Amended Legal Complaint

FILED 10/25/2019 4:06 PM CLERK OF SUPERIOR COURT DEKALB COUNTY GEORGIA
IN THE SUPERIOR COURT OF DEKALB COUNTY

STATE OF GEORGIA
THE ARDENT COMPANIES, LLC;

ARDENT ACQUISITIONS, LLC; JON
WHEELER; and COURTNEY WHEELER,
Plaintiffs,
18CV11648
v. Civil Action File No. _________
CITY OF BROOKHAVEN, GEORGIA; JURY TRIAL DEMANDED

JOHN A. ERNST, JR.; LINLEY JONES;
HYUN JONG PARK A/K/A JOHN PARK;
BATES D. MATTISON; JOSEPH GEBBIA;
and CHRISTIAN M. SIGMAN, in their
official and individual capacities,
Defendants.
FIRST AMENDED COMPLAINT FOR RELIEF
Plaintiffs The Ardent Companies, LLC and Ardent Acquisitions, LLC (“Ardent”),
and Jon and Courtney Wheeler (the “Wheelers” and collectively with Ardent,
“Plaintiffs”) file this First Amended Complaint against the City of Brookhaven (the
“City”) and John A. Ernst, Jr., Linley Jones, Hyun Jong Park a/k/a John Park, Bates D.
Mattison, Joseph Gebbia, and Christian M. Sigman, in their official and individual
capacities (collectively, “Defendants”). In support of this complaint, Plaintiffs show the
Court as follows:
I. INTRODUCTION
This case arises out of Defendants’ obstruction of Ardent’s efforts to assemble
and redevelop home sites along Bramblewood Drive, a process that required Ardent to
navigate Brookhaven’s rezoning process and right-of-way abandonment procedures.
Ardent’s experience with Brookhaven serves as a cautionary tale to any developer trying
{00430673.DOC /8 }
to get in on Brookhaven’s hot redevelopment market: Brookhaven will give a developer
the governmental approvals it needs, as long as the developer pays to play.
As the following allegations make plain, the City and its officials, consistently,
calculatingly, and maliciously abused governmental powers to obtain and protect their
own financial interests.
II. PARTIES, JURISDICTION, AND VENUE
1.
The Ardent Companies, LLC is a domestic limited liability company with its
principal office address located at 2100 Powers Ferry Road, Suite 350, Atlanta, Georgia
30339.
2.
Ardent Acquisitions, LLC is a domestic limited liability company with its
principal office address located at 2100 Powers Ferry Road, Suite 350, Atlanta, Georgia
30339.
3.
Jon and Courtney Wheeler are residents of the State of Georgia, residing at 2034
Bramblewood Drive, Brookhaven, DeKalb County, Georgia 30329.
4.
Brookhaven is a municipal corporation existing under the laws of the State of
Georgia. Brookhaven may be served with process by service upon its Mayor, John A.
Ernst, Jr. (the “Mayor”), at 4362 Peachtree Road NE, Brookhaven, DeKalb County,
Georgia, 30319, or by service upon its City Manager, Christian M. Sigman, at 4362
Peachtree Road NE, Brookhaven, Georgia 30319.
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5.
Brookhaven is subject to the jurisdiction of this Court.
6.
The Mayor is a resident of the State of Georgia and can be served with process at
3156 Silver Lake Drive NE, Atlanta, DeKalb County, Georgia 30319. The Mayor is
subject to the jurisdiction of this Court.
7.
Linley Jones (“Ms. Jones”) is a member of City Council and serves as the District
1 Council Representative. She may be served with process at 3516 Stratfield Drive,
Atlanta, DeKalb County, Georgia 30319. Ms. Jones is subject to the jurisdiction of this
Court.
8.
Hyun Jong Park a/k/a John Park (“Mr. Park”) is a member of City Council and
serves as the District 2 Council Representative. He may be served with process at 2997
Skyland Drive NE, Chamblee, DeKalb County, Georgia 30341. Mr. Park is subject to the
jurisdiction of this Court.
9.
Bates D. Mattison (“Mr. Mattison”) is a member of City Council and serves as the
District 3 Council Representative. He may be served with process at 1384 Tugaloo Drive
NE, Atlanta, DeKalb County, Georgia 30319. Mr. Mattison is subject to the jurisdiction
of this Court.
10.
Joseph Gebbia (“Mr. Gebbia”) is a member of City Council and serves as the
District 4 Representative. He may be served with process at 1846 Buckhead Valley Lane
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NE, Atlanta, DeKalb County, Georgia 30324. Mr. Gebbia is subject to the jurisdiction of
this Court.
11.
Christian M. Sigman is the City Manager (the “City Manager”) and may be served
with process at 2154 Havenwood Trail NE, Atlanta, DeKalb County, Georgia 30319. Mr.
Sigman is subject to the jurisdiction of this Court.
12.
Venue is proper in this Court as to Defendants.
13.
At all times relevant to this complaint and in taking the actions described herein,
Defendants acted under color of state law.
III. FACTUAL BACKGROUND
A. The Brookhaven Project
14.
Ardent is a real estate investment firm, acquiring and developing land throughout
the southeast.
15.
In 2017, Ardent successfully negotiated and obtained purchase contracts with the
Wheelers and other owners of certain property located along Buford Highway at
Bramblewood Drive, just north of Druid Hills Road, in the heart of Brookhaven
(collectively, the “Purchase Contracts”). (The Wheelers and the other property owners
are referred to collectively hereinafter as the “Bramblewood Owners.”)
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16.
Together, the Purchase Contracts encompassed 17 acres of land that was
particularly well-suited for redevelopment (the “Property”).
17.
Ardent intended to develop the Property as a gated townhome community,
consisting of 226+ brick homes with various amenities for its owners (the “Project”).
18.
The Project met the permitted use and density outlined in Brookhaven’s
Comprehensive Plan.
19.
The Project contemplated that townhomes would be located along Bramblewood
Drive, a dead-end street used exclusively by the homeowners living along the road.
20.
The City owns a public right-of-way for Bramblewood Drive (the “Right-of-
Way”).
21.
In addition, some of the Property was zoned R-75 (single-family residential) or
O-I (office institution).
B. Ardent’s Applications to the City
22.
In order to proceed with the Project, Ardent filed two applications with the City,
with the consent and authorization of the Bramblewood Owners:
(a) on November 1, 2017, Ardent filed an application to rezone the Property to
RM-75 (multi-family residential); and
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(b) on December 15, 2017, Ardent filed an application asking the City to
abandon the Right-of-Way.
(collectively, the “Applications”).
23.
The Purchase Contracts were contingent upon the success of the Applications.
24.
The Applications were not opposed by any adjoining property owners.
C. The City’s Obligations
25.
Defendants’ review and consideration of the Applications, as well as their conduct
in carrying out their official duties, are governed by various local and state laws.
26.
With respect to zoning applications in particular, a City official must disclose in
writing any potential conflict of interest, including a competing property or financial
interest.
27.
Once such a conflict is identified, the City official shall disqualify herself from
voting and take no further action with respect to the application.
28.
Similarly, the City’s own Ethics Ordinance prohibits the Mayor, the City Manager
and members of City Council from making any improper use of non-public information
for any purpose, including, without limitation, to further some private interest.
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29.
The Ethics Ordinance further prohibits the Mayor, the City Manager and
members of City Council from making unauthorized attempts to bind the City to a
purchase of property.
30.
Above all else, Georgia law requires that City officials, including each member of
any board commission or authority, abide by the “highest moral principles” by, among
other things, refraining from conduct that “might be construed by reasonable persons as
influencing the performance of his governmental duties.” O.C.G.A. § 45-10-3.
31.
With respect to the Right-of-Way abandonment, the City had the obligation
under state-law to follow certain mandatory procedures for disposition of property,
including the requirement to determine fair-market value of the Right-of-Way through
use of an appraisal.
D. The City’s Interest in the Property
32.
Upon receipt of the Applications, the City expressed, for the first time, its own
interest in acquiring some of the Property, despite the fact that the Property was the
subject of the Applications—a clear conflict of interest.
33.
In particular, the City was interested in acquiring 3.14 acres of the Property for a
new public safety facility (the “City Tract”).
