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| OPINION PAGE - FEBRUARY 16, 2000 - DANIELSVILLE, GA |
Letter
The Madison County Journal
February 16, 2000
Time
to set record straight on BRSWCD vs. Stricklett
Dear editor:
On behalf of my client, Mark Stricklett, I wish to set the record
straight regarding the "facts" which the Broad River
Soil and Water Conservation District sought to publicize in recent
weeks. Space limitations of this forum will not permit a complete
discussion of the relevant legal theories, facts and, most importantly,
evidence. Anyone interested in learning the full story should
read the court's file, case no. 97-MV-392-B in the Superior Court
of Madison County.
The "facts" which Broad River sought to make known to
the public are nothing more than Broad River's contentions, which
were considered by Judge William Grant in the context of the Stricklett's
motion for summary judgment (which consisted of legal arguments,
affidavits and other documentary evidence stacking one inch high).
Judge Grant had the benefit (or the burden?) of hearing the full
story. He found that Broad River failed to produce sufficient
evidence to prove their contentions.
In one example, Judge Grant found that, "The Plaintiffs [Broad
River] assert that the home potentially interferes with their
ability to repair and maintain the dam. The Plaintiffs fail to
present a single example of how the home could cause this potential
interference."
In another example Judge Grant found that, "The Plantiffs
also argue that they are exposed to liability if the home ever
suffers flood damage.... Third, the Plaintiffs offer no law or
theory that would demonstrate that their liability concern is
legitimate."
In a third example, Judge Grant found that, "Instead, the
Plaintiff lists the possibility that the home could interfere
with the building of additional spillway capacity. First, the
Plaintiff does not show that there is any actual potential for
this happening. Second, the Plaintiffs do not show that Defendants
home prevents an increase in spillway capacity." The house
is not located within the emergency spillway, but Broad River
continues to repeat that clearly erroneous contention.
An expert's report by Mr. Francis Fiegle II, P.E., Program Manager
Safe Dams Program, Georgia D.N.R., presented by Broad River even
states, "I do not believe its [the home's] location nor the
driveway substantially changes how the dam operates."
Broad River contends that a portion of the dam was removed during
construction of the house, yet no evidence was ever produced to
support the contention. The Strickletts staunchly deny any alteration
to the topography of the dam after their purchase of the property.
Judge Grant concluded that, "The only evidence of record
before the Court demonstrates that the Defendants' home does not
substantially interfere with Plaintiffs' use and enjoyment of
the easement."
Having failed to prove their case in a court of law and equity,
Broad River now seeks to make its case in the court of public
opinion. Broad River is publicizing unsubstantiated contentions,
already rejected by the court, as if those contentions were incontrovertible
facts. Presumably, Broad River expects that the public will never
learn the whole story.
What purpose does this public expression by Broad River accomplish?
Perhaps it serves only to avoid political responsibility for their
past choices and actions in this matter. Perhaps, instead, Broad
River is trying to avoid responsibility for the future consequences
of many past decades of neglect of this dam (see the annual inspection
reports) by making the suggestion that any future failure will
result from the mere presence of the Stricklett's house, rather
than Broad River's failure to maintain the dam. Regardless of
the intent, the result amounts to nothing more than unfounded
harassment and defamation of the Strickletts.
As to Broad River's appeal of the summary judgment, it has been
reported that the State Soil and Water Conservation Commission,
which oversees the various local districts, has withdrawn its
support of that appeal. Broad River stands alone in its desire
to seek appellate review.
Finally, Broad River fails to mention that Judge Grant also found
that the legal doctrines of laches and equitable estoppel barred
Broad River's claim against the Strickletts. Broad River, when
asked by Mark Stricklett what effect their easement had on his
right to build a house, could not, or would not, say. No plat
illustrating the contours of the flood easement was ever produced.
A "map" referred to in the written easement was improperly
recorded and could not be found until well into litigation. Most
importantly, when Broad River's agents saw firsthand the beginning
of construction, they became concerned about the location. Broad
River nevertheless waited three months before mentioning that
concern to Mr. Stricklett, during which time the house was completed
at substantial cost.
I will conclude by offering two questions to ponder: When individuals
wield the power of the state, and bring the inexhaustible resources
of the state to bear against another individual, what responsibility
do they have to exercise logic, reason and sound judgment? How
are such individuals held accountable when they fail in that responsibility?
Sincerely,
Kerry S. Doolittle
Attorney at Law
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