Wednesday, September 23, 2009

Dawson News & Advertister - Judge requests more information in case against motorsports park, city

Judge requests more information in case against motorsports park, city

by A.J. Puckett

Dawson News & Advertiser

Defendants Jeremy Porter of Atlanta Motorsports Park (AMP), the City of Dawsonville, and EHK (Ernie Elliott) Investments appeared in court in Dawson County on Friday, Sept. 18, to seek a dismissal of the suit filed against them by Dr. West and Helen Hamryka.

The lawsuit was filed in May, just after the Dawsonville City Council approved the rezoning of the land for the motorsports park. The Hamrykas own a home and horse farm across from the 152-acre car park site on Duck Thurmond Road, off Highway 53 West.

The defendants were requesting the dismissal on the grounds that the individual defendants were not served with the lawsuit in a reasonable amount of time, more than 70 days from the time of filing to the time of serving. The defendants claimed that this gave them an unfair advantage and, if the suit were an appeal, it would have reached a statute of limitations.

The defendants also argued that no nuisance exists to cause the damages the Hamrykas are claiming, the plaintiffs are only claiming there will be one.

The plaintiffs' attorney, Richard Wingate, rebutted the statute of limitations because the suit was filed as a mandamus and a declaratory judgment, of which neither has a statute of limitations.

Wingate argued that while there currently is no nuisance, his clients should not be forced to wait until the nuisance is created to prevent it.

Superior Court Judge Kathlene F. Gosselin did not make a decision on the defendants’ requests for dismissal. Instead, the two sides are to prepare further briefs to be submitted concurrently on Friday, Oct. 2.

Gosselin said that she had considered dropping the nuisance portion of the suit but was interested in seeing case law that was more relevant from the plaintiffs.

“We are happy with how today went and we’re expecting a long court case to come,” West Hamryka said Friday after the hearing.

As part of their case to stop the construction of AMP, the Hamrykas have filed affidavits from clients claiming they would take their business elsewhere if the park is constructed.

“I pray that the law and the process prevail, because we have followed the law
and the process to the letter,” Porter said on Monday.

It also was revealed during the hearing that AMP finalized the purchase of the land from EHK Investments on Sept. 17.