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34.
The City Tract was the subject of six of the Purchase Contracts between Ardent
and the owners.
35.
The City informed Ardent that it intended to communicate directly with the six
Bramblewood Owners to negotiate its own deal for the City Tract:
In the interest of full disclosure, the City’s real estate acquisition firm will
be contacting the owners of 2035, 2041, 2045, 2048, 2040, and 2034
Bramblewood Drive to establish purchase options in the event your
options expire.
(A copy of the City Manager’s email correspondence to Ardent’s former Managing
Director, Neville Allison, dated December 19, 2017, is attached to Plaintiffs’ original
Complaint as Exhibit A and by reference, incorporated herein.)
36.
The City then improperly negotiated with Ardent for the City Tract—property that
was the subject of a pending rezoning application and an abandonment request.
37.
Specifically, the City offered to purchase the City Tract directly from Ardent at
five percent (5%) above the Purchase Contract prices while the zoning process “[ran] its
course.” (See Ex. A.)
38.
The City Manager made the offer for the City Tract without City Council approval,
without an appraisal, and without proper authority to represent the City on the
purchase.
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39.
In fact, at the time of the offer, the City Manager did not know the purchase
prices contained within the Purchase Contracts. He simply offered to beat those prices
by five percent (5%).
40.
The City Tract was so important to the City that the City Manager told Ardent
that if it would give the City Tract to the City, it could have anything it wanted.
41.
Having laid out the options, the City instructed Ardent to make a proposal
regarding the City Tract and the Applications.
42.
When Ardent presented its proposal, including a purchase price for the City
Tract, as discussed, the City reversed its position and rejected the offer.
43.
Despite the City Manager’s previous offer to purchase the City Tract or accept a
“land swap,” the City claimed that any offer to purchase the City Tract required (a) an
appraisal; and (b) City Council approval.
44.
Ardent requested that the City not contact the homeowners while the
Applications were pending.
45.
The City refused the request and continued to work to advance its own interest,
commissioning appraisals of the parcels comprising the City Tract and communicating
with the owners, even while the Applications were pending.
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46.
At the very same time the City was supposed to be evaluating the Applications,
the City and its agents maneuvered to acquire some of the property for itself.
47.
This desire to purchase the City Tract created a conflict of interest, since the City
stood to gain a substantial advantage upon the denial of the Applications.
E. The City’s Abuse of the Process
48.
Thereafter, the City delayed consideration of the Applications in order to gain
leverage in its negotiations with Ardent.
49.
The City knew that the Purchase Contracts would expire if it delayed the
Applications long enough.
50.
To maintain pressure on Ardent, the City made unreasonable, unjustifiable
demands with respect to the Right-of-Way.
51.
Ardent offered to pay the City $249,250 for the abandonment of the Right-of-
Way, based upon a third-party certified appraisal of the abandoned road.
52.
The City refused to provide its own appraisal of the fair market value, as required
by law.
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53.
Rather, without any support for its position, the City stated simply that “the ROW
is worth much more.” (A copy of the City Manager’s email correspondence to Mr.
Allison, dated December 27, 2017, is attached to Plaintiffs’ original Complaint as Exhibit
B and by reference, incorporated herein.)
54.
The City cautioned: “Ardent has a long way to go before the City abandons ~2
acres of right away for $250,000.” (See Ex. B.)
55.
On February 16, 2018, Patrice Ruffin, the City’s Director of Community
Development, wrote to counsel for Ardent, stating that the City Administration “does
not recommend” abandoning the Right-of-Way. (A copy of Ms. Ruffin’s correspondence
is attached to Plaintiffs’ original Complaint as Exhibit C and by reference, incorporated
herein.)
56.
Despite this position, the City continued to negotiate with Ardent, informing
Ardent that it would abandon the Right-of-Way in exchange for $1.5 million per acre.
57.
The City refused to produce any appraisal reflecting this value for the Right-of-
Way. Upon information and belief, no such appraisal exists, as the City has a pattern of
failing to appraise properly the value of property it purchases and sells.
58.
For example, in rejecting Ardent’s proposal, the City claimed that it received $1.6
million per acre for its recent abandonment of the right-of-way for Tullie Road and
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Tullie Circle, but it could not justify that price, as it did not obtain an appraisal for that
abandonment either. (See Ex. B.)
59.
When Ardent asked the City to reconsider the value of the Right-of-Way, the City
confirmed that members of City Council would not accept less than the made-up price of
$1.5 million per acre.
60.
However, the City indicated that the City and its Council would “reconsider its
position” if Ardent changed the concept for the Project:
As a side, the City Council did acknowledge that there is a time and place
for abandoning public property to further redevelopment and economic
development priorities, but the nature of your development on Buford
Highway is not the redevelopment the City Council considers worthy of
abandoning the public right of way well below market prices.
(A copy of the email from the City Manager to Mr. Allison, dated May 23, 2018, is
attached to Plaintiffs’ original Complaint as Exhibit D and by reference, incorporated
herein.)
61.
Again, the City refused to produce any evidence of these allegedly higher “market
prices.”
F. The Revised Project
62.
Based upon the City’s representations, Ardent submitted a revised site plan for a
mixed-use development on the Property.
63.
The City’s insistence on a revised plan further delayed the Applications.
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64.
Like the original Project, the revised plan was contingent upon the City granting
the Applications for the rezoning and abandonment of the Right-of-Way.
65.
The City was amenable to the revised plan and agreed to sell the Right-of-Way for
$2 million, all of which would be reimbursed to Ardent via the City’s contribution to
infrastructure costs.
66.
In addition, the City offered to abate taxes on the Project, which, in part, would
have reduced the amount of taxes payable by Ardent to DeKalb County and its school
system.
67.
The City’s offer to abate taxes payable to the school system was intentional—the
Mayor indicated to Ardent that he would abate taxes on all Brookhaven projects in
retribution for the School Board’s recent decision to relocate a high school facility
outside the City limits.
68.
The City conditioned its offer for the tax abatement on Ardent’s agreement to a
kick-back to the City if Ardent sold the Property within a certain period of time. The
City characterized this arrangement as reimbursement for the City’s investment in the
Project.
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69.
Under this arrangement, however, the City would receive the payments Ardent
would have made to DeKalb County and the school system absent the abatement—
money the City was not entitled to in the first instance.
70.
In reality, this arrangement granted the City an equity return on the Project,
another conflict of interest.
71.
Ardent refused the City’s improper demand to “pay to play” as a condition of
receiving the tax abatement.
G. Consideration of the Applications
72.
On September 12, 2018, the City Council finally reviewed the Applications.
73.
The City Manager recommended that the City Council deny the Abandonment
Application, and the City Council accepted that recommendation.
74.
In light of that denial, Ardent withdrew the rezoning Application.
75.
The Purchase Contracts have expired, the Wheelers (and the other Bramblewood
Owners) were unable to sell their properties to Ardent, and Ardent cannot proceed with
the Project.
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IV. CAUSES OF ACTION
Count I: Tortious Interference with Business and Contractual Relationships

