Threat Of Suit Says County Failed To Build Reservoir, Piers, Fences

By GENE ESPY
Publisher

A local landowner is threatening to sue the Dade County government because it has failed to build a reservoir, piers and fences along 61-acres along Lookout Creek, according to legal documents.

Wallace Jack Sells Jr., filed notice he intends to sue the Dade County Board of Commissioners and the Dade County Water and Sewer Authority. It stems from 61-acres he sold them for $500,000 in June 2017.

The land was purchased so the government could build a basin that would provide an additional supply of drinking water to accommodate future residential and industrial growth within the county.

As of now, that reservoir project has been halted, but not abandoned, according to County Commissioner Ted Rumley.

“We originally bought that property for the future of Dade County and one day that reservoir will be built. . . It might not be in our administration, but the land was not bought to build the reservoir immediately and that was all right up front,” Rumley told The Sentinel last week.

When Dade County purchased the property, they agreed to several special options and addendums in the contract, according to Sells’ lawyer David N. Lockhart, of Bradford and Lockhart Attorney At Law of LaFayette.

The option contained a survival provision that read:

“All covenants, promises, representations, warranties, understandings and agreements contained in this option shall be made as of the date hereof, shall be deemed to be made again at the closing and shall survive the closing and delivery and recording of the limited warranty deed conveying seller’s interest in the property.”

The option contained two attachments, which referenced additional things Sells wanted the county to do after buying the land.

Dade County, as of press time, has not answered the anti litem request.

The following are key sections of the pre-lawsuit complaint sent to the county by Sells. It states:

