a timing problem and then take advantage of it.”
Glenn Page, general manager of the water authority, said Cherokee Chief Superior Court Judge Frank C. Mills III made his decision, and that speaks for itself.
“The argument that they didn’t get their day in court or the timeline was not met, which is what they argued in court, Judge Mills didn’t see things that way and he ruled in our favor,” Page said. “Otherwise, he wouldn’t have let it go forward.”
At issue are nearly 5.8 of 15 total acres owned by Holmes-Rubin and Light, and 1.3 of 6 total acres owned by the Webers that the water authority now owns. Early on in the process, in 2009, the water authority offered to pay for conservation easements on their properties. When those discussions failed, the water authority’s next action was “fee simple.” Page said the change to fee simple was necessary after the water authority found out that Georgia law prevented them from using eminent domain to obtain a conservation easement, which is what the U.S. Army Corps of Engineers originally told them was needed. Taking the land through fee simple transfers all the rights to the land over to the water authority, with a fair market price paid to the original owners.
Those rights are what Holmes-Rubin and Carol Weber say concern them.
“There are no hydrants up and down the street,” Weber said. “Our house was built in the late 1800s, and, if we were to have a fire, legally (first responders) could not take water from our creek to put out the fire.”
When asked whether the homeowners had lost their water rights, Page said he wasn’t sure. As to concerns about privacy, Page said there are no plans to allow public access such as trails on the properties.
“Absolutely not. That is not the purpose,” he said. “From time to time, we will need to walk that property maybe once a year to ensure that there have not been any uses of the (creek) buffer.”
He added that any previous uses to the property in question could be grandfathered in by U.S. Fish and Wildlife as long as they are consistent with the mitigation requirements under the permit for the reservoir work.
In addition to the four land owners, included in the condemnations are other owners along the creek who have had their land taken by the water authority and city of Canton in the same fashion. Attorney Doug Flint, who is representing those owners, said his clients feel betrayed and are outraged.
“These government entities promised that they would never use eminent domain to acquire the properties and that they only wanted to put a conservation easement on the property—so that the property owners could continue to own and use their land,” Flint said. “Somewhere along the way, they got greedy.”
Asked what action they intend to take, Flint said, “we are continuing to fight for their rights.”
Holmes-Rubin said in addition to her concerns about land rights, she’s worried about what the legal battle will cost her monetarily.
“This expense is coming out of our retirements,” she said. “We don’t know what it’s going to cost or when it’s going to end. It has essentially been a nightmare.”
If his clients’ request to reconsider is turned down, Evans said they are prepared to take the case to the State Court of Appeals.
