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Crystal Cove Shores sues Bridgepoint Community Networks

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Title Opinion to determine ownership and restrictions

Postby Nydia Tisdale » Sat Jul 23, 2011 6:27 pm

The Unified Development Code of Forsyth County
Chapter 8, Zoning and Application Procedures

U.D.C. 8-5.4 (F).
Page 8

Title Opinion. All applications for rezoning, conditional use permit, and sketch plat applications shall provide a title opinion issued by a duly admitted member of the State Bar of Georgia in good standing. In addition to confirming ownership of the subject property, the title opinion shall also identify and provide copies of any covenants, deed restrictions, and easements encumbering the property and shall further identify whether any of the identified covenants, deed restrictions, and/or easements prohibit the use being sought by the application. The title opinion shall be rendered no more than 120 days prior to the original Application for Preliminary Zoning Review.
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Title is subject to deeds, easements & restrictive covenants

Postby Nydia Tisdale » Sat Jul 23, 2011 6:30 pm

Boling Rice LLC
By Taylor Rice
September 1, 2011

This is to certify that we have examined the properly indexed records of title to the real property described on the Exhibit "A" attached hereto and made a part hereof by reference.

We have relied upon the accuracy and completeness of the records and the indices thereto in the office of the Clerk of the Superior Court in the County in which said real property is situated.

In reliance upon said information, it is our opinion that the title to said property is vested in: Bridgepoint Community Networks, Inc. SUBJECT TO THE FOLLOWING:

6. Title to that portion embraced within the bounds of roads, highways, easements and rights of way, particularly roads and easements which are created by adverse or prescriptive usage.

22. Subdivision restrictive covenants and matters revealed therein inclusive of any Homeowners association dues or like charges or easements reflected therein as may affect the subject property.

28. Restrictive Covenants recorded at Deed Book F, page 199, Forsyth County, Georgia records.

29. All matters shown on a plat recorded at, Plat Book 6, page 71 Forsyth County, Georgia records.

30. All matters shown on a plat recorded at Plat Book 6, page 265, Forsyth County, Georgia records.

32. General utility easements to Sawnee EMC recorded at Deed Book 84, page 383; Deed Book 85, page 313; and Deed Book 94, page 236, Forsyth County, Georgia records.

34. Uses of the property described in Exhibit "A" are limited as provided in the covenants, deeds, and easements of record and attached hereto as Exhibit "B" which are incorporated herein by this reference.

Click here for full report:
http://estatus.forsythco.com/files/PLAN ... 100011.PDF
Pages 14-23
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Crystalcove Shores Restrictions ~ Deed Book F, Page 199

Postby Nydia Tisdale » Sat Jul 23, 2011 11:26 pm

Agreement for Deed

SUBDIVISION RESTRICTIONS

TRANS-SOUTHLAND DEVELOPMENT, INC., the legal and equitable owner of Crystalcove Shores as shown by the plat thereof duly recorded in the Plat Record of Forsyth County, Georgia, does hereby acknowledge, declare and adopt the following restrictions:

1. No building shall be erected or maintained on any lot in said subdivision other than a private residence and a private garage for the sole use of the owner or occupant.

2. No existing building or structure of any kind and no part of an existing building or structure shall be moved on to, placed on, or permitted to remain on any lot without written permission of the developer.

3. Constructed dwellings shall have a minimum square footage exclusive of open porches and garage of 500 square feet and any such dwelling exceeding one story in height shall have not less than 1,000 square feet of area. Mobile homes shall be of a minimum size of 10 feet by 40 feet.

4. No building or structure of any kind shall be erected, placed, or altered on any lot until the construction plans and specifications and plans showing the location of the structure have been approved by the Architectural Control Committee as to condition, appearance, and harmony of external design and as to location with respect to topography and finished grade elevation. All outside construction to be of new material.

5. No residential structure shall be located nearer to the front line than 45 feet or nearer to the side lot line than 4-feet or nearer to the rear line (lake front lots excluded) than 25 feet.
The restrictions contained in this paragraph may, as to any particular lot, in exceptional circumstances, be altered but only with written approval prior to commencing construction of the developer.

6. No noxious or offensive trade or activity shall be carried on upon any lot nor shall anything be done thereon that may detract or may become an annoyance or nuisance to the neighborhood.

7. No outbuilding or basement erected on any lot shall at any time be used as a dwelling, temporary or permanent, nor shall any shack be placed on any lot, nor shall any residence or a temporary character be permitted.

8. Easements are reserved along all roadways consisting of a strip 25 feet wide beginning at a point 10 feet from the center line all such roadways. The purpose of such easement is for the construction and perpetual maintenance of conduits, poles, wires, fixtures, telephones, water mains, sanitary and storm sewers, road drains and other public and quasi-public utilities, and the right to trim and cut trees and shrubbery to the extent necessary to prevent interference or threat of interference to said utilities with the right of ingress from such premises for employees of said utilities for such purposes.

