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SRWA Lawsuit Challenging DeKalb County Land Swap
SRWA Lawsuit Challenging DeKalb County Land Swap
Plaintiffs,
Defendants
VERIFIED COMPLAINT
COME NOW, Plaintiffs South River Watershed Alliance, South River Forest
Coalition, Margaret S.Brady, Allen P. Doyle, Joel Finegold, ]oseph S. Peery and John
and Jane Does (collecfively,"PIatnti[f"") and hereby file this Complaint for Declaratory
1.. This case seeks declaratory judgments, injunctive relief, and a writ of mandamus,
herein as"lCP" or the "Park"), which land was conveyed, accepted, dedicated, and held
continuously as public park land for the use and benefit of the public. This case arises
from Dekalb County's intent to andf or decision to exchange approximately forty (40)
acres, more or less, of Intrenchment Creek Park - public park property - to a private
entity, Blackhall Studios, for highly disturbed and less valuable property, both
represents an unlawful conversion of public park land to private uses and a waste of
taxpayer money. The land exchange violates the conditions imposed via deed on
Intrenchment Creek Park, which conditions may be enforced,by any member of the
general public who utilizes the Park. The land exchange is not in accordance with laws
and regulations concerning the use and disposal of County property. Among other
reasons, Plaintiffs challenge the exchange of public park land as ultra vires, and thereby
void.
political subdivision of the State of Georgia and pursuant to O.C.G.A. S 9-1'1,-4, may be
served by delivering a copy of the Complaint and summons in this action to DeKalb
County CEO, Michael L. Thurmond, 1-300 Commerce Driae Decatur, Georgia 30030 andf or
Clerk to CEO Michael L. Thurmond and DeKalb County Board of Commissioners ,DeKalb
County, L300 Commerce Drioe Decatur, Georgia 30030 andf or the Chairman/Presiding
3. Defendant Blackhall Real Estate Phase II, LLC is a foreign limited liability
company doing business in the State of Georgia, including in DeKalb County. Pursuant
to records on file with the Georgia Secretary of State, its principal place of business is
14L5 Constitution Road SE, Atlanta, Georgia 3031,6 and it lists a record address as17
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Blackland Road, NW, Atlanta, Georgia30324. Upon information and belief, it is
associated with Blackhall studios, LLC and will be referred to collectively herein as
properties and operates film and production studios in SW DeKalb County near
Intrenchment Creek Park. The land exchange that forms the basis of this lawsuit was
delivering a copy of the Complaint and Summons on its Registered Agent, identified
4. Plaintiff South River Watershed Alliance ("SRWA"), who brings this action on
behalf of itself and its supporters, volunteers and members, is a Georgia non-profit
corporation. SRWA's mission is to protect and restore the water quality and
biodiversity of the South River watershed to the beneficial use of humans and wildlife.
As part of that mission, SRWA is committed to protecting the ecological resources of the
South River watershed as well as ecological restoration of the South River for the
benefit of nature and people, which includes protection of Intrenchment Creek Park,
including from development. Intrenchment Creek Park's tree canopy, wetlands and
floodplain work together to protect the South River's largest urban ttibutary,
Intrenchment Creek. The creek and river depend on Intrenchment Creek Park for
improved water quality and protection from destructive stormwater runoff. As part of
its work, SRWA has tried on numerous occasions to engage DeKalb County on matters
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related to the land swap, including by requesting relevant in-formation related to the
5. Plaintiff SRWA has standing to bring this action in its own right and on behalf of
its members. Many of SRWA's members, supporters and volunteers are citizens and
taxpayers of DeKalb County. SRWA's members, supporters and volunteers are regular
users of Intrenchment Creek Park. Many recreate in, reside near, as well as derive
aesthetic enjoyment from the Park and the trees, vegetatiory wetlands, wildlands,
and volunteers have a legal right under the deed for the Park to enforce the protection
and use of Intrenchment Creek Park as a public park. SRWA and its members,
supporters and volunteers are adversely impacted, harmed and injured by the Counfy's
decision to swap the Park - land held by the County for use and benefit of the pubic -
to a private entity. SRWA and its members have been denied legaIly protected
property rights and interests as a result of the County's actions and land exchange.
SRWA and its members have been denied due process rights under the Georgia and
other partners on land use planning and advocacy for low-impact, sustainable,
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conununity engagement and raise awareness to protect significant greenspace in the
South River watershed and to advance the South River Forest/Park vision. SRFC has
orgarrrzed,many initiatives to researctu inform and engage the public in regards to the
land swap of Intrenchment Creek Park. SRFC has made numerous efforts to engage the
County and other involved parties on a plethora of issues related to the land exchange,
including, but not limited to, concerns over the loss of public park property, ecological
and environmental loss resulting from the land exchange and concerns regarding the
value of property being exchanged and the lack of enforceable commitments to ensure
7. Plaintiff SRFC has standing to bring this action in its own right and on behalf of
its supporters, members and volunteers. Many of SRFC's supporters, membets and
volunteers are regular users of Intrenchment Creek Park. Many use Intrenchment
Creek Park for hiking, walking, wildlife viewing, peace of mind, and other aesthetic
enjoyment. SRFC' supporters, members, and volunteers have legal right under the
deed for the Park to enforce the protection and use of Intrenchment Creek Park as a
public park. SRFC and its supporters, members, and volunteers are adversely
impacted, harmed and injured by the County's decision to swap the Park - land held by
the County for use and benefit of the pubic - to a private entity. SRFC and its
members, supporters and volunteers have been denied legally protected property rights
and interests as a result of the County's actions and land exchange. SRFC and its
members, supporters and volunteers have been denied due process rights under the
Georgia and U.S. Constitutions as a result of the County's actions and land exchange.