(Plaintiffs v. All Defendants)
76.
Paragraphs 1 through 75 are hereby incorporated by reference as if rewritten in
their entirety.
77.
Ardent and the Bramblewood Owners were parties to fully enforceable contracts
for the purchase of the Property.
78.
Defendants’ conduct caused the non-performance of those contracts.
79.
At all times relevant to this action, Defendants were fully aware of the Purchase
Contracts, as well as the business relationship between Ardent and the various
homeowners, including the Wheelers.
80.
Defendants engaged in conduct designed specifically to interfere with those
Purchase Contracts and relationships so that the City could take advantage of the real
estate opportunity and/or extract money from Ardent.
81.
Defendants acted improperly and without privilege when they:
(a) failed to disclose the City’s conflict of interest in the Property and refused
to comply with the law related thereto;
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(b) improperly extended offers to bind the City without first obtaining
appropriate approvals;
(c) improperly used non-public information provided by Ardent to further its
own objectives;
(d) improperly tied approval of the Applications to a land exchange, a kick-
back, or unsubstantiated payment;
(e) improperly used non-public information in an effort to gain a benefit and
advantage for the City;
(f) intentionally delayed the consideration of the Applications;
(g) contacted the owners to negotiate the City’s purchase of the Property and
undermine the Purchase Contracts and created a conflict of interest with
respect to the Applications;
(h) demanded an arbitrary and unjustifiable amount of money and/or a
“property swap” for the abandonment of the Right-of-Way;
(i) conditioned approval of the Applications on Ardent’s agreement to
unreasonable terms, including, without limitation, purchase prices that
bear no relation to fair market value;
(j) conditioned approval of the Applications on Ardent’s agreement to convey
the City Tract to the City;
(k) conditioned approval of the Applications and the tax abatement on
Ardent’s agreement to a kick-back arrangement; and
(l) acted on the Applications despite their own interest in the Property.
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82.
Defendants engaged in said conduct in order to undermine and delay the Project,
force the expiration of the Purchase Contracts, and/or extort money from Plaintiffs.
83.
In so doing, Defendants acted purposefully, with malice and with the intent to
injure Plaintiffs.
84.
As a result of Defendants’ conduct, the Purchase Contracts expired, the Wheelers
(and the other Bramblewood Owners) were unable to sell their properties to Ardent, and
Ardent was unable to move forward with the Project.
85.
Plaintiffs have been damaged in an amount to be proved at trial.
Count II - Violation of O.C.G.A. § 36-33-4