9. No sign of any kind shall be displayed to the public view on any lot except one professional sign of not more than one square foot, one sign of not more than five square feet advertising the property for sale or rent, or signs used by a builder to advertise the property during construction and sales periods.

10. No outside toilet or privy shall be erected or maintained in the subdivision. All sanitary plumbing shall conform with the minimum requirements of the Health Department of Forsyth County and the State of Georgia.

11. If the owner of any lot in said subdivision or any other person shall violate any of the covenants herein, it shall be lawful for any other person or persons owning any real property situated in said subdivision to prosecute any proceedings at law of inequity against the person or persons, violating or attempting to violate any such covenant and either to prevent him or them from doing so or to recover damages or other dues for such violation.

12. Invalidation of any one or more of these covenants and restrictions by judgment of any court shall in no wise and no way affect any of the other covenants, restrictions and provisions herein contained and shall remain in full force and effect.

13. Construction of any community building, stables, swimming pool, tennis courts, etc. must be approved prior to construction by the developer. A request must be submitted to the developer accompanied by a notarized list of those property owners participating in the community project, and must represent a substantial number of property owners. Any such project must be for the betterment of the property in general.

Filed April 16, 1969, Deed Book F Page 199
http://estatus.forsythco.com/files/PLAN ... 100011.PDF
Page 23
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Crystal Cove Shores ~ Deed Book 6 Page 71

Postby Nydia Tisdale » Sun Jul 24, 2011 7:40 am

CRYSTALCOVE SHORES
FORSYTH COUNTY, GEORGIA
LOTS -1- THRU -206-
APRIL 14, 1969

NOTE:

MINIMUM LOT SIZE - - - 12,500 SQ. FT (TO EDGE OF PROPOSED 20' ASPHALT PAVEMENT).

SOIL PERCOLATION TEST AVERAGE 29.3 MINS. PER IN.
(t = TIME)

BROKEN LINES DENOTE 50 FOOT R/W EASEMENT ON ALL ROADS. DISTANCES ARE SHOWN TO EDGE OF 20 FOOT ASPHALT PAVEMENT.

Deed Book 6 Page 71
Page 19
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Crystal Cove Shores ~ Deed Book 6 Page 265

Postby Nydia Tisdale » Sun Jul 24, 2011 10:00 am

CRYSTALCOVE SHORES
FORSYTH COUNTY, GEORGIA
LOTS 1 THRU 325 EXCLUDING LOTS 207 & 230
APRIL 14, 1969
APRIL 8, 1970 (REVISED)

NOTE:

MINIMUM LOT SIZE - - - 12,500 SQ. FT (TO EDGE OF PROPOSED 20' ASPHALT PAVEMENT).

SOIL PERCOLATION TEST AVERAGE 29.3 MINS. PER IN.
(t = TIME)

BROKEN LINES DENOTE 50 FOOT R/W EASEMENT ON ALL ROADS. DISTANCES ARE SHOWN TO EDGE OF 20 FOOT ASPHALT PAVEMENT.

Deed Book 6 Page 265
Page 18
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Covenants running with land

Postby Nydia Tisdale » Sun Jul 24, 2011 10:20 am

TITLE 44. PROPERTY
CHAPTER 5. ACQUISITION AND LOSS OF PROPERTY
ARTICLE 3. COVENANTS AND WARRANTIES

O.C.G.A. § 44-5-60. Covenants running with land; effect of zoning laws; covenants and scenic easements for use of public; renewal of certain covenants; costs

(a) The purchaser of lands obtains with the title, whether conveyed to him at public or private sale, all the rights which any former owner of the land under whom he claims may have had by virtue of any covenants of warranty of title, of quiet enjoyment, or of freedom from encumbrances contained in the conveyance from any former grantor unless the transmission of such covenants with the land is expressly prohibited in the covenant itself.

(b) Notwithstanding subsection (a) of this Code section, covenants restricting lands to certain uses shall not run for more than 20 years in municipalities which have adopted zoning laws nor in those areas in counties for which zoning laws have been adopted.

(c) The limitation provided in subsection (b) of this Code section shall not apply with respect to any covenant or scenic easement in favor of or for the benefit of the United States or any department, bureau, or agency thereof; this state or any political subdivision thereof; or any corporation, trust, or other organization holding land for the use of the public, but only with respect to such covenants and scenic easements running in favor of or for the benefit of the land so held for the use of the public. Such covenants and scenic easements shall run in perpetuity.

(d)(1) Notwithstanding the limitation provided in subsection (b) of this Code section, covenants restricting lands to certain uses affecting planned subdivisions containing no fewer than 15 individual plots shall automatically be renewed beyond the period provided for in subsection (b) of this Code section unless terminated as provided in this subsection. Each such renewal shall be for an additional 20 year period, and there shall be no limit on the number of times such covenants shall be renewed.

