Two-decade property dispute continues; city's repair plan could cost taxpayer's $3.3 million

mowen@ledger-enquirer.comSeptember 11, 2012 

Atlanta­ -- The attorney for Dr. Kenneth Barngrover, who has been at odds with the city of Columbus over a property dispute for two decades, called the impasse "a 20-year nightmare for my client" during a hearing Tuesday before the Georgia Supreme Court.

An attorney for the city countered that the nightmare is of Barngrover's own making by dragging the case out when it could have been solved by now.

City Attorney Clifton Fay, who attended but did not participate in the proceedings, said afterward that he was pleased with the way the arguments went and hopes to receive a favorable ruling sometime later this year.

Tuesday's hearing before the high court has its roots in 1991, when Barngrover bought the Cathryn Drive property. Soon, he discovered there were problems with a sewer and storm drain system that ran under his property.

Eventually, the house became uninhabitable and Barngrover sued the city. He prevailed, and Superior Court Judge Robert Johnston ordered the city to make any and all repairs necessary, and to repair the house to its original condition or replace it.

The original plan to repair the sewer and replace the house was going to cost taxpayers $11.5 million, but the city devised a way to do it for $3.3 million. Judge Johnston had since retired, and Judge Gil McBride approved the change in the court order in 2007. Barngrover appealed that ruling to the state Supreme Court, saying McBride had no standing to amend the earlier ruling.

Barngrover's attorney, Jim Patrick of Columbus, told the justices Tuesday that the city has consistently balked at obeying an earlier court order and has been the beneficiary of an improper ruling by a Superior Court judge.

Patrick said the city's less expensive plan does not remove the sewer line from his client's property, just routes it away from the house. In doing so, he said the ruling violates Barngrover's Fifth Amendment right not to have his property seized. He pointed to the original case, when the city at first claimed to have no easement, he said, to avoid responsibility for the problem in the first place.

"The city attorney said the city had no easement, that they claimed no easement. That's in the record," he said. "Now they want to claim an easement. This is an illegal confiscation of my client's property."

Representing the city, attorney Thomas Gristina argued that McBride's decision does not grant the city an easement on the property. The city already has that easement, and pointed to testimony by the Barngrover side during the original trial, he said. They claimed that the city had the easement, and thus the responsibility to repair the damage, he said.

"In this very case in 1993, Dr. Barngrover took the position, as he had to, that the city had to have the easement because the city had to have the obligation to maintain those pipes in order for him to win," Gristina said. "And the jury obviously found that the city did have the easement and were responsible for those pipes."

He also argued that McBride did indeed have the authority to modify the original ruling, as long as it held true to the intent of the original. He cited state law that allows the court to "mold its decrees so as to meet the exigencies of each case."

Ultimately, Gristina said the case would have been resolved had Barngrover not continued to fight it in court.

"The city's ready to go. The city's been ready since 1999 to work on his property. We ask that you let us do that. Let us comply with the 2011 order so that Dr. Barngrover can get back on that property."

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