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8. Plaintiff Margaret S. Brady is an individual residing in DeKalb County, Georgia
and a Dekalb County taxpayer. Plaintiff Brady is a member, suPPorter and volunteer
of SRFC and SRWA. Plaintiff Brady uses and enjoys Intrenchment Creek Park on a
frequent and regular basis, including for recreational, observational, peace of mind, and
aesthetic purposes, among others. Plaintiff Brady is a member of the public for whom
Intrenchment Creek Park was set aside and held to benefit. Plaintiff Brady has an
interest in and right to enforce deed restrictions requiring the Park to be held as public
park for the benefit of the public. Plaintiff Brady represents the public's common
impacted, harmed and injured by the County's decision to swap the Park - land held by
the County for use and benefit of the public - to a private entity. Plaintiff has standing
as a private person seeking to enforce the public use and benefit of Intrenchment Creek
SRFC and SRWA. Plaintiff Doyle uses and enjoys Intrenchment Creek Park on a
frequent and regular basis, including for hiking, walking, exercise and other
recreational purposes, as well as, obsetvational, peace of mind, and aesthetic purposes,
among others. Plaintiff Doyle contributes to and participates in the upkeep and
maintenance of the Park. Plainti{f Doyle is a member of the public for whom
Intrenchment Creek Park was set aside and held to benefit. Plaintiff Doyle has an
interest in and right to enforce deed restrictions requiring the Park to be held as a public
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park for the benefit of the public. Plaintiff Doyle represents the public's common
impacted, harmed and injured by the County's decision to swap the Park - land held by
the County for use and benefit of the public - to a private entity. Plaintiff has standing
as a private person seeking to enforce the public use and benefit of Intrenchment Creek
10. Ptaintiff Joel Finegold is an individual residing in DeKalb County, Georiga and a
SRFC and SRWA. Plaintiff Finegold uses and enjoys Intrenchment Creek Park on a
frequent and regular basis, including for walking, exercise and other recreational
purposes, as well as, observational, peace of mind, and aesthetic purposes, among
others. Plaintiff Finegold is a member of the public for whom Intrenchment Creek Park
was set aside and held to benefit. Plaintiff Finegold has an interest in and right to
enforce deed restuictions requiring the Park to be held as a public park for the benefit of
the public. Plaintiff Finegold represents the public's common interest and enjoyment
injured by the County's decision to swap the Park - land held by the County for use
and benefit of the public - to a private entity. Plaintiff has standing as a private Person
seeking to enforce the public use and benefit of Intrenchment Creek Park. See
L1. Plaintiff ]oseph S. Peery is an individual residing in DeKalb County, Georgia and
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SRFC and SRWA. Plaintiff Peery uses and enjoys Intrenchment Creek Park on a
frequent and regular basis, including for hiking, mountain biking, and other
recreational purposes, as well as, observational, peace of mind, and aesthetic purposes,
among others. Plaintiff Peery leads tours of Intrenchment Creek Park. Plaintiff Peery
is a member of the public for whom Intrenchment Creek Park was set aside and held to
benefit. Plaintiff Peery has an interest in and right to en-force deed restrictions requiring
the Park to be held as a public park for the benefit of the public. Plaintiff Peery
represents the public's common interest and enjoyment of Intrenchment Creek Park.
Plaintiff Peery is adversely impacted, harmed and injured by the County's decision to
swap the Park - land held by the County for use and benefit of the public - to a private
entity. Plaintiff has standing as a private person seeking to enforce the public use and
12.Plaiftrtfs John and Jane Does are members of the public who use Intrenchment
Creek Park and/ or are taxpayers and citizens of DeKalb County for whom
Intrenchment Creek Park is held in public trust for the use and benefit of the public and
whose rights and interests have been invaded, violated and deprived as a result of
DeKalb County's actions and the land exchange forming the basis of this actions.
13. Plaintiffs are users of Intrenchment Creek Park and members of the public for
whom the public trust and Intrenchment Creek Park property deed requirements are
intended to benefit. In additioru Plaintiffs are among a class for whom the dedication
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14. Plaintiffs' injuries include the loss of protected public property rights, the loss qf
park land dedicated and held for the benefit and use of the public, loss qf public green
space, loss of access to public park land, services, resources and amenities,loss of
management feafures, disrupted access to public park land, damage to remaining park
lands due to separation of connected and established natural systems and habitats,
damage to the aesthetic enjoyment, piece of mind, and overall park experience.
Moreover, Plaintiffs have been denied legally protected property rights and interests as
a result of the County's actions and land exchange. Among other constitutionally
protected rights, Plaintiffs have been denied due process rights under the Georgia and
15. This Court has jurisdiction pursuant to the Georgia Constitution of !983, Article
l-6. Venue is proper because the subject real property is located in DeKalb County
and actions giving rise to this matter occurred andf or are occurring in DeKalb County.
