Builder, lawyer threaten federal lawsuit next
By RICK LAVENDER | The Times
The owner of an industrialized home snared in a standoff with
the city of Gainesville says his next option may be a federal
lawsuit.
Grant Smereczynsky commented Tuesday afternoon following a
City Council meeting that morning in which members denied
4-0 a rezoning request that would allow Smereczynsky to finish
and sell the home in Waters Edge subdivision.
"We as a company made a decision we're going to go the
distance with this," said Smereczynsky, referring to
the Gainesville company he co-owns, Building Systems Network.
The dispute centers on city code that bars industrialized
homes, which are built in factories and assembled at the lot,
from residential-1 zones, the common category for single-family
home subdivisions. The city pulled Smereczynsky's permits
in March 2005 for the incomplete house on Waters Edge Drive,
off McEver Road, and another planned on a nearby lot.
The company sued in Superior Court but lost. An appeal is
pending with the state Court of Appeals.
Neighbors have opposed the home, voicing concerns that it
will undercut property values. They called Smereczynsky's
application for a favorable residential-2 zoning change "spot
zoning."
Councilwoman Myrtle Figueras' motion to deny trailed an exchange
between City Attorney James "Bubba" Palmour III
and George Butler II of Dahlonega, who represents Smereczynsky.
Figueras said Tuesday afternoon she believes the city is right,
"and we'll let the courts decide."
"In my heart," she said, "I don't see where
we should change it to R-2."
The Gainesville Planning and Appeals Board, an advisory board
to council on zonings and annexations, had agreed 4-2 on April
11.
In a 14-page handout Tuesday, Butler argued that prohibiting
industrialized homes because they are not built on-site counters
state law.
He stressed that any federal lawsuit will center on what he
sees as violations of the U.S. Constitution's interstate commerce
clause and the Sherman Antitrust Act. The latter, Butler wrote,
allows triple damages for "unreasonable restraints of
interstate commerce."
Smereczynsky said his losses have reached about $200,000,
and the owner of the second home, which wasn't assembled,
has gone bankrupt. Butler listed the value of the partially
finished house at $375,000.
Smereczynsky has asked the National Association of
Home Builders for legal aid.
"Basically," he said, "we're fairly confident
that the federal courts are going to force the city into abiding
with the constitutional and state laws."
But Smereczynsky also said he may appeal council's decision,
saying he is open to options other than another lawsuit.
Contact: rlavender@gainesvilletimes.com,
(770) 718-3411
Originally published Wednesday, May 17, 2006
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