• “In addition to payment of the purchase price as set forth herein, the parties agree and covenant to the performance of the additional obligations and conditions of the final sale as set forth in attachment B to this agreement. These conditions shall survive the execution of this option and shall be made part of the purchase and sale of the property as further consideration of the same.”
• The attachment contained 11 paragraphs detailing those additional covenants and agreements between the parties. They dealt with the construction of a reservoir or lake upon the property.
  It states: “The seller shall be under no obligation to construct, build or maintain the reservoir or other improvements described herein.”
• An appraisal of the property, with an effective date of July 27, 2018, was made at the request of the county which determined that the market value of the tract was $503,398. . .”
• “On Dec. 6, 2018, the governing authority of Dade County adopted resolution R-58-18. That resolution was captioned: ‘A resolution approving the intergovernmental agreement with Dade County Water and Sewer Authority for purchase of Sells lane tract, approving and ratifying actions taken for purchase of tract; authorizing the county executive to take such further action as needed to complete purchase and for other such purposes.’”
• “. . .The intergovernmental agreement was for the acquisition of the Sells land tract pursuant to the option to purchase agreement and stated that the Sells land tract is deemed particularly well-suited for the construction of a water reservoir to serve the citizens of Dade County.”
• “One Dec. 26, 2018, an amendment to the option agreement was executed by Dade County and by Sells. The amendment contained recitals acknowledging that the purchaser had paid $75,000 as partial payment of the purchase price and that the seller had agreed to extend the option period to close on the property up to and including Dec. 29, 2018.”
  * The amendment further amended certain provisions of attachment B to the original option agreement:
  “An acknowledgement that the construction of piers into the water reservoir might not be permitted under federal, state and local laws at this time and a statement that should construction of piers be permitted in the future, the purchaser would cooperate with Seller in the seller’s application for the construction of two piers adjacent to Seller’s property. . .”
• The amendment also talked about replacement of compactable soil and topsoil in connection with the construction of the reservoir and that the process could be lengthy in completing.
  “A recital that the parties understand and agree that the permitting process for the construction of the reservoir will be lengthy and is likely to extend for at least two years, and provisions for leasing the tract to the Seller for use for hay harvesting and grazing prior to the construction of the reservoir. All remaining provisions of the Option Agreement not directly modified by the amendment were to remain in full force and effect.”
• “On January 18, 2019, a Lease agreement was entered into between Plaintiff Sells, as Lessee, and Dade County and the Water Authority, as Lessors. The lease contained a recital that the ‘Owner has purchased from the Lessee a 61-acre tract, more or less, for purposes of constructing a water reservoir on Sells Lane, in Trenton, Georgia.’ The lease further recited that ‘As a part of the consideration for the sale and purchase of the Property, the Lessee is allowed to continue the use of the Property for such purposes and for such periods of time prior to the construction of the water reservoir.”
• Then on Oct. 19, 2021, the water authority issued a press release stating they were abandoning the reservoir project.
  “Citing to issues raised in the feasibility study, particularly concerning expense of the project and prospective delays and difficulties with the federal and state permitting authorities, the Water Authority’s conclusion was that: “For these reasons, the Authority has chosen not to move forward with the process.”
• “Following the announcement of the Water Authority that the reservoir project was abandoned, a meeting of the Dade County Commission was held on July 7, 2022, at which time debate about what to do with the Sells Lane property was undertaken. By a 3-2 vote, the Commission voted to take over the loan, which the Water Authority had obtained from the Georgia Environmental Finance Authority to complete the original purchase of the property. Dade County would thereby assume the remaining indebtedness on the property, believed to be approximately $338,932.00 and would also assume ownership of the property, which to the best of Plaintiffs knowledge and belief, has been accomplished.”
• The section of the Anti Litem notice talking about damages, Sells made several claims.
• “The Defendants are in default and have breached the agreement with regard to multiple matters. No provisions in the agreement contemplated the abandonment of the project that was without any question the prime object of the agreement and sale of the property.”
• “No provisions in the agreement constituted a release of the obligations of the defendants as a consequence of abandonment of the construction of the reservoir by the defendants.”
• “The defendants failed to undertake due diligence with regard to the feasibility and expense of the project, having made no effort to have experts determine the feasibility of the project or what compliance with state and federal laws would be required. In fact, no environmental or hydrological study was conducted until July 15, 2021, a matter of two years and seven months following the transfer of the property. . .”
• “The defendants breached the agreement on October 19, 2021, when notification was given by the ‘Press Release Regarding Proposed Reservoir’ that the authority has chosen to not move forward with the process.’ That announcement constituted an abandonment of the plan to construct the reservoir and breached the agreement by abandoning all of the defendants’ promises contained in the agreement.”
• “As a consequence of abandonment of the reservoir project, the plaintiff has permanently lost the acquirement of lakeside lots on his adjacent property; As a consequence of the abandonment of the reservoir project, the plaintiff has suffered a major diminution in value of his adjoining property;
• The defendants have failed to construct or undertake the construction of underground utilities on plaintiff’s property as contemplated by the easement agreement dated December 26, 2018. . .”
• “The defendants have removed Seller’s fence resulting in Seller being required to make a forced sale of cattle. The defendants have failed to construct and maintain a boating and picnic area next to the lake as contemplated . . . The defendants have failed to construct and maintain a fence of such type and character as to prevent dogs from crossing onto Seller’s adjacent property . . . The defendants have failed to lower the hillside area adjacent to Seller’s property by at least six feet from its current height. . .The defendants have failed to build and maintain an earthen dam along its lone between the two ridges as described in the legal description at a height sufficient to contain a 100-year flood. . .”
• “The Defendants have failed to comply with paragraph 8 of attachment B to the agreement which contemplates continued use by plaintiff of the property for agricultural purposes until the construction begins for the reservoir.”
• “Each of the foregoing breaches of the agreement by defendants has resulted in economic deprivation, financial loss, and diminution in value of the plaintiff’s property.”
• “Plaintiff shows that, where feasible, defendants should be required to rectify and correct their breaches of the agreement. Where not feasible, defendants should be required to answer in damages in such amount as the jury shall find to be warranted by the evidence.”
• “Wherefore, Plaintiff prays as follows: That where feasible, the defendants be ordered to rectify and correct their breaches of the agreement. That where not feasible, plaintiff have verdict of the jury and judgment of the court for such amount as the jury shall determine to be warranted by the evidence, and that he have such other or further relief as shall be just and equitable.”