FACTUAL BACKGROUND
more or less, public park is located in south DeKalb County, inside Atlanta's I-285,
along the banks of Intrenchment Creek. Intrenchment Creek Park is bound, generally,
by the centerline of Intrenchment Creek on the west, Bouldercrest Road to the east, and
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Constitution Road to the south. The Park also connects with Constitution Lakes and
L8. The Park boasts a thick tree canopy, beautilul forest trails and abundant wildlife.
The tree canopy, wetlands, and floodplain work together to protect the South River's
largest urban tributary, Intrenchment Creek, while providing critical storm water
management for the area. In addition to the lush natural feafures, the Park serves as an
19. Intrenchment Creek Park was establishedinf around 2003 with the support of
the Trust for Public Land ('TPL") and the Arthur Blank Family Foundation ("Blank
Foundation"), with the understanding that the property would be held as a public park
20. The County, in working to secure the acquisition and permanent protection of
the property, remarked on its importance stating: "[t]he South River is one of the most
significant natural features in DeKalb County and [the acquisition] will provide
21..TheCounty further noted that the acquisition and establishment of the Park "will
more successfully prevent further deterioration of the watershed and protect the
Park, the County stated that the Park "will provide premiere educational and
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recreational opporfunities and, at the same time, insure that development does not
23. Moreover, the County, remarking on the importance of the acquisition and
establishment of the Park, clearly expressed its intent that the Park would be
permanently protected for the public use and benefit. In its April 1,2021etter to the
[Intrenchment Creek Park] along the South River and its tributaries."
threatened by the County's actions to exchange portions of the Park with Blackhall
Studios, a private entity in contravention of law and requirements set forth in the deed
25. On or about January 15,2003, the Trust for Public Land ('TPL") conveyed and
dedicated Intrenchment Creek Park, being approximately. !36 acres, more or less, to
DeKalb County as a park for the benefit and use of the public.
recorded on January 22,2003, at Deed Book 1.4082, page 22, DeKalb County, records. A
true and correct copy of that deed is attached as Exhibit A (the "ParkDeed")'
follows:
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This Property is conveyed subject to the covenant and use restriction that
it shatl be used in perpetuity as park property ("Park Property
RestrictiorU" as hereinbelow defined), which for purposes hereof, shall
include, but shall not be limited to, the uses permitted of "greenspace" as
provided by the terms of the Georgia Greenspace Act, O.C.G.A. 536-22-'l''
it ttq.,. Forpurposes hereof, the "Park Property Restriction" to which the
Property is hereby subjected shall be an exPansive term, and is defined to
include, without limitation, the use of the Property solely for one or more
of the following par uses, as appropriate given site conditions, the location
of the Property, and other attributes considered in sound park planning
practice: (1) passive recreation, such as walking, hiking, bicycling,
irorseback riding, picnicking, andf ot " dog parks" and the like, and (2)
active recreation, such as ball fields, tennis courts, basketball courts,
playgrounds, swimming pools (indoor or outdoor), gymnasiums andf or
ii*ilut recreational facilities (and associated auxiliary improvements) and
activities for the use and benefit of the park-going public. No other uses
or buildings (commercial, industrial, residential or municipal (i.e. Fire
stations, police stations,libraries)), shall be permitted on the Property.
The foregoing Park Property Restriction and covenant is imposed with
the consent and acquiescence of the GRANTEE, and is imposed in favor
of and for the benefit of the Property so held by the GRANTEE for the
use of the public, and thus is intended to be and shall be perpetual in
accordance with the provisions of o.c.G.A. (s) 44-5-60(.). ... Both (i)
Arthur M. Blank Foundation, in consideration of its grant awarded
towards the purchase of the Property for a public park, as well as (ii\ any
member of the general pubtic utho utilizes the Property, shall have the
right to take any action necessary at law or in equity to enforce the Park
Property Restriction contained herein.
(emphasis supplied).
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28. The Park Deed specifically grants to the Blank Family Foundation AND any
member of the general pubtic utho utilizes the Park the legal right and authority to
29.8y way of conveyance of the Park Deed, the County accepted conveyance of the
land and the dedication of Intrenchment Creek Park as a public park for the use and
31. The citizens of DeKalb County and the State of Georgia have not abandoned
Intrenchment Creek Park as a public park nor authorized the abandonment of the Park.
32. Apparently, in2007,the County conveyed approximately 8.9 acres, more ot less,
of the Park to a private entity - TND City Crest, LLC - in exchange for 20.8 acres/ more
dated November 27,2007 and recorded on December 3'J.,2007, at Deed Book 20536,
33. The 2007 LandExchange Deed failed to include the Park Property Restriction
34. The County did not hold a referendum on the2007 Land Exchange.
35. Likewise, the County did not engage the TPL, the Blank Foundation or the public
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36. Notably, it appears that neither TPL nor the Blank Foundation learned about the
2007 LandExchange until approached by the County in the context of the proposed
Land Exchange, the Blank Foundation stated as follows: "... due diligence discovered
that the County no longer owns nearly nine acres of [Intrenchment Creek Purk]... The
original nine acres remains undeveloped and to our knowledge has not excluded public
access, so it appears to remain in compliance with the deed restriction. \Mhoever owrls
the land, publicly or privately, is required by the deed restriction to make the property
available for park use. Please note: This transfer took place without informing the
Blank Eounilation, the Trust for Public Land, or others inaokteil in the ortginal
Seeqebraary 2019 Blank Foundation Letter, a true and correct copy of which is attached
hereto as Exhibit B.
