Monday, November 23, 2009

Smoke Signals (Big Canoe): AMP opponents win first round in legal battle

Judge denies motion to dismiss, allows AMP lawsuit to proceed

Hidden Still Farms is adjacent to the proposed Atlanta Motorsports Park.

By Barbara Schneider
bschneider@bigcanoenews.com

A judge’s motion provided the first significant victory for opponents to construction of Atlanta Motorsports Park (AMP) in a rural portion of western Dawson County.

Richard Wingate is the attorney for West Hamryka, the homeowner whose property Hidden Still Farms is adjacent to the proposed Atlanta Motorsports Park. On behalf of the Hamrykas, Wingate filed a lawsuit against the City of Dawsonville, its mayor and council, Atlanta Motorsports Park, LLC, Jeremy Porter (Forsyth resident and AMP developer), and EHK Investments, LLC.[Ernie Elliot]. The suit claims the defendants are responsible “for the unlawful interference of [the Hamrykas’] right to enjoy the possession of their property and for the disruption of their business.”

On Nov. 12, Judge Kathlene Gosselin issued an order completely denying all of the defendants' motions to dismiss (full text of the statement below).

Community protested

Earlier this year hundreds of residents throughout Dawson County, including many from Big Canoe, attended months of City of Dawsonville meetings to voice their opposition to the city’s approval of AMP.

On April 13, the Dawsonville City Council unanimously approved rezoning 152 acres along Duck Thurmond Road for the proposed Atlanta Motorsports Park on April 13. The vote reclassified a portion of 1,500 acres currently owned by the Elliot family along Duck Thurmond Road near Hwy 53 from residential 1 to CIR (restricted industrial district). (For the complete story see: “Dawsonville okays AMP rezoning,” Smoke Signals Online archives or Smoke Signals, May.)

Meeting with the media after the vote, West Hamryka, who owns a 70-acre horse farm directly across Duck Thurmond Road from the proposed motorsports park, vowed to continue the fight. “We are prepared to take this to the next legal step.”

The City, he said, basically threw out the land use plan approved last year. He vowed to sue the City of Dawsonville for improper spot zoning and said he was willing to continue the fight in the courts.

The Hamrykas are seeking an injunction to prevent construction of the motorsports park, as well as at least $3 million in damages, plus legal fees. Per the ruling, the case now enters the discovery phase for the next several months.

Attorney Wingate’s statement:

“The citizens of Dawson County were granted a major victory in their endeavor to prevent the Atlanta Motorsports Park from destroying the peace and tranquility of this rural community. Judge Kathlene Gosselin issued an Order on November 12 completely denying all of the Defendants' Motions to Dismiss. The Defendants include the City of Dawsonville, its Mayor and Council, Atlanta Motorsports Park, LLC, Jeremy Porter, and EHK Investments, LLC.

The Defendants had each filed Motions to dismiss the lawsuit filed by Dr. and Mrs. Hamryka, the adjacent landowners, and owners of Hidden Still Farms, Inc, a world class horse boarding and training operation.

In the Order, the Court held that the Plaintiffs' complaint was properly filed and served and that the Plaintiffs had properly stated a claim for injunctive relief from the nuisance that would be caused by the AMP development, if it is constructed. Defendants had previously characterized Plaintiffs' lawsuit as "frivolous." The November 12 Order clearly demonstrates that Plaintiffs' lawsuit has merit.”

Wednesday, November 18, 2009

Dawson County News: Judge allows motorsports lawsuit to move forward

See court ruling below this post.

Judge allows motorsports lawsuit to move forward

Motion to dismiss denied

Plaintiffs in a law suit filed to halt the construction of a motorsports park across from their property in western Dawson County scored a win earlier this week when the judge ruled they could move forward with the suit.

"The citizens of Dawson County were granted a major victory in their endeavor to prevent the Atlanta Motorsports Park from destroying the peace and tranquility of this rural community," Richard Wingate, attorney for West and Helen Hamryka, said in a statement released Tuesday.

The Hamrykas, who own a home and horse farm across from the 152-acre car park site, filed suit against developer Jeremy Porter, Atlanta Motorsports Park, the city of Dawsonville, Dawsonville City Council, and EHK (Ernie Elliott) Investments in May.

Billed as a country club for sports car enthusiasts, the Atlanta Motorsports Park plan calls for nearly three miles of high performance road course for two- and four-wheel vehicles, a members-only lounge, 10,000 square foot clubhouse, pool and hiking trails.

The suit claims the defendants are responsible “for the unlawful interference of [the Hamrykas’] right to enjoy the possession of their property and for the disruption of their business.”

The Hamrykas contend the city violated zoning procedure when approving Porter’s rezoning request in April.

They are seeking an injunction to prevent construction of the motorsports park, as well as at least $3 million in damages, plus legal fees.

The city of Dawsonville, EHK (Ernie Elliott) Investments and Jeremy Porter, founder of Atlanta Motorsports Park, each filed motions to dismiss the civil suit.

Attorneys for Porter say the plaintiff’s failure to serve "the defendants with any complaint during the 30-day limitation period for appeals on zoning decisions” should dismiss the counts.
The motions to dismiss also address the Hamrykas’ nuisance complaint, which Porter said would not be determined for months, if ever.

Attorneys for Elliott, who sold the property to Porter, said their client was not a proper party in the lawsuit since he would "have no involvement in or control over any construction or development."

The defendants motions were denied.

Superior Court Judge Kathlene Gosselin ruled the plaintiffs' complaint followed all proper filing procedures.

The order, Wingate said, "clearly demonstrates that (the) plaintiffs' lawsuit has merit."

Porter said he is not discouraged.

"We believe the lawsuit is still frivolous and abusive. We may not have won on the procedures, which is what this was about, but we still feel confident and still feel we'll have victory," he said.
Wendy Butler, Porter's attorney, said the joint-defense counsels are working together to strategize the next step.

Wingate said his clients were pleased with the ruling. He anticipates taking the case to trial next year.

Court Ruling Against AMP

Below is a link to the recent ruling against AMP. The discovery phase should be interesting. We'll continue to monitor this situation and provide colorful commentary and updates, as applicable.

Select "Regular Download" once you land on the sendspace Web site. On the next page, look for the Download Link (with read arrow next to it)... That's the file. No registration required.

http://www.sendspace.com/file/yxtyk1

Ruling in favor of Hamryka's - lawsuit may proceed

Statement issued by Hamryka's attorney...

"The citizens of Dawson County were granted a major victory in their endeavor to prevent the Atlanta Motorsports Park from destroying the peace and tranquility of this rural community. Judge Kathlene Gosselin issued an Order on November 12 completely denying all of the Defendants' Motions to Dismiss. The Defendants include the City of Dawsonville, its Mayor and Council, Atlanta Motorsports Park, LLC, Jeremy Porter, and EHK Investments, LLC. The Defendants had each filed Motions to dismiss the lawsuit filed by Dr. and Mrs. Hamryka, the adjacent landowners, and owners of Hidden Still Farms, Inc, a world class horse boarding and training operation. In the Order, the Court held that the Plaintiffs' complaint was properly filed and served and that the Plaintiffs had properly stated a claim for injunctive relief from the nuisance that would be caused by the AMP development, if it is constructed. Defendants had previously characterized Plaintiffs' lawsuit as "frivolous." The November 12th Order clearly demonstrates that Plaintiffs' lawsuit has merit. "