(Plaintiffs v. the Mayor, the City Manager and City Council Members)
86.
their entirety.
87.
Members of council and other officers of a municipal corporation are personally
liable to one who sustains special damages as the result of any official act of such officers
if done oppressively, maliciously, corruptly, or without authority of law.
88.
The Mayor, the City Manager and the City Council Members acted oppressively,
maliciously, corruptly, and without authority when they:
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(b) improperly extended offers to bind the City without first obtaining
appropriate approvals;
own objectives;
(e) improperly used non-public information in an effort to gain a benefit and
advantage for the City;
(f) intentionally delayed the consideration of the Applications;
(g) contacted the homeowners to negotiate the City’s purchase of the Property
and undermine the Purchase Contracts and created a conflict of interest
with respect to the Applications;
(h) demanded an arbitrary and unjustifiable amount of money and/or a
(k) conditioned approval of the Application and the tax abatement on Ardent’s
agreement to a kick-back arrangement;
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(l) violated the non-disclosure agreement by divulging confidential and
proprietary information;
(m) misrepresented the City Manager’s authority to enter into the non-
disclosure agreement; and
(n) acted on the Applications despite their own interest in the Property.
89.
Plaintiffs have suffered special damages as a result of Defendants’ conduct in an
amount to be proved at trial.
COUNT III - Relief Under 42 U.S.C. § 1983