38. Upon information and belief, the portion of properfy involved in tlne2007 Land
Exchange is still being utilized as public park property and the public retains all rights,
privileges and benefits under the original conveyance of the land to the County as a
public park.
39. In 2018,the County was approached and courted by Blackhall Studios, a private
entity, with a proposal to swap approximately 55.6 acres of Intrenchment Creek Park in
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exchange for three separate tracts of land - approximately 55.6 acres, more or less,
40. The land exchange was conceived by Blackhall studios and was not the result of
41. The proposed land exchange enables Blackhall studios to expand its film and
production facilities in a contiguous manner with existing facilities, while stripping the
public of valuable park land and tegally protected rights, benefits and privileges to the
Creek Park has largely been disturbed and denuded of vegetation while the land being
43. With regard to the proposed land exchange, the Blank Foundation, who along
with the public has a right to enforce the Park Property Restriction, informed the
County, in February 2019,that any exchange must meet the following conditions,
among others:
o " Any land transaction must result in a net increase in public greenspace for
acquisition of up to 1.5 acres of new parkland for each acre transferred by the
o " Any land transaction must result in the County receiving land that clearly is
more value than land that is being transferred. ... We require at least a10%
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o DeKalb County must host community meetings to present the details of the
supplied). A true and correct copy of the February 2019 Blank Foundation
44. Upon information and belief, TPL also informed the County of certain conditions
that must be met along the lines of those articulated by the Blank Foundatiory
specifically including the need for robust public engagement and involvement'
45. The County held one purported "public meeting" on the Blackhall Land
46. Instead, the land exchange has been driven in large part, rt not exclusively,by
of the exchange.
4T.Publicinformation regarding the land exchange, including, but not limited to,
details surrounding the actual value of land lost and gained in the exchange, the
ecological value lost and gained, communications with Blackhall and others related to
improvements, has largely, if not exclusively, been withheld from the public.
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48. Purported public meetings have been designed not in the interest of the public
good and not with the intent to engage and weigh the support of the public, but with an
49. The nature of the Blackhall Land Exchange changed significantly since the
50. The County has failed to provide meaningful information to the public on the
Blackhall Land Exchange and has failed to engage in meaningful public dialogue and
(BOC) voted to "authorize the exchange of approximately 40.00 acres of land in the
County's Intrenchment Creek Park for approximately 529 actes of adjacent property
$L,500,000.00."
52.Inrendering this d.ecisiory the BOC did not put the matter to a public
referendum.
53. The decision by the BOC fails to provide any meaningful information about
protections aJforded the public in the land exchange, including whether the exchange
will protect in perpetuity the acquired land for dedicatiory benefit and use as a public
park and the nature of any purported "donations" and "improvements" by Blackhall
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54. The public is not privy to any property appraisals performed by the County
and.f or Blackhall Studios regarding the land subject to the proposed land exchange and
55. The public is not privy to any information regarding the purported $1,500,000.00
improvements and whether there are any legaIly enforceable assurances, commitments,
obligations or the like in place to ensure the improvements are actually made and upon
what timeframe.
56. Upon information and belief, the land offered by Blackhall in the exchange is less
valuable than portions of Intrenchment Creek Park that the public would lose.
52. Upon information and belief, the Blackhall Land Exchange does result in the
58. The Blackhall Land Exchange also results in the County receiving land of
GENERAL ALLEGATIONS
59. On or about ]anuary 15,2003, TPL dedicated Intrenchment Creek Park as a park
for the benefit and use of the public by conveying it to DeKalb County in accordance
60. Since its establishment, Plaintiffs along with the citizens of DeKalb County and
the State of Georgia have continuously used Intrenchment Creek Park as a public park,
61. The citizens of DeKalb County and the State of Georgia, including Plaintiffs,
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62.Thecitizens of DeKalb County and the State of Georgia, including Plaintiffs,
have not been given the opportunity to vote on the exchange of public land.
63. Ptaintiffs are interested in the continued public use and benefit of Intrenchment
Creek Park.
64. Upon information and belief, Blackhall Studios intends to develop the portion of
Intrenchment Creek Park it seeks for the expansion of its film and production studies.
65. DeKalb County failed to provide meaningful public engagement on the land
exchange.
66. DeKalb County deprived Plaintiffs and the public of critical information needed
to evaluate and consider the land exchange and ensure meaningful public participation
in the process.
67.DeKalb County refused to release information and records related to the land
68. It is presently unknornm whether and how the alleged value of Intrenchment
Creek Park was appraised by the County and Blackhall Studios based on its use as a
69.Itis presently unknown whether and how the alleged value of the land exchange
DeKalb County reviewed and approved the valuation of the land exchange.
