By Dyana Bagby
The price tag for the city to defend itself in ongoing zoning-related lawsuits continues to tick upward.
At the Oct. 10 City Council meeting, members unanimously voted to approve another $150,000 to pay outside counsel defending the city in three separate lawsuits. That funding brings taxpayer costs to pay for the lawsuits to more than $454,000.
City Attorney Chris Balch said the money was to cover costs for three lawsuits: the Stardust lawsuit, what is known as the Hastings case, and a lawsuit filed this year against the city by a resident trying to stop the Dresden Village mixed-use development from being built on Dresden Drive.
None of these cases are covered by city insurance, according to city officials.
The Stardust case
Price tag: $416,063.50 to attorney Scott Bergthold
The Stardust case goes back to shortly after the city was incorporated in 2012. Stardust, owned by Michael Morrison, operates at a smoke shop at 3007 Buford Highway near the Pink Pony strip club.
Weeks after the city was incorporated, the business began selling “sexual devices” which the city contends violated city ordinance. The city began code enforcement against Stardust for selling sex toys, which it deemed as illegal under its ordinances. In 2013, for example, Stardust was cited by code enforcement more than 500 times.
The city states Stardust cannot operate legally because of its close proximity to another sexually oriented business, the Pink Pony, and also because it did not clearly define what kind of business it was when it applied for a business license.
Morrison, represented by Cary Wiggins, sued the city in federal court in 2014, alleging the city is violating his First Amendment rights and also claiming the city illegally denied him a sign permit.
Representing the city in the Stardust lawsuit is Scott Bergthold, a Tennessee attorney who specializes in municipal laws cracking down on sexually oriented businesses. Bergthold represented Brookhaven in its lawsuit against the Pink Pony which resulted in a 2014 settlement in which the strip club agreed to close down in 2020 while also paying the city $225,000 a year to cover police costs.
U.S. District Judge Eleanor Ross in 2016 ruled in favor of Brookhaven in the Stardust suit, but recent court records show Stardust is petitioning the case be heard the 11th Circuit Court of Appeals.
The Hastings case
Price tag: $29,559.57 to the firm Carothers & Mitchell
JLB Realty and SDS Real Property, developers for the property known as the former Hastings Nursery site, are suing the city in a case that dates back to 2015.
JLB Realty and SDS Real Property sued the city and some individual residents two years ago after the city refused to issue a land disturbance permit for a 5-acre site located at 3920, 3926 and 3930 Peachtree Road for a mixed-use development. The property abuts the Historic Brookhaven neighborhood and lies within the Brookhaven-Peachtree Overlay District.
The development, named JLB Porter Square, includes plans for 273 apartments, 17,695 square feet of retail and commercial space, 2,500 square feet for a leasing office and 6,691 square feet for an enclosed amenity area.
The city and developers have battled in court for two years and the city is currently seeking to take the case to the state Supreme Court.
The Dresden Village case
Price tag: Slightly more than $8,500 to the firm Freeman Mathis
In February, Steve Pepmiller, who lives on Caldwell Road, sued the city in DeKalb Superior Court to overturn its aproval to rezone 4 acres on Dresden Drive for a mixed-use development.
Connolly Investment and Development intends to build a five-story complex with 169 apartments and retail shops on the ground floor. The development will also include a six-level parking deck, seven for-sale townhouses facing Caldwell Road and the Scott Serpas Dixie Moon restaurant on Caldwell Road.
In recent weeks, Scott Serpas, the renowned Brookhaven chef, announced he was opening a barbecue restaurant in the former Slice restaurant at 2524 Caldwell Road, located just feet away from the Dresden Village mixed-use development.
Brian Fratesi, vice president of Development and Acquisitions at Connolly, said the Dixie Moon restaurant is still part of the Dresden Village development.
“We will be moving forward with the development, as soon as the lawsuit is resolved, which we expect to be very soon,” Fratesi said in an email. “We cannot comment in any more detail on the lawsuit because of litigation.
“Scott Serpas’ Dixie Moon is still slated for the restaurant pad along Caldwell as detailed in the approved zoning plan. Additionally, we are talking to a number of unique local restaurant concepts for the retail along Dresden Drive that will complement the existing restaurant options,” Fratesi added.