90.
their entirety.
91.
In pursuing their rights against Defendants and with respect to the Property and
the Purchase Contracts, Plaintiffs exhausted all administrative and state law remedies,
or such efforts would have been futile.
92.
Defendants acted under the color of state law in depriving Plaintiffs of their
constitutionally guaranteed rights. The following paragraphs set forth the individual
constitutional rights violated.
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A. Violation of Equal Protection Rights
93.
The Fourteenth Amendment guarantees that all persons shall be treated alike by
government under like circumstances and conditions.
94.
Defendants treated Plaintiffs differently from other similarly situated developers
and property owners in that they improperly pursued the City’s interests in the Property
while simultaneously charged with the duty to consider fairly the Applications.
95.
To frustrate the Project, Defendants improperly demanded an arbitrary and
unjustifiable amount of money and/or a “property swap” for the abandonment of the
Right-of-Way.
96.
Defendants treated Plaintiffs differently from other similarly situated property
owners and developers in that they singled Plaintiffs out for such treatment.
97.
Defendants have abandoned their rights-of-way to other property owners in
exchange for payment of the fair market value of the property and/or have justified the
estimated value with objective, third-party appraisals.
98.
For example, in April of 2018, Defendants properly navigated the process for
abandoning a portion of Windsor Parkway in favor of several adjacent property owners.
The Defendants sold said property for less than $150,000 per acre. The Defendants did
not extort a kickback, land swap, or other extra-legal consideration during this process.
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99.
In addition, Defendants intentionally delayed the consideration of the
Applications and conditioned approval of the Applications on Ardent’s agreement to
unreasonable and unjustifiable terms.
100.
Defendants have considered and granted similar applications for right-of-way
abandonments and rezoning applications without imposing arbitrary and self-serving
conditions.
101.
Defendants’ discriminatory treatment of Plaintiffs described herein was
intentional and undertaken with ill-will and for the deliberate purpose of frustrating the
Project and interfering with the Purchase Contracts.
102.
Defendants’ conduct with respect to Plaintiffs intentionally discriminates in an
arbitrary, unreasonable, capricious and unconstitutional manner between Plaintiffs and
other similarly situated persons in violation of the Fourteenth Amendment of the
Constitution of the United States.
B. Violation of Procedural Due Process Rights
103.
No state may deny any person of property without due process of law. U. S.
Const. Amend. XIV.
104.
Plaintiffs have protected property rights in the Property and the Purchase
Contracts.
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105.
Defendants’ course of conduct that resulted in the rejections and withdrawal of
the Applications, the expiration of the Purchase Contracts, and the failure of the Project
deprived Plaintiffs of protected property rights.
106.
Defendants decided to preemptively reject the rezoning and deny the
abandonment without providing notice or an opportunity to be heard.
107.
Defendants denied Plaintiffs meaningful notice and opportunity to be heard
when they, among other things:
(a) decided to preemptively reject the proposed rezoning and abandonment
without a hearing and without giving Plaintiffs an opportunity to present
or defend the Applications;
(b) failed to disclose the City’s conflict of interest in the Property and refused
own objectives;
(e) intentionally delayed the consideration of the Applications;
(f) contacted the owners to negotiate the City’s purchase of the Property and
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(g) demanded an arbitrary and unjustifiable amount of money and/or a
(h) failed to follow the mandatory state-law procedures for the abandonment
of the Right-of-Way;
108.
Defendants’ process in reviewing the Applications, including the significant
conflicts of interest described above, was fundamentally unfair and constitutionally
inadequate.
109.
As a result of Defendants’ conduct, Plaintiffs have been damaged in an amount to
be proved at trial.
C. Violation of Substantive Due Process Rights
110.
No state may deny any person of property without due process of law. U. S.
Const. Amend. XIV.
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111.
In furtherance of the Project, Ardent made substantial investments in the Project,
while Plaintiffs made arrangements in furtherance of the Purchase Contracts.
112.
Contracts. Defendants’ course of conduct that resulted in the rejections and withdrawal
of the Applications, the expiration of the Purchase Contracts, and the failure of the
Project deprived Plaintiffs of protected property rights.
113.
Defendants arbitrarily and capriciously deprived Plaintiffs of their constitutional
rights when they:
(b) improperly used non-public information provided by Ardent to further its
own objectives;
(c) improperly tied approval of the Applications to a land exchange, a kick-
(d) intentionally delayed the consideration of the Applications;
(e) contacted the owners to negotiate the City’s purchase of the Property and
(f) demanded an arbitrary and unjustifiable amount of money and/or a
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(g) failed to follow the mandatory state-law procedures for the abandonment
(h) conditioned approval of the Applications on Ardent’s agreement to
(i) conditioned approval of the Applications on Ardent’s agreement to convey
(j) conditioned approval of the Applications and the tax abatement on
(k) acted on the Applications despite their own interest in the Property.
114.
Such conduct was not narrowly tailored to serve a compelling state interest and
deprived Plaintiffs of property rights without due process of law.
115.
As a result of Defendants’ conduct, Plaintiffs are entitled to damages in an
COUNT IV - Violations of Georgia Constitution