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71,.Il"is presently unknown whether DeKalb County complied with all valuation
land exchange.
equal to or greater value than the property or interest being exchanged in the Land
73. Likewise, upon information and belief, DeKalb County is not receiving property
of equal or greater ecological value than the property being exchanged in the Land
TL.Uponinformation and belief, DeKalb County does not have sufficient funds to
conduct the necessary improvements arising from the Land Exchange and the
"promises" made to the public in association with the Land Exchange for the benefit of
75. Upon information and belief, DeKalb County has improperly leveraged funds
that are dedicated to other park purposes in support of its "promises" associated with
T6.IJponinformation and belief, DeKalb County has not obtained necessary and
Exchange.
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TT.IJponinformation and belief, DeKalb County has not obtained an appraisal or
78. Upon information and belief, there is no legally cognizable right or interest
afforded the public to protect the public and public park lands if and when Blackhall
79.DeKalb County has already exhibited a pattern and practice of disregard for the
rights and benefits afforded the public as it relates to Intrenchment Creek Park.
80. DeKalb County has already exhibited a pattern and practice of over-promising
81. As a result of the County's actions and the land excharrge, Plaintiffs and the
public have been denied legally protected properfy rights and interests, including as
named and third-parry beneficiaries of the Park Property Restriction in the Park Deed
and as beneficiaries of the public trust under which Intrenchment Creek Park is held.
82. Among other constitutionally protected rights of Plaintiffs (and the public) that
have been violated, Plaintiffs and the public have been denied due process rights under
the Georgia and U.S. Constitutions as a result of the County's actions and land
exchange.
83. Plaintiffs repeat and reallege the allegations of. paragraphs L through 83 above as
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84. Plaintiffs are in a position of uncertainty regarding their continued public use
and benefit of Intrenchment Creek Park because of actions threatened and/or taken by
DeKalb County.
85. The conveyance and transfer of Intrenchment Creek Park to DeKalb County
included a specific requirement, referred to in the Park Deed as the Park Property
Restrictioru that Intrenchment Creek Parkbe used in perpetuity as park property for the
benefit and use of the public; whereby, the public was a named and third-parry beneficiary
and whereby DeKalb County dedicated and agreed to hold and maintain Intrenchment
Creek Park for the benefit and use of the public, including Plaintiffs.
86. The conveyance and transfer of Intrenchment Creek Park to DeKalb County as a
public park and the public use of Intrenchment Creek Park imposed a public trust upon
Intrenchment Creek Park; whereby, DeKalb County serves as trustee of that public trust
for the benefit of the citizens of DeKalb County and the State of Georgia, including
Plaintiffs.
public park may not be alienated or abandoned without consent of the citizens of
DeKalb County and the State of Georgia, as beneficiaries of the public trust.
88. Intrenchment Creek Park has not been alienated or abandoned as a public park
and has continuously been held and used as a public park for the benefit and use of the
Intrenchment Creek Park to Blackhall Studios is ultra vires, and thereby, void.
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90. Pursuant to O.C.G.A. S 9-4-'J, et seq.,Plaintiffs request that this Court declare that
Intrenchment Creek Park to Blackhall studios is ultra vires, (Iii) the transfer or
exchange, to the extent it has already occurred, is void, (iv) DeKalb County cannot
Creek Park for the development and expansion of Blackhall Studio's film and
County.
91. In additioru Plaintiffs request that this Court declare that DeKalb County is
obligated to hold and maintain Intrenchment Creek Park for the public's use and
benefit in accordance with the Park Deed and the public trust.
92. Plaintiffs repeat and reallege the allegations of. paragraphs 1 through 92 above
93. Plaintiffs are in a position of uncertainty regarding their continued public use
and benefit of Intrenchment Creek Park because of actions threatened andf or taken by
DeKalb County.
public park and the public use of Intrenchment Creek Park imposed a public trust upon
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Intrenchment Creek Park; whereby, DeKalb County serves as trustee of that public trust
for the benefit of the citizens of DeKalb County and the State of Georgia.
95. Even if DeKalb County is able to exchange portions of Intrenchment Creek Park,
which Plaintiffs dispute can occur without a referendum authoizingthe same, the
Land Exchange with Blackhall fails to satisfy the requirements imposed on the County
which impose certain procedural and public notification and participation requirements
and mandate an exchange of county property must return for the county value that is of
equal to or greater than value of the property transferred to the other entity.
97.Likewise, upon information and belief, DeKalb County has not complied with
98. Pursuant to O.C.G.A.S9-4-1, et seq., Plaintiffs request that this Court declare
Studios and land exchange, to the extent it has already occurred, violates the
99. Pursuant to O.C.G .A. S 9-4-1, et seq., Plaintiffs request that this Court declare that
Studios and land exchange, to the extent it has already occurred, violates other
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requirements imposed on DeKalb County related to the transfer, conveyance andf or
exchange of property.
101. Plaintiffs bring a question of public right and seek to procure the
Intrenchment Creek Par as a park for the public's benefit and use.
