Almost one month after a two-day trial filled with evidence exhibits, a decision has been reached in nudist Paradise Valley Resort Club’s lawsuit against Dawson County fire officials.
The stop-work orders against five forthcoming resort buildings are valid, and the building permits for those structures have expired, wrote Senior Superior Court Judge Richard Winegarden in a decision dated Feb. 14.
The judge denied the resort’s petition for writ of mandamus against Fire Marshal and Division Chief Jeff Bailey, Fire Chief and EMA Director Danny Thompson and Lt. Chris Archer of Fire Prevention to lift the stop-work orders. He also spoke to the validity of the building permits as part of his decision.
Attorney Angela Davis announced the decision during her report at the Board of Commissioners’ work session on Feb. 17. The outcome follows a civil trial that took place on Jan. 20-21 and drew over 100 spectators, mostly supporters of the resort, to the Dawson County courthouse.
“Without stating the name of the entity against whom the county was in this litigation [with], I just thought it’d be appropriate to commend the fire department,” Davis said. “It was a case in which the county was trying to uphold their fire code to ensure safe structures and life-safety protection measures for our citizens.”
She went on to characterize the legal victory as “hard-fought.”
“But for their dedication on those issues and their good testimony,” she said of Chiefs Bailey and Thompson, “I don't know that we would’ve been as successful as we were.” (Although all three defendants were deemed witnesses, only Jeff Bailey actually ended up testifying during trial).
On Feb. 18, DCN contacted resort owner Jeff Wasserman and received a reply from his lawyer, Joseph “Joey” Homans of Fox, Chandler, Homans, Hicks & McKinnon LLP.
“Mr. Wasserman and I continue to review the Judge’s ruling to determine what issues should be asserted on appeal to the appellate court,” Homans wrote.
DCN obtained a copy of the legal decision through Peach Court, a public e-filing and online document access portal for Georgia court cases.
If granted, the writ of mandamus would have lifted stop-work orders against forthcoming greeting room and welcome center additions, a wine bar, cabanas and an indoor pool and fitness center. Each structure received an order due to lack of stamped-and-sealed architectural plans, lack of life-safety plans and/or “unacceptable conditions on the property” leading to multiple violations of fire and life-safety codes.
The Feb. 14 decision cited sections of the Georgia State Minimum Fire Safety Standards with Modifications such as the necessity for stamped-and-sealed plans and for the fire marshal to review those plans at least a month before construction starts.
Jeff Wasserman testified that when the business had previously obtained construction permits, he sometimes presented rudimentary plans and other times did not.
After the stop-work orders were issued on Aug. 26, 2020 (and clarified that next week), resort manager Sarah Martin tried to find an architect who’d be willing to do retroactive plans for the buildings under the stop-work orders. She was unsuccessful in those efforts.
“The Court recalls no testimony that this requirement was ever met with regard to any of the five building permits at issue here,” the judge wrote in regards to the review of such plans.
The legal document also cited applicable fire code stating that it’s unlawful for construction to start on a covered building without the required plans being approved. Also stated was the requirement for two sets of construction plans, one to be kept by the county and one to be kept on site of forthcoming structures.
During his testimony, Fire Marshal Jeff Bailey explained that it was impossible to ensure the buildings were constructed with approved plans if there were no plans to consult at the time of inspection in August 2020. Therefore, all five aforementioned buildings failed, and stop-work orders were issued.
The resort’s lawyer, Joey Homans, relied on a “vested rights” position as a key part of his legal argument. (Homans is experienced in civil litigation and local government matters and previously served as Dawson County’s attorney).
In court, Homans argued that the resort had vested rights because of Paradise Valley’s reliance on the building permits and the resort’s expense of over $1.5 million thus far on construction.
The judge found the petitioner's citation of cases “Carson v. Brown” and “Union County v. CGP, Inc.” to be “helpful,” concluding that the county properly rejected the resort’s appeal of the orders.
The court used language from two other cases, “Matheson v. DeKalb County” and “Corey Outdoor Advertising Inc. v. Board of Zoning Adjustments”, to establish that even an improperly-issued building permit or substantial expenditure doesn’t raise sufficient concerns to vest any rights. Likewise, no vested rights would supersede the enforcement of the relevant stop-work orders.
Similarly, Judge Winegarden wrote that the petitioner argued that the stop-work orders tolled the running and the expiration date of the permits, without providing authority for this position. Likewise, the Court was not aware of reasoning to that effect.
The judge elaborated that generally when stop-work orders are issued, the problem at hand is typically corrected so a project can then be completed.
“To allow the expiration date of building permits to be tolled for months or even years when the property owner decides not to correct the deficiency which resulted in the stop work order, seems ill-advised,” the judge wrote. “Therefore, this Court determines that the building permits at issue in this case, if they ever were valid, have expired.”
He stated that the fire officials are under no duty to lift the stop-work orders and are actually exercising their discretion in not doing so, then reiterating that no sufficient construction plans have been provided.
“This Court asked counsel during the hearing if the Petitioner had a vested right to build an unsafe building. The uniform answer was ‘No,’” Judge Winegarden wrote. “If the Petitioner is allowed to resume construction without proper plans, an unsafe building may result. And if it does resume construction, what will be the result when it is time for the Fire Marshal's inspection and there are still no plans? Clearly, the Petitioner needs to get the appropriate plans and a new building permit if it wishes to proceed with the construction.”