116.
their entirety.
117.
Plaintiffs exhausted all administrative law remedies, or such remedies would be
futile.
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A. Violation of Equal Protection Rights
118.
Article I, Section I, Paragraph II of the Constitution of the State of Georgia
guarantees that no person shall be denied equal protection of the laws.
119.
Defendants treated Plaintiffs differently from other similarly situated developers
and property owners in that it improperly pursued its own interests in the Property
while simultaneously charged with the duty to consider fairly the Applications.
120.
To frustrate the Project, Defendants improperly demanded an arbitrary and
unjustifiable amount of money and/or a “property swap” for the abandonment of the
Right-of-Way.
121.
Defendants treated Plaintiffs differently from other similarly situated property
owners and developers in that they singled Plaintiffs out for such treatment.
122.
Defendants have abandoned their rights-of-way to other property owners in
exchange for payment of the fair market value of the property and/or have justified the
estimated value with objective, third-party appraisals.
123.
For example, in April of 2018, Defendants properly navigated the process for
abandoning a portion of Windsor Parkway in favor of several adjacent property owners.
The Defendants sold said property for less than $150,000 per acre. The Defendants did
not extort a kickback, land swap, or other extra-legal consideration during that process.
-26-
124.
Defendants’ discriminatory treatment of Plaintiffs described herein was
intentional and undertaken with ill-will and for the deliberate purpose of frustrating the
Project and interfering with the Purchase Contracts.
125.
Defendants’ conduct with respect to Plaintiffs intentionally discriminates in an
arbitrary, unreasonable, capricious and unconstitutional manner between Plaintiffs and
other similarly situated persons in violation of the Constitution of the State of Georgia.
B. Violation of Substantive Due Process Rights
126.
“No person shall be deprived of life, liberty, or property except by due process of
law.” Ga. Const. Art. I, Sec. I, Para. I.
127.
In furtherance of the Project, Ardent made substantial investments in the Project,
while Plaintiffs made arrangements in furtherance of the Purchase Contracts.
128.
Contracts.
129.
Defendants deprived Plaintiffs of their property rights when they:
(b) improperly used non-public information provided by Ardent to further its
own objectives;
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(c) improperly tied approval of the Applications to a land exchange, a kick-
(d) intentionally delayed the consideration of the Applications;
(e) contacted the owners to negotiate the City’s purchase of the Property and
(f) demanded an arbitrary and unjustifiable amount of money and/or a
(g) failed to follow the mandatory state-law procedures for the abandonment
(h) conditioned approval of the Applications on Ardent’s agreement to
(i) conditioned approval of the Applications on Ardent’s agreement to convey
(j) conditioned approval of the Applications and the tax abatement on
(k) acted on the Applications despite their own interest in the Property.
130.
Such conduct was not narrowly tailored to serve a compelling state interest and
deprived Plaintiffs of property rights without due process of law.
131.
As a result of Defendants’ conduct, Plaintiffs are entitled to damages in an
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C. Violation of Procedural Due Process Rights
132.
Plaintiffs have property rights in the Property and the Purchase Contracts.
133.
Defendants’ course of conduct that resulted in the rejections and withdrawal of
the Applications, the expiration of the Purchase Contracts, and the failure of the Project
deprived Plaintiffs of protected property rights.
134.
Defendants decided to preemptively reject the rezoning and deny the
abandonment without providing notice or an opportunity to be heard.
135.
Defendants denied Plaintiffs meaningful notice and opportunity to be heard
when they, among other things:
(a) decided to preemptively reject the proposed rezoning and abandonment
without a hearing and without giving Plaintiffs an opportunity to present
or defend the Applications;
(b) failed to disclose the City’s conflict of interest in the Property and refused
own objectives;
(e) intentionally delayed the consideration of the Applications;
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(f) contacted the owners to negotiate the City’s purchase of the Property and
(g) demanded an arbitrary and unjustifiable amount of money and/or a
(h) failed to follow the mandatory state-law procedures for the abandonment
136.
Defendants’ process in reviewing the Applications, including the significant
conflicts of interest described above, was fundamentally unfair and constitutionally
inadequate.
137.
As a result of Defendants’ conduct, Plaintiffs have been damaged in an amount to
be proved at trial.
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COUNT V - Inverse Condemnation
(Wheelers v. the City)
138.
their entirety.
139.
The City may not take Plaintiffs’ property without just compensation.
140.
This inverse condemnation claim includes a “Jennings Reservation” of the
Wheelers’ right to bring a takings claim in Federal Court.
141.
The City’s conduct deprives the Wheelers’ of economically viable use of their
property without advancing legitimate state interests.
142.
The City interfered with the Wheelers’ reasonable investment-backed
expectations with regard to the Property and the Project.
143.
The City’s conduct amounts to a taking of the Wheelers’ property without just
compensation.
144.
Plaintiffs are entitled to just compensation for the taking of their property.
-31-
COUNT VI - Violation of Takings Clause
(Wheelers v. the City)
145.
their entirety.
146.
The City may not take Plaintiffs’ property for public use without just
compensation. Ga. Const. Art. I, Sect. III, Para. I.
147.
This takings claim includes a “Jennings Reservation” of the Wheelers’ right to
bring a takings claim in Federal Court.
148.
The Wheelers have property rights in their property.
149.
Defendants denied the Wheelers the economically viable use of their property
when they:
(b) improperly tied approval of the Applications to a land exchange, a kick-
(c) intentionally delayed the consideration of the Applications;
(d) contacted the owners to negotiate the City’s purchase of the Property and
-32-
(e) demanded an arbitrary and unjustifiable amount of money and/or a
(f) conditioned approval of the Applications on unreasonable terms,
including, without limitation, purchase prices that bear no relation to fair
market value;
(g) conditioned approval of the Applications on the agreement to convey the
City Tract to the City;
(h) conditioned approval of the Applications and the tax abatement on the
agreement to a kick-back arrangement; and
(i) acted on the Applications despite their own interest in the Property.
150.
In so doing, Defendants interfered with the Wheelers’ reasonable investment-
backed expectations with regard to the Property and the Project.
151.
Such interference is a taking of the Wheelers’ property without just compensation
in violation of the Georgia Constitution.
152.
As a result of Defendants’ conduct, the Wheelers are entitled to damages in an
Count VII - Exemplary Damages