102. DeKalb County has taken andf or caused andf or plans to take andf or
cause wrongful acts that violated or violate its public and fiduciary duty to faithfully
hold and maintain Intrenchment Creek Park as aparkfor the public's benefit and use
including be: (i) transferring a portion of Intrenchment Creek Park to a private entity by
way of the2007 Land Exchange, (ii) acquiesced to and approved a land exchange with
acres of land in the County's Intrenchment Creek Park for approximately 52.9 acres of
adjacent property owned by Bouldercrest 70,LLC and Blackhall Real Estate Phase II,
LLC, affiliates of Blackhalt Studios (collectively "BlackhaIl"); and accept the donation of
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approximately $1,500,000.00" demonstrates its intent to breach its fiduciary duty to
maintain Intrenchment Creek Park as a park for the public's use and benefit.
land exchange with Blackhall studios has demonstrated its intent to breach its fiduciary
duty to maintain Intrenchment Creek Park as a park for the public's use and benefit.
106. Pursuant to O.C.G.A . g 9-6-20 et seq., Plaintiffs request the Court to order
the Clerk to issue a writ of mandamus directing DeKalb County to hold and maintain
Intrenchment Creek Park as a park for the public's use and benefit.
108. Plaintiffs bring a question of public right and seek to enjoin DeKalb
County andf or Blackhall Studios andf or any other private parq from using
Intrenchment Creek Park for any purpose other than a park for the benefit and use of
the public.
acres of land in the County's Intrenchment Creek Park for approximately 52.9 acres of
adjacent property owned by Bouldercrest 70,LLC and Blackhall Real Estate Phase II,
LLC, affiliates of Blackhall studios (collectively "Blackhall"); and accept the donation of
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approximately $1,500,000.00" demonstrates its intent to breach its fiduciary duty to
maintain Intrenchment Creek Park as a park for the public's use and benefit.
exchange with Blackhall studios has demonstrated its intent to breach its fiduciary duty
to maintain Intrenchment Creek Park as a park for the public's use and benefit.
violation of the public trust as well as the Park Property Restriction in the Park Deed.
exchange of county property must refurn for the county value that is of equal to or
113. Upon information and belief, the land exchange with Blackhall Studios is
not an exchange of equal or greater value and represents a substantial financial loss to
11.4. DeKalb County's actions violate Georgia law and the public trust of
115. Pursuant to O.C.G.A. S 9-5-1 et seq., Plaintiffs request the Court to issue an
Creek Park with Blackhall Studios and/ any other private entity and (ii) allowing the
development of any portions of Intrenchment Creek Park by a private entity {or any
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WHEREFORE, Plaintiffs request that this Court:
portions of Intrenchment Creek Park to Blackhall Studios is ultra vires, (ii) any
ultra vires, (Iii) the transfer or conveyance of portions of Intrenchment Creek Park to
Blackhall studios and land exchange, to the extent it has already eccurred, is void, (iv)
DeKalb County cannot alienate or abandon Intrenchment Creek Park, including any
portion of Intrenchment Creek Park for the development and expansion of Blackhall
Studio's film and production studios, without the approval by referendum of the
Intrenchment Creek Park to Blackhall Studios via the land exchange violates
exchange between DeKalb County and Blackhall Studios, (ii) DeKalb Counfy andf or
Blackhall studios from entering into a land swap /Iand exchange involving any portions
Intrenchment Creek Park, or any portions of it under the land exchange, for any reason
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This 12e day of February
Sturm
Weissman PC
One Alliance Center,4ft Floor
3500 Lenox Road
Atlanta, Georgia 30326
Office: 404.926.4600
Direct 404926.4630
[email protected]
-
Att o rn ey f o r P aintiff s
I
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VERIFICATION
administer oaths. Allen P. Doyle who being swom, deposes and states that the facts
contained in the foregoing COMPLAINT are true and correc! to the best of her personal
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VERIFICATION
personally appeared before the undersigned officer, duly authorrzedto
ad.minister oaths, foseph S. Peery who being swom, deposes and states that the facts
contained in the foregoing COMPLAINT are true and correct to the best of her perso:ral
knowledge.
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This *tg*-flay of February, 20n,
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SWORN to before me this f 0 day of Febtuary,2}Z7
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IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
Plaintiffs,
Defendants
VERIFIED COMPLAINT
Exhibit A (the "ParkDeed")
Dred Sook lr+@BE Pq ee
Filed end Recorded Jan-32-?003 03:0bpr
[email protected]
Real Estate Transfer Tsx 10.90
MMCarta
{- Linda carter
Clsrk of Suoprior Count Dehalb Ctv, 6a.
lillrtlrItrHIn[ililHInIEunIHl
COUNTY OF FULTON
FOR PUBLIC LAND, a nonprofit Califonria public benelit corpotalion d/b/a Tbe 'l'rust for
Public Land (Inc,) having a place of business in Atlanta, Georgia (hereinafier refsrred to as
"GRANTOR'), and DEKALB COUNTY, a political subdivisiol of tlre State of Georgia, having
an address of The Manuel J. Maloof Ccnter, 1300 Conrmerce Drivq 6th Floor, Decatur, Georgia,
IYIINES9ETE:
THA'[ GRANTOR, for and in consideration of this sum of TEN AND NO/100
DOLLARS (510.00) and othcr good and valuable consideration, in hand paid at and beforc the
sealing and delivery of thesc prosents, tl,e receipt and sufficiency of which are hereby
aoknowledged, has granted, bargained, sold, aliened, conveyed and cotrfirmed, and by these
presents does grani, bargain, sell, alicn, oonvey and conhrm unto the said GRANTEE, all that
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Deed Eooh t 4?tB3 Pq es
lilttHt trlll] I [[$t$fi ll][ flf, Ht til
tract or parcel of land lying and bcing in Laud Lots 82 an<t 83 of the l5rl'District of DeKatb
Counln Ceorgia coritaiu.ing 13.5.98 acres, more or less, and being moreparticularly described iu
Exhibit "A" attached hereto and by this referencc made a part hereof(hereinafter rcfemed to as
thc "Propelty").
