Showdown over trees at Freedom Parkway

Trees can cause so much trouble. The current residents of 830 Ponce de Leon Ave. sleep in the open air beneath massive oak trees up to five stories high, some more than 4 feet in diameter.

The future residents of a planned, four-story, 51-unit Paces Properties condo development on the same lot might not have any of those trees to enjoy, and the Virginia-Highland Civic Association says that just won't do.

The neighborhood group has filed a lawsuit seeking to prevent Paces Properties from clear-cutting the two-acre vacant lot on Ponce directly across from Freedom Parkway. The suit was thrown out of Fulton County Superior Court Aug. 4. But on Aug. 9 the Georgia Supreme Court granted a stay to stop any construction activity at the site pending appeal of the Superior Court's decision. And on Sept. 8, the high court denied a Paces Properties motion to have the construction ban at the site lifted, so the stay will last until the justices consider the civic association's appeal.

The high court could take up to a year to rule on the appeal, a difficult task considering this isn't just another "save the trees" or "not-in-my-backyard" issue.

The crux of the dispute goes back to Interstate 485, a now infamous planned highway that would have sliced through Virginia-Highland and several other historic 'hoods. Then-Gov. Jimmy Carter killed I-485 in 1972 thanks to an outpouring of neighborhood opposition and a lawsuit that, when settled, gave the civic association the authority to approve or reject what happens to the leftovers of I-485.

After a related dispute over what became the Freedom Parkway was settled in the early 1990s, Cobb County-based Paces Properties bought the land from the Georgia Department of Transporta-tion for about $1.5 million. The deal now looks better than buying a gold mine. Condos along the Ponce corridor are easily going for between $200,000 and $250,000. That means the project (simultaneously called Paces on Ponce, Paces on Freedom Parkway and the Carlton Condominiums) could net between $10 million and $13 million.

Paces' plans call for underground- and surface-parking spaces, and a large swimming pool. When developers revealed the condo development plan to the Virginia-Highland Civic Association on May 1, members had only one request: Save the trees along the edge of the development.

"We just want them to leave the edge trees, so there'll be some buffer to the neighborhood," says Steve Kushner, an association board member. "We're not against development. It's great people want to build there, but we don't want them to clear cut the lot and create another heat island."

The civic association asked Paces Properties to preserve 14 trees on the perimeter of the property. Paces came back with a revised plan that included the same design blueprints, but more designated "saved" trees. "Eighteen of the trees will be placed in serious jeopardy" because of the project, the lawsuit says.

Stephanie Coffin, an arborist and member of the Virginia-Highland Civic Association, says in an affidavit that only three of the 48 trees on the site will survive.

It was at this point — in July — that the neighborhood group called in its top dog, former Georgia Attorney General Michael J. Bowers. "We offered to mediate. We were turned down, and the association asked me to file suit," Bowers says.

In its response to the lawsuit, Paces Properties asserts that the civic association has no legal say over what can and can't be done with the land.

"The issue is not whether the trees should be saved. It turns on whether or not a property owner without a notice [of the neighborhood's special standing] in the deed records is bound to an outside agreement," says a Pace Properties source who asked not to be identified.

That means that because there were no liens against the land on public record, the purchaser wouldn't be restricted by anything other than zoning laws.

"I respectfully disagree," counters Bowers. He argues that because the City of Atlanta and the Georgia General Assembly passed measures recognizing the settlement that gave the association authority over the disputed land, the lack of notice in the property record of the land is meaningless.

"The law is pretty clear that parties are charged with knowing about notices other than what is in the property records," Bowers says. "The city's ordinance and the state's resolution gives this legal settlement the word of law, and everyone is charged with knowledge of the law, whether they are aware of it or not."

Construction could begin if the Supreme Court decides not to hear the appeal and ends the construction ban. If the court decides the civic association's case is strong enough to warrant a trial, it will likely extend the construction ban until the lawsuit is settled once and for all.