(2) To terminate a covenant as provided in paragraph (1) of this subsection, at least 51 percent of the persons owning plots affected by such covenant shall execute a document containing a legal description of the entire area affected by the covenant, a list of the names of all record owners of plots affected by the covenant, and a description of the covenant to be terminated, which may be incorporated by reference to another recorded document. By signing such document, each such person shall verify that he or she is a record owner of property affected by the covenant. Such document shall be recorded in the office of the clerk of the superior court of the county where the land is located no sooner than but within two years prior to the expiration of the initial 20 year period or any subsequent 20 year period. The clerk of the superior court shall index the document under the name of each record owner appearing in the document.

(3) No covenant that prohibits the use or ownership of property within the subdivision may discriminate based on race, creed, color, age, sex, or national origin.

(4) Notwithstanding any other provision of this Code section or of any covenants with respect to the land, no change in the covenants which imposes a greater restriction on the use or development of the land will be enforced unless agreed to in writing by the owner of the affected property at the time such change is made.

(e) To the extent provided in the covenants, the obligation for the payment of assessments and fees arising from covenants shall include the costs of collection, including reasonable attorney's fees actually incurred.

http://www.lexisnexis.com/hottopics/gacode/Default.asp
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Conditional Use Permit Exhibit ~ site plan version 1

Postby Nydia Tisdale » Sun Jul 24, 2011 10:25 am

Conditional Use Permit Exhibit for:
Crystal Cove Community Center
Land Lot 1209 14th District
Forsyth County

SITE DATA

EXISTING ZONING LR
COMMUNITY CENTER SPACE SQUARE FOOTAGE 5,000
PARKING SPACES 11

No Date
No Owner
No Septic Lines

Submitted by District 4 Commissioner David Richard
http://estatus.forsythco.com/files/PLAN ... 080016.PDF
Page 238
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Bridgepoint Community Networks, Inc. ~ site plan version 2

Postby Nydia Tisdale » Sun Jul 24, 2011 12:51 pm

Site Plan of Lot 77, Crystal Cove Shores Subd. for:
BRIDGEPOINT COMMUNITY NETWORKS, INC.
Forsyth County, Georgia
02-02-2009

NOTES:

1.) Field Data: Closure Precision — 1’/68/050’. Angular Error = 06”/STA.

2.) Measurements were taken with a Nikkon DTM on 01-29-2009 and were balanced using the Compass rule.

3.) Bearings are based on a magnetic bearing taken on 01-29-2009.

4.) Plat Precision: 1’/42,151’.

5.) The public records referenced hereon reflect only those records necessary to establish the boundaries heron, and reference to the same does not and is not intended to constitute a title search or title opinion.

6.) No Portion of this property is located in a Special Flood Area as inidcated [sic] on F.I.R.M. No. 13117C0100E, effective date 09–19–2007.

7.) The limits of the subject property that lie along Thunder Trail and Crystal Cove Trail run along the edge of the 20’ Paving per Plat Book 6, Pages 71 & 265. Said plats indicate that Thunder Trail and Crystal Cove Trail are 50’ Right of Way Easements. Legal advice is recommended.

REFERENCES:
1.) Tax Deed to Bridgeport [sic] Community Networks, Inc., recorded in Deed Book 5248, Page 26-37 and a plat of Crystal Cove Shores Subdivision recorded in Plat Book 6, Page 71.

Site Plan 02-02-2009
Received 06-05-2009
http://estatus.forsythco.com/files/PLAN ... 090006.PDF
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Bridgepoint Community Networks, Inc. ~ site plan version 3

Postby Nydia Tisdale » Sun Jul 24, 2011 3:30 pm

Site Plan of Lot 77, Crystal Cove Shores Subd. for:
BRIDGEPOINT COMMUNITY NETWORKS, INC.
Forsyth County, Georgia
12-14-2009
03-18-2011 Revised

ZONING NOTES:

1. THE BOUNDARY LINES SHOWN HEREON ARE BASED ON A BOUNDARY SURVEY BY MCWHORTER & ANDERSON FOR BRIDGEPORT [sic] COMMUNITY NETWORKS, INC., DATE 02-02-2009

2. NO PORTION OF THIS PROPERTY ARE [sic] LOCATED IN A SPECIAL FLOOD AREA AS INDICATED ON F.I.R.M. NO. 13117C0100E, EFFECTIVE DATE 09-19-2007.