TO IIAVE AND TO HOLD, lhc said tract or parcel of land, rvith all and singular thc
rights. mcmbers and appurtenances thercof, to the samc being, belonging, or in anywisc
aplreltaining, to the only propcl use, bencfit and behoof of 1he said GRANTEE f<rrevcr in ]"cc
Simple; subject to the matters (hereafter refened to as "Pennitted Exceptions") sct f<lllh on
AND, F'URTHERMORE, this Propcrty is conveyed sutrject to thc covcttant ancl use
restriction that it shalt be used in perpetuity as park property ("Park Property Ilestricliorr," as
lrereinbelorv defined), which for purposes hcreof , shall includc, hut shall not be limitei n, lltc
uses pennitled of"greenspace" as ptovided by the lemls ofthe Gcorgia Grcetrspacc Acl,
O.C.G,A. $ 36-22-1, at se.q. For purposes hereof, the "Park Property Restriction" to which thc
Property is hereby subjected shall be an expansive term, and is defincd to irrolude, rvithout
limitation, the use of the Property solely fot one or more of tlte following park uses, as
appropriate given site conditions, the location oflhe Property, and othcr attributes considered in
sound park planning practice: (l ) passive recreation, such as walking, hiking, bicyoling,
horsebaok riding, picnicking, and /or "dog parks" and the like, and (2) activc recreation, such as
ball fields, teunis courls, basketball courts, playgrounds, swimming pools (indoor or outdoor),
gynrrasiunrs an#or similar recreational facilitios (and associated auxiliary improvements) and
activitics for lhe use and benefit ofthe park-going public. No other uses or buildings
(commercial, industrial, residential or municipal (ie. Fire stations, police stations, libraries),
shall bc perrnitted on thc Property, Thc foregoing Park Property Restriction and covenant is
2
Deed Book 14@BE Fq ?4
llBHl|ill nttil[f [il illtHtntuil
imposcd witlr thc consent and acquiescencc olthe GRANTEE, and is inlposed in favor of antl lor
thc benefit of tho Property so held by the CRANTEE lor lhe use olthe public, and thus is
intended to be and shall be perpelual in accotdance with the provisions of O.C'G.A. 4a-5-60 (c).
Notwithstanding anything to thc contrary contained in the forgoing, municipal uses or buildings
(ic. Fire stations, policc stations, libraries), lnay be pcmtilted on a portion oflhe Propcrty that
docs not excccd 6,8 acrcs provided CRANTI]n first obtains tle consent anrl approval of thc
Arthur. M, Blank Fatnily Foundation, in considelation ol its grant awarded torvards thc purchase
olthe Property for a public park, which such consent shall not be urueasonably withhcld,
conditioncd or dclayed. Both (i) the Arthur M. Blank Fanily Foundatiorr, in corisideratiou of its
grant awardcd towards thc purohase ofthe Prope(y for a public park, as rvell as (ii) any nlentber
ofthe gcneral public who utilizes the Property, shall have lhe right to take any aclion necessary at
AND THE SAID CRANTOR, subject to the Pennitted Exceptions and thc Park Property
Restriction, will warrant and forever defend the right aur! title to the Property unto the said
GRANTEE against tho claims of all persons owning, holding or clairning by, through and uuder
theCRANTOR.
AND THE SAID GRANTEE, by its acceptancc of this corveyance, lhe consideration for
which is funded in part with private foundation grant proceeds, dedicates tho Property to the Park
Property Restriction in perpetuity for the berrefit ofthc public pursuant to O.C.G.A $ -5-60(c).
GRANTEE further covenants to provide public access to thc Proporty, consistent with sound
park planning ard nranagement practicos. The Park Property Restriction shall ruu with the
Property in perpetuity, exclusively lor the purposes identified hcrein, for tha benefit of DeKalb
3
Deed Bool 14@ete Pg e5
r{IHHnUf$]fi[Sll $ ll][sil$ilil
lN WITNnSS WHEREOF, thc GRANTOR and GRANTEE havc sigrted and scaled this
Limited Warranty Deed, as of the day and year first above writton.
GRANTOR:
Signctl, scaled and doliv*ecl th i"M
day ofJanuary, 2003, in the presencc of: THE TRUST FOR }UBI,IC I,AND,
a Califorrria public benefit corporation
rJlblaThe Public Land (lnc.)
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of January, 2003, ln tle prese'qcc o* DEI(AI,3COULIY;
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5
IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
Plaintiffs,
Defendants
VERIFIED COMPLAINT
Exhibit B -
February 12,2019 Letter from Blank Foundation
to Mr. Zachary Williams, COO, DeKalb County
UUU' Oltice
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Date Reseived
Tnn A*vNuit &,1. Slanx Faruatlv Ft:l'l*
February 12,2019
I am writing in response to your November 27,2018, letter requesting the endorsement of The
Arthur M. Blank Family Foundation for a proposed land swap that has been offered by Blackhall
Studios involving land acquired by the County in 2002 with funds provided by the Blank
Foundation.
