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Judge puts burden on city in cemetery battle

By Walter Geiger At a hearing in Fulton County superior court Friday, Judge John J. Goger placed the burden squarely upon the City of Barnesville in an appeal of the granting of its permit to relocate at least 103 graves from Wadsworth Cemetery to Greenwood Cemetery. That permit was issued by the Lamar County commission by a narrow 3-2 vote on July 13, 2016. The city desires to relocate the graves to make room for industrial expansion. The cemetery, which dates back to the early 1800s, is located on city-owned property. Direct Wadsworth descendants Mike Ross and Cynthia Wadsworth appealed. John Strauss, representing Ross, and Ed Furr, representing Wadsworth, filed those appeals in Fulton County superior court where Goger is the deputy chief judge. At issue is whether or not Barnesville is a political subdivision of the state. If it is, Georgia law seems clear it should have gone to Lamar superior court to seek the permit rather than the county commission. Sub-section 36-72-14 of the Georgia Code regarding abandoned cemeteries reads in part ‘the superior court having jurisdiction over the real property wherein the cemetery or burial ground is located shall have exclusive jurisdiction over the permit application’. Strauss seized on that section of the code in his opening statement. ’This had to be filed in superior court. Therefore the permit is annulled. The city claims it is not a political subdivision. It is asking you to ignore the law. It is hard to believe we are having to spend all this money to prove the City of Barnesville is not a political subdivision of the state. The city’s sovereign immunity relies on it being a political subdivision of the state,’ Strauss argued. City attorney Robert Melton said the city based its application on the administrative procedures act. ‘The city charter makes no mention of a political subdivision. The city is a municipal corporation,’ Melton countered. Judge Goger halted Melton asking, ‘So you are a subdivision of the state on some things but not with cemeteries? Give me an example.’ Melton countered the city enjoys sovereign immunity without being a political subdivision. ’The city is not an agency. It is not an authority. So you are a political subdivision of the state,’ the judge declared. ’It comes down to the permitting process. The proper venue for an appeal is in Lamar County not Fulton County. These issues could have been heard in Lamar County not this court,’ Melton countered. In his time before the judge, Furr quickly responded to that statement. ’I agree we need to be back in Lamar superior court eventually. This (Fulton County court) is a point of appeal in the statute. That is designed to remove home cooking. This is an available venue. We can file here and I think we are entitled to remain here,’ Furr said. He hit back hard that Lamar superior court was the proper place for the original permit application. ’All we can really do is make a determination if Lamar County’s decision was legal. If they messed it up, they have to go to Lamar superior court. The law grants exclusive jurisdiction to the superior court where the cemetery is located,’ he argued. Melton countered that the city did not appeal the commission’s decision and that Ross and Wadsworth should have appealed in Lamar superior court. ’So, is the city a political subdivision of the state? You can’t be a political subdivision of the state for some things and not for others,’ Judge Goger concluded. He gave Melton 10 days to file briefs on the subdivision matter and granted Strauss and Furr five additional days days for responses. Strauss seemed to taste victory after the hearing. ’Unfortunately, today’s proceeding was a continued and unnecessary waste of time and money. I am at a loss as to why, even now, the city is fighting so hard to avoid following the law when addressing such an important issue as the relocation of the remains of my client’s ancestors. I am grateful the appellate judge read the law in the same way as we did which is really the only reasonable way to do so,’ Strauss said. ’The commissioners acted illegally in granting a development permit that would have resulted in the removal of an historically significant family cemetery. Letting the county commission rule on the city permit was like judging your own beauty contest. You know in advance who is going to win,’ Furr added. Melton’s response was more measured. ’The city was pleased with the attention to the appeal issue that Judge Goger expressed at the hearing and his request for further information on some legal points but there has not been any ruling at this point and the city would not have other comments at this time as the process goes forward,’ the city attorney said. The Wadsworth Cemetery is on the west side of Old Milner Road. It was established by Archibald Wadsworth, one of the original settlers of this area. A previous land owner removed all the headstones for some unknown reason decades ago. The city has owned the land for 20 years. It is now known as the Meadow Railway industrial site. Nearby is Lavender’s Curve where two trains collided as the Battle of Atlanta was winding down on Sept. 1, 1864, killing at least 31 people. Also at dispute is whether or not those dead were buried in the nearby Wadsworth family plot.

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