3. OWNER / APPLICANT:
BRIDGEPORT [sic] COMMUNITY NETWORKS, INC.
1285 MONTCLAIR [sic] DRIVE, CUMMING, GEORGIA 30041
[11 HUNTERS RIDGE DRIVE, ADAIRSVILLE, GEORGIA 30103]
CONTACT: BILL LEVIN
770-778-4017

4. CURRENT ZONING – LR [LAKE RESIDENTIAL]

5. THE LIMITS OF THE SUBJECT PROPERTY THAT LIE ALONG THUNDER TRAIL AND CRYSTAL COVE TRAIL RUN ALONG THE EDGE OF THE 20’ PAVING PER PLAT BOOK 6, PAGES 71 & 65 [sic]. SAID PLAT INDICATES THAT THUNDER TRAIL AND CRYSTAL COVE TRAIL ARE 50’ RIGHT OF WAY EASEMENTS. THE OWNER WILL DEDICATE TO FORSYTH COUNTY ALL PROPERTY WITHIN 25-FEET OF THE CENTERLINE OF ALL ROADS.

6. TOTAL PARKING SPACES PROVIDED – 6 SPACES

7. NO STORM DRAINS ARE PROPOSED AT THIS TIME. ALL WATER ON THE SITE SITE [sic] IS EXPECTED TO SHEET FLOW INTO THE EXISTING ROADWAY DITCHES. THE SITE WILL HAVE LESS THAT [sic] 5000 sq. ft. OF IMPERVIOUS SURFACE, THUS DETENTION WILL NOT BE REQUIRED PER THE COUNTY STORMWATER MANAGEMENT MANUAL.

8. TAX PARCEL – 313-009

9. THE SITE IS GRASSED AND OPEN. THERE ARE ONLY A FEW SMALL TREES SCATTERED THROUGHOUT THE SITE.

10. THE TOPOGRAPHY SHOWN HEREON IS BASED ON A FIELD TOPO BY MCWHORTER AND ANDERSON AND WAS CALCULATED FROM AN ASSUMED DATUM WHICH APPROXIMATES M.S.L. [Mean Sea Level]

Site Plan 12-14-2009
Received 09-03-2010
http://estatus.forsythco.com/files/PLAN ... 100011.PDF
Site Plan 03-18-2011 Revised
http://estatus.forsythco.com/files/PLAN ... 1_REV1.PDF
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Open Records Request

Postby Nydia Tisdale » Sun Jul 24, 2011 3:56 pm

From: Nydia Tisdale
To: pllivesay@forsythco.com; pwbowman@forsythco.com; jmkelleher@forsythco.com; jmmurphy@forsythco.com; jsmoses@forsythco.com; twbrown@forsythco.com
CC: kjarrard@jarrard-davis.com
Subject: ORR for Bridgepoint Community Networks, Inc. CP 100011
Date: Sun, 24 Jul 2011 1:03 AM

Forsyth County Planning Commission
Planning Director Tom Brown
110 East Main Street, Suite 100
Cumming, Georgia 30040

RE: Open Records Request regarding Bridgepoint Community Networks, Inc. CP100011

Dear Planning Commissioners and Planning Director:

Pursuant to the Georgia Open Records Law (O.C.G.A. § 50-18-70 et seq.), you are hereby requested to provide all e-mails relating to Bridgepoint Community Networks, Inc. conditional use permit application CP100011 dated from Friday, July 15, 2011 to the present date from either your county e-mail account or your personal e-mail account.

If this request is denied in whole or in part, you are required by O.C.G.A. § 50-18-72(h) to cite in writing the specific statutory exemption upon which you have relied, as required by law. Please provide all separate portions of otherwise exempt material. Please waive any costs associated with this request, or first inform me about such costs as required by law.

The Law requires a response by you within three business days of your receipt of this request and provides sanctions for non-compliance.

Thank you in advance for providing these public records.

Sincerely,

Nydia Tisdale
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Ex parte communication from applicant's counsel to board

Postby Nydia Tisdale » Sun Jul 24, 2011 4:00 pm

From: Ethan Underwood
To: pllivesay@forsythco.com ; pwbowman@forsythco.com ; jmkelleher@forsythco.com ; jmmurphy@forsythco.com ; jsmoses@forsythco.com
Cc: Cox, Teressa M. ; Ken Jarrard
Sent: Friday, July 22, 2011 1:26 PM
Subject: Bridgepoint Community Networks, Inc. - Restrictive Covenants

Dear Planning Commissioners:

I have been asked by several of Planning Commissioners to respond to concerns whether covenants regarding Crystal Cove Shores Subdivision are still in effect. In particular, the questions has arisen regarding whether O.C.G.A. § 44-5-60 reinstated the covenants.

The operative sections of O.C.G.A. § 44-5-60 are subsections (b) & (d), which provide:

(b) Notwithstanding subsection (a) of this Code section, covenants restricting lands to certain uses shall not run for more than 20 years in municipalities which have adopted zoning laws nor in those areas in counties for which zoning laws have been adopted.