Our initial due diligence in assessing the proposed swap was to review the commitments made
by the County and the Blank Foundation in 20012. The attached letter documents DeKalb
County's intention to build a regional athletics complex on the site, with some passive
greenspace on the land near lntrenchment Creek. Our expectation is that any land transaction
involving the property will result '1n parkland that is consistent with the original intent of the Blank
Foundation's lnvestrnent, and we believe that the proposed:transaction meets this criterlon., We
do note that while the park now hosts a multiuse trail, trailhead and model plane airfield, most of
the promised investrnent in amenities remains unfulfilled'
Further due diligence discover:ed that the County no longer owns nearly nine acres of the
property acquired 'in 20102. We subsequently learned that the acreage was swapped ln 2007 for
sligfrtly-more than 20 acres of nearby land to facilitate the construction of the multi-use
lntrenchment Creek Trail currently running through the property. The original nine acres
remains undeveloped and to our knowledge has not excluded public access, so it appears to
remain in compliance with the deed restr:iction. Whoever owns the lahd, publicly or privately, is
required by the deed restriction to make the property available for park use. Please note: This
transfer took place without inforrning the Blank Foundation, The Trust for Public l-and or others
involved in the original transaction, which reflects poor,ly on the County's stewardship.
We also requested that The Trust for Publie Land, an original partner in the acquisition of this
land, review the proposed transaction from the perspective of providing recreational amenities
to the community. The Trust for Public Land concluded that the proposed transaction would
increase recreational opportunities on site, create a more cohesive public space, increase
residential access to the park (see attached GIS analysis) and more clearly delineate
residential, park and industrial uses in the impacted area - with the park serving as a buffer
between residential and industrial uses.
Since receiving your November 27 letter, several citizens and park users have reached out to
the Foundation to express theirconcern aboutthe potential ecological impact of the proposed
land transaction and subsequent development. The Nature Conservancy, which has been
active in this community, has requested an ecological assessmentto comparethevalue of the
two sites in regard to trees, water and habitat. We believe that there is merit in this exercise.
Given the above, The Arthur M Blank Family Foundation is prepared to concur with the
proposed land swap under the terms outlined in your November 27 letter, contingent upon
additional commitments from the County and Blackhall Studios being accomplished before the
closing of any exchange.
a
Any land transaction must result in a net increase in public greenspace for DeKalb
County. The original pr,oposal called for an acre-for-acre swap. We would prefer a
transaction that would result in acquisition of up to 1.5 acres of new parkland for each
acre transferred by the County, but require a ratio of at least 1'1 to 1.
a
Any land transaction must result in the County receiving land that clearly is of more
value ihan land that is being transferred. Appraisals obtained by the County indicate
that the transaction as originally proposed with an acre for acre swap would result in the
County receiving land valued at 3o/o above the land that they would transfer. We require
at least a 10o/o difference h valuation to the benefit of the County.
DeKalb County must retroactively apply the acreage, valuation and ecological evaluation
requirements to the land transaction that took place in 2007. That transaction clearly
meets the 1.1 to 1 acreage requirement, and the land acquired is subject to the same
deed restrictions as the land acquired in 2002, However, the County must get
appraisals for the two parcels and conduct ecological evaluations. Should that
transaction not meet the valuation and ecological evaluation criteria, the County must
present a plan to remedy any discrepancy - and commit resources to the execution of
that plan - before the current proposed transaction may proceed.
a
DeKalb County must host community meetings to present the details of the proposed
land transaction and receive feedback from residents with the goal of ensuring that the
community has a complete understanding of the planned amenities, accessibility and
longterm maintenance Plan.
Page 13
The terms of the November Zl letler require that any existing recreational amenities
displaced by the proposed transaction be replaced. We further require that there be rn
diminishment h thevalue of the amenities promised by Blackhall as outlined h the
November Zl letler.
. As noted earlier, The Arthur M Blank Family Foundation invested h lntrenchment Creek
Part with the expectation that it would be developed for recreational purposes. \A,b
reiterate this expectation of investment by the County. We particularly stress the need
for.DeKalb County to adequately invest h the ongoing maintenance alrd care of the
park. The Gounty significantly decreased funding for park maintenance during the
recession of 2008, and that funding has not been fully restored, to the detriment of park
users and DeKalb County residents. To merit park investments included h the proposed
transaction, and to attract future private investments h ib parks, DeKalb County must
improve park maintenance. As a condition of the proposed swap, the Foundation
requests that the DeKalb Department of Recreation and Parks commit to developing a
park maintenance plan and submitting it b the County Commission for approval by
September 2019.
The Arthur M Blank Family Foundation and our fellow stakeholders appreciate the opportunity
b work with the County b ensure that any land transaction involving lntrenchment Creek Park
result h a definitive improvement h pakland and recreational opportunities h DeKalb County.
\lVfiile \,e encourage the County to continue to work for the best possible terms to the proposed
transaction, \ e are prepared b concur b7 execuiing necessary releases at the closing once the
commitments outlined above are met
$t
McPhe
President