Atlanta Botanical Gardens - OC Today

Discussion in 'Citizens Encounters' started by Phil1979, Oct 12, 2014.

  1. jrm

    jrm Sledgehammer

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    The beginning (and likely the end) of the analysis turns on what the lease or other controlling documents say. I've received several inquiries in the past couple weeks from people about different scenarios around the state, but without the lease, there is no way of knowing or even accurately guessing.
     
  2. Clark

    Clark Well-Known Member

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    I apologize John, I mistakenly gathered from this thread that things could be at least broadly judged. What's funny is I forgot I did a semi-related open records request on the station and they ended up sending me the lease (in a non-searchable way of course :roll:). The only thing that stands out so far is that the lease term is for 99 years.
     

  3. jrm

    jrm Sledgehammer

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    I won't bother to go back in this thread, because it doesn't really matter, but I thought we had discussed the supreme court's opinion in more detail. Assuming we did not, I'll say it here. They said whether a private entity that leases public property can ban guns on the property is dependent on whether the lease conveys an estate for years or a usufruct. There's no way, of course, to know which it is without reading the lease.

    Maybe the above (if it was previously not understood) formed a disconnect over the MBS discussion. MBS was not just chosen at random. We have leases from multiple venues and MBS is the only one that says, "This is a usufruct and not an estate for years." So that location is the "low hanging fruit," in that it is as close to a no-brainer as you can get. I'm unconcerned about the financial backing the Falcons might bring to the table, or how they might play games or lobby to change things. In fact, if the playing field (no pun intended) is going to change, I'd rather know that sooner and not later, before we chase all these places down.
     
  4. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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  5. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    What is the current status of the Atlanta Botanical Gardens lawsuit? I assume it is back in the trial court. Briefing due or scheduled? Hearings? Just curious to know the status, if you don't mind sharing. No need to share future strategy here publicly, just the current status. Thanks.
     
  6. jrm

    jrm Sledgehammer

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    For reasons I cannot explain or understand, the case sat in the court of appeals on remittitur from the supreme court for several months. I assumed the COA would just remand to the superior court upon receipt of the SCOGA remittitur. When that didn't happen, I filed a motion in the COA to remand. It still was several weeks before they did. Bottom line, the COA just issued its remittitur to the superior court this week. So, nothing of substance has happened since the SCOGA opinion came out.
     
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  7. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    :lol:

    Government.

    I wonder if they do that to all the cases in which they get reversed. ;)


    Thanks for the update, John, and for all the hard work you have poured into this issue on our behalf.
     
    awanatech, rmodel65 and Phil1979 like this.
  8. Janus

    Janus Member

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    I feel like a johnny come lately, but doesn't the whole discussion of Usfruct vs Estate for Years, come from a tax dispute? Usfruct is not taxable, vs estate for years being taxable.

    So, does this mean that Atlanta Botanical Garden, if it is an estate for years, has property ownership interest that is taxable?

    It looks like the Garden is between a rock and a hard place. Either you insist that you are a estate for years and then have a property tax due($423 million current fair market value, which they haven't paid a dime on) or you are a usafruct and can not ban guns.

    I wonder what the millage rate is, in Fulton County? :)
     
    Phil1979 likes this.
  9. jrm

    jrm Sledgehammer

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    The "lease" exempts ABG from paying taxes.
     
  10. Janus

    Janus Member

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    It's almost like declaring that this is a usafruct, without explicitly stating it so. One more support for declaring ABG lease as a usafruct! At least MBS was more upfront about it in it's lease. No matter how long the lease it, if the lease states that it is a usafruct, then no tax liability exists.

    I wonder if Fulton county was a party to the lease with ABG. City of Atlanta may exempt ABG from city's part of the property tax, but I doubt the city can exempt the county portion, unless the county was party to the lease.
     
    Last edited: Mar 23, 2020
  11. Dawgdoc

    Dawgdoc Well-Known Member

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    Just wondering, since they renewed the lease after this case began, why didn't Atlanta just transfer the entire property to the Gardens to moot the whole issue? Is their desire to retain ownership of the property in any way proof that they never meant for it to be an estate for years?

    From my uneducated reading of the briefs, it seems that Atlanta and the Gardens want to create a new type of lease category that doesn't really fit either of the two types already presented.
    Also, part of the Garden's argument seems to be that they wanted to create an estate for years, but somehow the lawyers for the two parties just didn't get the wording quite right, but it's the intent that matters.
     
  12. Nemo

    Nemo Man of Myth and Legend

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    Copied from page 9. Something get lost in translation of item 4 regarding how often the Garden ? ? ?

    Nemo


     
  13. Phil1979

    Phil1979 Member Georgia Carry

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    The Garden claims that since 2000-something (can't recall the exact year), that they've prepared the master plan without input from the City.

    What they failed to mention is that the City reserves the right in the lease to approve or disapprove of the plan. The whole point is that the City maintains tight control of the property and its operations.
     
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  14. Nemo

    Nemo Man of Myth and Legend

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    I'm interested in the rest of that sentence and any following.

    Nemo
     
  15. Phil1979

    Phil1979 Member Georgia Carry

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    The fact that the City has exempted the Garden from paying property taxes in the lease document is an admission that the lease creates a usufruct. The City does not have the authority to exempt an estate for years from paying property tax.

    This should be a decisive win for us, but we'll have to see how the Fulton Superior Court will view it.
     
  16. Nemo

    Nemo Man of Myth and Legend

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    How decisive the rest of the viewing city/county govt considers it is yet to be determined. As far a a slam dunk, sure seems like it to me.

    Nemo
     
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  17. Clark

    Clark Well-Known Member

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    The whole "private property" thing should have been a slam dunk, but activist judges are going to do what they want, not what the law plainly says.
     
  18. Janus

    Janus Member

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    If the garden should win, the taxpayers of Atlanta and Fulton county should sue for back taxes. They could claim that the garden harmed them by not paying taxes, which increased the tax burden on the rest.
     
    rmodel65 likes this.