&

(d) (1) Notwithstanding the limitation provided in subsection (b) of this Code section, covenants restricting lands to certain uses affecting planned subdivisions containing no fewer than 15 individual plots shall automatically be renewed beyond the period provided for in subsection (b) of this Code section unless terminated as provided in this subsection. Each such renewal shall be for an additional 20 year period, and there shall be no limit on the number of times such covenants shall be renewed.

(2) To terminate a covenant as provided in paragraph (1) of this subsection, at least 51 percent of the persons owning plots affected by such covenant shall execute a document containing a legal description of the entire area affected by the covenant, a list of the names of all record owners of plots affected by the covenant, and a description of the covenant to be terminated, which may be incorporated by reference to another recorded document. By signing such document, each such person shall verify that he or she is a record owner of property affected by the covenant. Such document shall be recorded in the office of the clerk of the superior court of the county where the land is located no sooner than but within two years prior to the expiration of the initial 20 year period or any subsequent 20 year period. The clerk of the superior court shall index the document under the name of each record owner appearing in the document.

Forsyth County adopted zoning regulations in 1973, so at the time the covenants were recorded on April 16, 1969, the provisions of O.C.G.A. § 44-5-60(b) were not applicable. This raises the question of whether there is any limitation for covenants created prior to the effect of zoning laws in Forsyth County.

The Supreme Court addressed this issue in House v. James, 232 Ga. 443 (1974). In its holding, the Court held that Code § 29-301 [enacted in 1962, and now codified as O.C.G.A. § 44-5-60(b)], becomes effective at the time the county or municipality adopts a zoning ordinance. Thus, the 20 year limitation begins to run at the time the municipality or county adopts zoning laws. This rule was affirmed by the Georgia Court of Appeals in Turtle Cove Property Owner's Ass'n, Inc. v. Jasper County, 255 Ga. App. 560 (2002).

In the case at hand, since Forsyth County adopted zoning laws in 1973, and the Crystal Cove Shores covenants contain no renewal provisions, these covenants expired at the latest in 1993.

With regard to O.C.G.A. § 44-5-60(d), this code section was enacted in 1993. Georgia courts have held on several occasions that O.C.G.A. § 44-5-60(d)(1) does not apply retrospectively. Bickford c. Yancey Dev. Co., 258 Ga. App. 371 (2002), aff’d 276 Ga. 814(2003); Appalachee Enters. Inc. v. Walker, 266 Ga. 35 (1995), overruled on other grounds; Turtle Cove Property Owner's Ass'n, Inc. v. Jasper County, 255 Ga. App. 560 (2002). As the Crystal Cove Shores conditions were issued in 1969, the covenants are not automatically renewed by O.C.G.A. § 44-5-60(b).

It is important to note, the even if the Crystal Cove Shores covenants were in effect in 1993, this does not cause them to fall under the provisions of O.C.G.A. § 44-5-60(d). The operative date is when the covenants were recorded, not when they were in effect. See Turtle Cove Property Owner's Ass'n, Inc. v. Jasper County, 255 Ga. App. 560 (2002), which states that when “covenants were recorded before 1993, the automatic renewal provided by OCGA § 44-5-60(d) does not apply to them.”

As there are no renewal provisions in the Crystal Cove Shores covenants, the term of the Crystal Cove Shores covenants is limited to 20 years from the date Forsyth County adopted zoning laws. Consequently the Crystal Cove Shores covenants expired in 1993, and were not renewed.

Ethan Underwood
Lipscomb, Johnson, Sleister, Dailey & Smith, LLP
112 North Main Street
Cumming, Georgia 30040
Telephone: (770) 887-7761
http://www.lipscombjohnson.com
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Subdivision's restrictive covenants still in effect

Postby Nydia Tisdale » Sun Jul 24, 2011 4:00 pm

TURTLE COVE PROPERTY OWNERS ASSOCIATION, INC. v. JASPER COUNTY

Court of Appeals of Georgia
No. A02A0413
May 29, 2002

The issue in this case is whether a subdivision's expired restrictive covenants were renewed.  We find that the covenants were renewed and are still in effect.   The trial court's holding to the contrary is therefore reversed.

Turtle Cove is a subdivision in Jasper County.  In 1971, the developer of Turtle Cove encumbered the subdivision property with various covenants and restrictions.  The declaration of covenants, recorded with the county, provides that the covenants are to remain in effect for 45 years, and upon the expiration of that period the covenants will automatically renew for successive 15-year terms, unless two-thirds of the property owners sign an agreement to terminate or modify the covenants.

At the time the declaration was recorded, the county had no zoning laws.  But in 1975, Jasper County adopted zoning laws, which are still in effect.  Because the county zoning laws and the covenants have been in effect for more than 20 years, Georgia law mandates that the 45-year term of the covenants is no longer valid.  Instead, the covenants may run for only 20 years from the date of the zoning ordinance.