153.
their entirety.
-33-
154.
Defendants’ conduct, as alleged herein, evidences fraud, malice, and/or willful or
wanton conduct such that exemplary damages are appropriate.
155.
As a result, Plaintiffs are entitled to damages in an amount to be determined at
trial.
Count VIII - Attorneys’ Fees

156.
their entirety.
157.
Defendants have acted in bad faith, been stubbornly litigious, and/or have caused
Ardent unnecessary time, trouble, and expense.
158.
Plaintiffs have incurred attorneys’ fees and expenses in connection with having to
file and pursue their claims in this action and in pursuing the Applications.
159.
Pursuant to O.C.G.A. § 13-6-11, Plaintiffs are entitled to recover their expenses of
litigation, including attorneys’ fees.
WHEREFORE, Plaintiffs respectfully pray that the Court enter judgment as
follows:
(a) pursuant to Count I, judgment in favor of Plaintiffs against all Defendants
in an amount to be proved at trial;
-34-
(b) pursuant to Count II, judgment in favor of Plaintiffs against Defendants
John Ernst, Linley Jones, John Park, Bates Mattison, Joe Gebbia, and
Christian Sigman in an amount to be proved at trial;
(c) pursuant to Count III, judgment in favor of Plaintiffs against all
Defendants in an amount to be proved at trial;
(d) pursuant to Count IV, judgment in favor of Plaintiffs against all
(e) pursuant to Count V, judgment in favor of the Wheelers against Defendant
City of Brookhaven in an amount to be proved at trial;
(f) pursuant to Count VI, judgment in favor of the Wheelers against
Defendant City of Brookhaven in an amount to be proved at trial;
(g) pursuant to Count VII, judgment in favor of Plaintiffs against all
(h) pursuant to Count VIII, judgment in favor of Plaintiffs against all
Defendants for Ardent’s costs and expenses, including attorneys’ fees,
incurred in the bringing of this action;
(i) trial by jury on all counts so triable; and
(j) such other and further relief as this Court deems just and proper.
-35-
Respectfully submitted this 25th day of October, 2019.
/s/ Shannan F. Oliver

