The grave of Judge John Heard.

There’s a mystery surrounding an historic Sandy Springs cemetery that could become a key point in a lawsuit against the city.

The Heard Family Cemetery was sold at an auction at the Fulton County courthouse several years ago because of unpaid taxes, but cemeteries aren’t supposed to be taxed under state law. It’s not clear from the public records why the property was sold for back taxes. The 1-acre parcel is currently exempt, according to the Fulton County Assessor’s website.

The property’s new owner wants to build a house on part of the land he believes does not contain graves, a plan that has infuriated neighbors.

A lawsuit filed in Fulton County Superior Court in August asks a judge to overturn the city’s decision to deny a permit to build a home on the property. The city denied the permit because the property contains a cemetery, according to court records.

The city has previously intervened on the property’s behalf.

The City Council in 2007 enacted a moratorium to protect the cemetery from development when plans to build there bubbled up.

The cemetery, containing graves of one of the city’s founding families, has plots dating back to the 1840s, according to Heritage Sandy Springs. It was the scene of federal troops crossing the river during the Civil War at what was known as Isom’s Ferry. There currently is a historical marker commemorating the event.

Judge John Heard, the original owner, fought in the Confederate Army and was a well-known resident who lived until his 90s. He is buried at the cemetery. His regular birthday barbecues drew a host of notables from around Georgia and he was an advocate of public education.

Kimberly Brigance, Director of Historic Resources and Programs for Heritage Sandy Springs, is among those who are furious about the uncertain fate of the property.

“It’s pitiful and shameful what is happening,” Brigance said.  “We should all be embarrassed and ashamed that we’re not caring for the founders and builders of our community in a decent, if not respectful way.”

It’s not entirely clear which party dropped the ball on taking care of the cemetery. Brigance said it was the city’s responsibility. But the lawsuit suggests the city never had jurisdiction over it, at least not enough to block plans to build a house there.

The property passed to Heard’s descendants but eventually wound up on the tax assessor’s delinquent list and was sold to Florida-based American Lien Fund in 2006. In December 2007, Mary Ellis filed an affidavit of descent stating that she was the rightful inheritor of the property. That same month she sold the property to Henry Cline, who paid the $38,400 tax bill and took possession. In July of this year, Cline sold the property to current owner Christopher Mills for $1.

Mills, a local attorney, says in his lawsuit against the city that the earlier deed restrictions no longer apply because various actions have breached the covenants. The lawsuit asserts that over the years the Heard family gave easements to Georgia Power Co., a violation of the cemetery restrictions. He also said Ellis decision to sell the property to Cline breached the covenants because Cline isn’t a member of the Heard family.

Mills wants to build a single family home on the property, located at 0 Heards Drive. The city denied Mills’ application, citing a covenant prohibiting development on land designated as a cemetery.

Mills filed a lawsuit in Fulton County Superior Court on Aug. 8, 2012, asking a judge overturn the city’s decision.

Mills declined to comment. City Attorney Wendell Willard said the city does not comment on pending litigation and said the city is preparing its response.

Rachel Rosner, who lives two houses down from the cemetery, said the neighbors are considering hiring an attorney to intervene in the lawsuit. She said neighbors were led to believe that the property would remain a cemetery.

“It’s this beautiful, tranquil, historic spot that I’ve always loved,” Rosner said.

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