OCGA § 44-5-60(b) provides:  “[C]ovenants restricting lands to certain uses shall not run for more than 20 years in municipalities which have adopted zoning laws nor in those areas in counties for which zoning laws have been adopted.”  And the Supreme Court has held that where covenants and zoning have been in effect for more than 20 years, the covenants are limited to 20 years even if the zoning was adopted after the covenants were recorded.  Consequently, the initial term of the Turtle Cove covenants expired in 1995.

In 1998, Turtle Cove Property Owners Association, Inc. sued Jasper County for a rebate of property taxes paid from 1993 to 1996 on the common property in the subdivision.  The association claimed that the common property had no taxable value because it was encumbered by the covenants.  The county answered the complaint, asserting that the covenants were no longer in effect.

The case proceeded to a jury trial.  The jury returned a verdict, denying tax rebates for 1993 through 1995, but awarding the association a rebate for 1996.  The court, however, entered judgment notwithstanding the verdict in favor of the county, finding that the covenants expired in 1995, so the association is not entitled to a tax rebate for 1996.  The association appeals from the court's judgment.

The parties agree that the covenants expired, pursuant to OCGA § 44-5-60(b), in 1995.  They also agree that the automatic renewal provision found in OCGA § 44-5-60(d) does not apply here.  That provision states that after the initial 20-year term, covenants in subdivisions of at least 15 plots shall automatically renew for unlimited 20-year terms, unless 51 percent of the plot owners execute a document to terminate the covenants.  The Supreme Court has held that this statutory automatic renewal provision, which took effect in 1993, shall only apply prospectively to covenants recorded after 1993.  Because the Turtle Cove covenants were recorded before 1993, the automatic renewal provided by OCGA § 44-5-60(d) does not apply to them.

This case therefore turns on whether the covenants were renewed after their 1995 expiration pursuant to the automatic 15-year renewal provision set forth in the declaration of covenants.  Restrictive covenants on real property are valid and enforceable so long as they are not contrary to law or public policy.  So the dispositive question before us is whether the Turtle Cove covenants' automatic renewal provision is contrary to law or public policy.

There is nothing in the governing statute, OCGA § 44-5-60, which prohibits the automatic renewal of covenants.  On the contrary, the public policy evidenced by the automatic renewal provision of OCGA § 44-5-60(d) clearly favors the automatic renewal of covenants.  And we know of no other law or public policy that is contravened by the Turtle Cove renewal provision.  In fact, in another case in which the automatic statutory renewal did not apply, we approved of a renewal procedure set forth in the covenants.  Accordingly, we find that the Turtle Cove provision for automatic renewal of the covenants for 15-year terms, unless two-thirds of the property owners agree to terminate or modify the covenants, is not contrary to law or public policy.

Moreover, there is no evidence that two-thirds of the property owners agreed to terminate or modify the Turtle Cove covenants. Consequently, upon their expiration in 1995, the covenants automatically renewed for 15 years.  The trial court therefore erred in finding that the covenants did not renew and in entering j.n.o.v. based on that erroneous finding.

Judgment reversed.


Read more: http://caselaw.findlaw.com/ga-court-of- ... 38223.html

J.N.O.V. — Judgment Non Obstante Veredicto (Latin: Judgment Not Withstanding the Verdict).
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Ethan Underwood erred in ex parte advice to planning board

Postby Nydia Tisdale » Sun Jul 24, 2011 5:00 pm

An officer of the court and a man of the cloth are held to higher standards.

The AboutForsyth Forum
Updated August 1, 2011
By Nydia Tisdale

When Crystal Cove Shores Subdivision was created in 1969, the developer designed an idyllic, exclusive, residential, neighborhood on the shores of Lake Lanier. Restrictions on record prohibit any commercial activity and require a community center, swimming pool, tennis court or stable to be approved by a substantial number of neighbors with a list of notarized signatures of property owners. Transient tenants don't count.

Bridgepoint Community Networks, Inc. has submitted an application to Forsyth County for a conditional use permit (CUP) to build a non-profit club or lodge on property zoned lake residential. Bridgepoint Community Networks, Inc. is a non-profit corporation with Seventh-Day Adventist Pastor Bill Levin, wife Jan Levin and Crystal Cove homeowner Priscilla Pruitt as directors.

Three name changes

Priscilla Pruitt canvassed her neighborhood in 2006 collecting signatures for a non-profit community center; however, at the time, Bridgepoint Community Networks, Inc. did not exist. Bridgepoint Community Networks, LLC — a for-profit, limited liability company — was dissolved on Oct. 19, 2007 to allow the creation of Bridgepoint Community Networks, Inc. — a non-profit corporation. This is yet another case of mistaken identity for a corporate entity that appears so often in the Forsyth County Planning Department.