Simon H. Bloom
Georgia Bar No. 064298
([email protected])
Shannan F. Oliver
([email protected])
Andrea J. Pearson
([email protected])
Attorneys for Plaintiffs
BLOOM PARHAM, LLP

977 Ponce de Leon Avenue, NE
Atlanta, GA 30306-4265
Tel: (404) 577-7710
Fax: (404) 577-7715
-36-
IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
THE ARDENT COMPANIES, LLC,

ARDENT ACQUISITIONS, LLC, JOHN
WHEELER and COURTNEY WHEELER,
Plaintiffs,
vs.
CITY OF BROOKHAVEN, GEORGIA, CASE NO. 18CV11648

JOHN A. ERNST, JR., LINLEY JONES,
HYUN JONG PARK A/K/A JOHN PARK,
BATES D. MATTISON, JOSEPH GEBBIA,
and CHRISTIAN M. SIGMAN, in their
official and individual capacities,
Defendants.
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed in the above-styled action the foregoing
FIRST AMENDED COMPLAINT FOR RELIEF with the Clerk of Court using the
Odyssey eFileGA system, which will automatically send e-mail notification of such filing
to all parties of record.:
Theodore P. Meeker, III, Esq.

([email protected])
Sumner Meeker, LLC
14 East Board Street
Newnan, GA 30263
This 25th day of October, 2019.

/s/ Shannan F. Oliver
Shannan F. Oliver
Bloom Parham, LLP

977 Ponce de Leon Avenue
Atlanta, GA 30306
Telephone: (404) 577-7710
-37-

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FILED 10/25/2019 4:06 PM CLERK OF SUPERIOR COURT DEKALB COUNTY GEORGIA

IN THE SUPERIOR COURT OF DEKALB COUNTY

THE ARDENT COMPANIES, LLC;

CITY OF BROOKHAVEN, GEORGIA; JURY TRIAL DEMANDED

FIRST AMENDED COMPLAINT FOR RELIEF

capacities (collectively, “Defendants”). In support of this complaint, Plaintiffs show the

This case arises out of Defendants’ obstruction of Ardent’s efforts to assemble

navigate Brookhaven’s rezoning process and right-of-way abandonment procedures.

the governmental approvals it needs, as long as the developer pays to play.

own financial interests.

II. PARTIES, JURISDICTION, AND VENUE

Ardent Acquisitions, LLC is a domestic limited liability company with its

Bramblewood Drive, Brookhaven, DeKalb County, Georgia 30329.

Brookhaven is a municipal corporation existing under the laws of the State of

Peachtree Road NE, Brookhaven, Georgia 30319.

Brookhaven is subject to the jurisdiction of this Court.

subject to the jurisdiction of this Court.

jurisdiction of this Court.

Sigman is subject to the jurisdiction of this Court.

Venue is proper in this Court as to Defendants.

Defendants acted under color of state law.

III. FACTUAL BACKGROUND

A. The Brookhaven Project

are referred to collectively hereinafter as the “Bramblewood Owners.”)

Together, the Purchase Contracts encompassed 17 acres of land that was

particularly well-suited for redevelopment (the “Property”).

Ardent intended to develop the Property as a gated townhome community,

The Project contemplated that townhomes would be located along Bramblewood

In addition, some of the Property was zoned R-75 (single-family residential) or

O-I (office institution).

B. Ardent’s Applications to the City

with the consent and authorization of the Bramblewood Owners:

(a) on November 1, 2017, Ardent filed an application to rezone the Property to

RM-75 (multi-family residential); and

abandon the Right-of-Way.

(collectively, the “Applications”).

The Applications were not opposed by any adjoining property owners.

C. The City’s Obligations

Defendants’ review and consideration of the Applications, as well as their conduct

With respect to zoning applications in particular, a City official must disclose in

writing any potential conflict of interest, including a competing property or financial

voting and take no further action with respect to the application.

influencing the performance of his governmental duties.” O.C.G.A. § 45-10-3.

under state-law to follow certain mandatory procedures for disposition of property,

including the requirement to determine fair-market value of the Right-of-Way through

D. The City’s Interest in the Property

subject of the Applications—a clear conflict of interest.

new public safety facility (the “City Tract”).

and the owners.

(A copy of the City Manager’s email correspondence to Ardent’s former Managing

Complaint as Exhibit A and by reference, incorporated herein.)

was the subject of a pending rezoning application and an abandonment request.

course.” (See Ex. A.)

by five percent (5%).

regarding the City Tract and the Applications.