City Attorney Wendell Willard has co-signed a motion with an attorney representing 28 descendants of Judge John Heard asking a Fulton County Superior Court judge to return Heard’s historic family cemetery.

The motion, filed on Feb. 25 by Willard and the Heard descendants’ attorney, Wright Mitchell, contains summaries of numerous court precedents and additional evidence in support of the descendant’s claim to the property.

“This court must grant summary judgment to defendants because the material undisputed facts establish that Heard Family Cemetery is not abandoned,” the joint motion says. “Therefore, it is perpetually dedicated to burial purposes.”

The motion also asks the court to award the descendants unspecified damages for alleged trespass on the property by its current owner.

Local attorney Christopher Mills, who is not a Heard descendant, holds title to the property, located at 0 Heards Drive in Sandy Springs. Mills wants to build a house on a portion of the land that does not contain graves, according to an archeological survey Mills obtained.

Sandy Springs officials denied Mills request for a building permit on the one-acre parcel, citing a city ordinance prohibiting development on land dedicated as a cemetery. Mills sued in August and the resulting uproar got the attention of the Heard descendants around the country.

Mills has declined to comment on the case. His in-laws, Henry and Wanda Cline, also have not returned messages seeking comment. Mills received the property from the Clines, who obtained it by paying off back taxes and acquiring the property rights from Mary Ann Elsner, a Heard Descendant. The property is legally exempt from taxes under Georgia law, however. The lien was placed on the property by mistake.

The Clines paid $38,400 to settle the tax debt.  The lawsuit claims the Clines in 2008 received $18,898 from Fulton County, “presumably as reimbursement for the money they paid to redeem property sold by Fulton County.”

Neighbors living around the cemetery thought the Clines intended to donate the property to Sandy Springs Heritage and Preservation, according to the court records. They were furious when they learned in 2012 that the Clines transferred it to Mills so it could be developed.

The lawsuit cites several court precedents where state judges have honored properties dedicated as cemeteries. The Heard cemetery contains the grave of Judge John Heard, a Confederate veteran who in 1900 dedicated the property as a cemetery.

“This deed is made for the purpose of maintaining and keeping perpetually the property described above, for a family burying ground, for the grantor and his heirs, and the same is to be used for said purpose only,” the deed says.

A group of neighbors living around the cemetery formed Friends of the Heard Cemetery to raise money for the legal fund to protect the cemetery. A Jan. 27 fundraiser brought in more than $10,000.

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