Just as the company name has changed — so, too, has the building name changed. It has been called everything from an organic house church to a community center to a non-profit club or lodge — depending if the audience is Seventh-Day Adventist group Good News Atlanta, Crystal Cove residents, Forsyth County officials or the IRS.

The lot name has changed, as well. The quarter-acre well lot is now the half-acre church lot. The surveyor must have really sharpened his pencil to somehow double the lot size on paper.

The Unified Development Code of Forsyth County precludes a church building on this property because it is too small to meet setback requirements.

The proposed, non-profit, club or lodge — owned and operated by a private entity — does not equal a community center. A private club or lodge is not owned by the community. A private club or lodge is not controlled by the community. A private club or lodge is not operated by the community. Does everyone in the community get a key to the club? church? community center? Can a private club or lodge get a liquor license?

In fact, Bridgepoint owners Bill & Jan Levin live in Adairsville, Bartow County — outside the Crystal Cove community and outside of Forsyth County.

Three applications

This is the third CUP application in as many years. The first application was submitted in Dec. 2008 by then District 4 Commissioner David Richard in his eleventh hour and eventually withdrawn by current Commissioner Patrick Bell in May 2009 after an uproar of community dissent to a commercial building that will forever change the character of their Crystal Cove enclave.

The second application was submitted in June 2009 by the property owner who bought the land for a song — the price of $6,363 for the tax deed on the tiny, abandoned, well lot that previously serviced sixty homes before county water was available. The law firm Lipscomb Johnson Sleister Dailey & Smith LLP contributed $5,000 towards this purchase in Aug. 2008. In Dec. 2009, this application was also withdrawn to address the issue of installing a septic system next to a deep water well. Where will the septic lines go? What about capping the well?

The third application, submitted in Sep. 2010, was heard by the Planning Commission in May 2011, but the public notice lacked the existing zoning district as required by state law and county code, so the Board of Commissioners remanded the matter back to the Planning Commission for another public hearing on July 26.

Polls, parking and traffic

Law firm Lipscomb Johnson conducted a poll recently regarding Crystal Cove Shores Community Center asking: "Do you support the approval of a community center . . . to be operated by a non-profit organization?" — without identifying the non-profit entity or the activities to be held there. Only supporting poll ballots were submitted to the Planning Department; ballots returned in opposition were withheld. A true poll tallies all responses.

Parking is a problem. With only six spaces — less one reserved for handicapped use — that leaves five. A director must be present whenever the building is open. The Levin’s commute by car, which leaves just four spaces to service 30 to 40 kids presently coming to Friday night Bible study. Kids travel at their own peril by bike or foot on 20-foot-wide streets with no sidewalks, no shoulders and no street lights to a busy trapezoid at the T intersection of Thunder and Crystal Cove Trails. What happens in the rain? in the snow? in the dark?

Sheriff Ted Paxton writes in a letter to Crystal Cove homeowner Jill Martin, "There is the potential for this center to increase the amount of vehicular traffic on Crystal Cove Trail which could increase the risk of public safety in the area."

Three school buses stop at the corner of Crystal Cove and Thunder Trails twice every school day — just a few feet away from a single driveway to enter and to exit the church site. With cars, bicycles and pedestrians coming to the center every hour for a variety of classes to mentor children, this intersection is an accident waiting to happen.

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"The Sheriff's Office in cooperation with residents of the Crystal Cove community has worked very hard over the past several years to address issues within the area. The support and cooperation from the community has been a success and we have seen a significant decline in crime related issues in the Crystal Cove area. The effort of the Crystal Cove community in conjunction with our Neighborhood Watch Program and our Community Relations Unit has definitely shown results.

"I have concerns relative to this community center attracting the type of person back into the area which we have worked hard to remove from the Crystal Cove community," Sheriff Paxton states.

Six registered sex offenders

Two registered sex offenders live in either direction from the church lot on Crystal Cove Trail; two more reside on Medlock Road; a fifth lives on Knight Road and a sixth stays on Sawnee Terrace — a stone's throw away from the proposed community center to facilitate classes for Crystal Cove youth. Georgia law requires that registered sex offenders shall not live or work within 1,000 feet of any child care facility, school, or area where minors congregate.

Such distance shall be determined by measuring from the outer boundary of the property on which the individual resides to the outer boundary of the property of the child care facility, school, or area where minors congregate at their closest points.

"Area where minors congregate" shall include all public and private parks and recreation facilities, public and community swimming pools, playgrounds, skating rinks, gymnasiums, school bus stops, neighborhood centers and similar facilities providing programs or services directed towards persons under 18 years of age.

School buses cannot stop near the homes of registered sex offenders.

Three parties and their counsel

The Planning Commission makes a recommendation to the Board of Commissioners to approve, to deny, or to approve with conditions.

