BOC authorizes attorney's response to lawsuit

COVINGTON -- County commissioners approved a resolution following discussion in executive session Tuesday night stating that County Attorney Tommy Craig was authorized to file a counterclaim against a couple that filed suit against the county last year.

Although it is standard practice for the county attorney to take legal action to represent the county, Craig said Friday that the attorney for the plaintiffs has informally questioned Craig's authority to file a counterclaim.

Craig said he decided to have the board approve and ratify the resolution to put to rest any questions about his authority to file the claim.

The lawsuit in question was filed in July 2012 by Barri and Steven Speeler who live on Hodges Circle in Mansfield.

The Speelers claim that the county's construction in 2002 of a stormwater culvert and weir diverts stormwater onto their property. The county constructed the culvert and weir to address flooding of other properties on Hodges Circle, according to the lawsuit.

In 2005, the Speelers contacted the county about flooding of their property and in 2007, entered into a Covenant Not to Sue because the county promised to make improvements to address flooding, according to the lawsuit. The Speelers allege the county's measures did not abate the flooding.

In addition to Newton County and the Board of Commissioners, the lawsuit names the Speeler's neighbor, Hilda Kimsey, as a defendant, along with 10 John Does, or those responsible for discharging sediment or excessive stormwater onto the Speeler property whose identities are currently unknown.

The Speelers allege Kimsey began land disturbance activities in 2007 and in 2011 began construction of an ATV track, which made the stormwater situation worse. According to the lawsuit, in 2009, Newton County officials determined Kimsey violated the county's erosion and sediment control ordinance by failing to obtain a land disturbance permit and to properly install and maintain adequate best management practices, and issued a notice of violation. A second notice was issued by the county in 2010.

In September 2011, the Speelers filed a complaint with the Georgia Environmental Protection Division alleging runoff from the Kimsey property was impacting their property. The county again visited the site and found violations, and EPD also found violations, according to the lawsuit.

The EPD ordered all construction activities to cease on the property.

"The erosion of soils and sediments from the Kimsey Land Disturbing Activities has been greatly exacerbated by the increased stormwater flows caused by Newton County onto and over the Kimsey Property," according to the lawsuit. "The Speeler Family has experienced flooding of the Speller Property during rain events."

The Speelers are seeking an injunction requiring defendants to repair or pay to repair their property and the county to reduce volume of stormwater onto their property, as well as compensatory and punitive damages.

Craig's counterclaim filed in August 2012 states, in part, that the county is not liable to the Speelers due to the Covenant Not to Sue. The counter claim also alleges that Kimsey's removing and clearing of vegetation was the actual cause of harm and that the plaintiffs failed to provide proper ante litem, or intent to sue, notice.