Three parties are involved in this process: 1) applicant Bridgepoint Community Networks, represented by Ethan Underwood, 2) numerous Crystal Cove homeowners in opposition, represented by Joe Stauffer, and 3) Forsyth County as governing body, represented by Ken Jarrard.

If a public official, who is paid by public funds, has a question on a legal matter on business before the board, that official should consult the Forsyth County Attorney, also, paid by public funds.

Ex parte communication

In an e-mail obtained by an Open Records Request, attorney for applicant, Mr. Underwood, writes: "I have been asked by several of Planning Commissioners to respond to concerns whether covenants regarding Crystal Cove Shores Subdivision are still in effect. In particular, the questions has arisen regarding whether O.C.G.A. § 44-5-60 reinstated the covenants."

Mr. Underwood renders his professional, legal opinion regarding restrictions on record on the subject property reviewing Georgia code and citing case law and concludes that the restrictive covenants for Crystal Cove Shores Subdivision were not renewed.

However, in the case he cites, Turtle Cove Property Owners Association, Inc. v. Jasper County, 255 Ga. App. 560 (2002), Mr. Underwood errs in stating that the Georgia Court of Appeals affirmed the lower court's ruling. In fact, the judgment was reversed and the Court of Appeals found that the covenants were renewed and are still in effect.

Therefore, the Crystal Cove Shores Subdivision deed restrictions most likely still control. Warranty deeds of numerous Crystal Cove property owners read: "Subject to all easements and restrictions of record."

The ex parte communication between the applicant's attorney and the recommending body is highly improper and unethical and could create an unfair bias by the board. The planning board should strike any "legal" counsel proffered by "Esquire" Ethan.

Zoning attorneys have no place in providing legal counsel to decision makers who sit in judgment on zoning applications.

Not only that — "Esquire" Ethan Underwood has got his "legal" advice all wrong. Perhaps, this is due to working with an ex-convict bank fraud felon for so long, that he can no longer recognize fact from fiction.

"I did talk to [Forsyth County Attorney] Ken Jarrard . . . because you're right, he is our attorney," Commissioner Patrick Bell amazingly agreed.

Higher standards

An officer of the court and a man of the cloth are held to higher standards. As an officer of the court, an attorney has a duty of candor to the tribunal, which means one must tell the truth. A pastor has to answer to God.

An officer of the court has conceivably convinced a man of the cloth to deny his church. Mr. Underwood has presumably misled Pastor Levin and is playing tricks on the planning board. The end does not justify the means.

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Ethan Underwood with law firm Lipscomb Johnson Sleister Dailey & Smith LLP
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Church is not the building — it's the community

Postby Nydia Tisdale » Sun Jul 24, 2011 10:46 pm

Can Mayor Mitch Landrieu reinvent New Orleans?

60 Minutes
Produced by David Schneider
May 1, 2011

New Orleans is one of the oldest cities in America. It's rich with culture and legendary for its indulgences and its disasters. Almost six years after Katrina, and one year after the BP oil spill, New Orleans has a new mayor with a new plan on how to run the city.

Mitch Landrieu says it's time to rebuild this place not into what it was but into what it can be. As we first told you in May, he brings his own brand of intensity to the Big Easy.

And like many people who live there, Landrieu is in the middle of a love affair with his troubled city, as we discovered when we caught up with him during Mardi Gras.

New Orleans is a rich gumbo of French, Spanish and Afro-Caribbean culture that has been slow cooking for three centuries. Tourism there is a $5 billion-a-year industry. And the biggest draw is Mardi Gras.

Beneath the Mardi Gras masks and the makeup, buried deep in the music, is an energy to New Orleans like no place else in America. And Mayor Mitch Landrieu moves to it with his own rhythm of leadership.

"The people of New Orleans not only are resilient, and not only are rebuilding back, but they're examples that in many areas we're doing better than we were before. And people just didn't fold their tent and go away," Landrieu said. "Because the things that we learned in Katrina is that the value of life does not come from the size of the home that you live in. That your church is not the building that you go to. It's the community that you have grown up and lived with."

http://www.cbsnews.com/stories/2011/07/ ... 3413.shtml
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Discussion on Bridgepoint Community Networks, Inc.

Postby Nydia Tisdale » Sun Jul 24, 2011 10:48 pm

Forsyth County Planning Commission
Work Session
July 19, 2011

Listen here:
Bridgepoint Community Networks, Inc.
Running time = 37:26

Chairman Pam Livesay
Secretary Pam Bowman
Member Jim Kelleher
Member Matt Murphy
Member Dr. Joe Moses

Interim Planning Director Tom Brown
Interim Principal Planner Sharon Farrell
Jeff Oursler, Crystal Cove homeowner
Ethan Underwood, attorney for applicant
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