IN THE SUPERIOR COURT OF GLYNN COUNTY

STATE OF GEORGIA

GAYLE BAKER, DONALD J. BRUNNELLE,

JUDITH A. BRUNNELLE, JANE FRASER,

BURKE MCCALL HARRISON, VICKI S.

HARRISON, JUDITH C. PHILLIPS, ROBERT

W. WILLIAMSON, III, and

RENEE J. WILLIAMSON

Plaintiffs,

v.

OLD PLANTATION GROUP, LLC,

PALMETTO BUILDING GROUP, LLC, and

MORTGAGE OF AMERICA LENDERS,

LLC,

Defendants.

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Civil Action No. _____________________

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

COME NOW Plaintiffs Gayle Baker, Donald J. Brunnelle, Judith A. Brunnelle, Jane

Fraser, Burke McCall Harrison, Vicki S. Harrison, Judith C. Philips, Robert W. Williamson, III

and Renee J. Williamson, by and through their counsel, and submit this Complaint for Damages

and Injunctive Relief, showing the Court as follows:

PARTIES, JURISDICTION AND VENUE

1. Plaintiff Gayle Baker is the owner of real property located at 127 Daufuski Lane

and 131 Daufuski Lane, St. Simons Island, Glynn County, Georgia, 31522, who has and continues

to be affected and damaged by the Defendants’ activities. Ms. Baker has suffered damages to her

person and property as a result of the Defendants’ actions and inactions described in this

Complaint.

2. Plaintiffs Donald J. Brunnelle and Judith A. Brunnelle, whose principal residence

is 251 Villager Dr., St. Simons Island, Glynn County, Georgia, 31522, are the owners and/or

FILED

GLYNN CO. CLERK'S OFFICE

6/3/2019 4:42 PM

CLERK SUPERIOR COURT

CE19-00671

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occupiers of real property that has and continues to be affected and damaged by the Defendants’

activities. Mr. and Mrs. Brunnelle have suffered damages to their persons and property as a result

of the Defendants’ actions and inactions described in this Complaint.

3. Plaintiff Jane Fraser is the owner of real property located at 165 North Harrington

Road, St. Simons Island, Glynn County, GA 31522, who has and continues to be affected and

damaged by the Defendants’ activities. Ms. Fraser has suffered damages to her property as a result

of the Defendants’ actions and inactions described in this Complaint.

4. Plaintiffs Burke McCall Harrison and Vicki S. Harrison, whose principal residence

is 253 Villager Dr., St. Simons Island, Glynn County, Georgia, 31522, are the owners and/or

occupiers of real property that has and continues to be affected and damaged by the Defendants’

activities. Mr. and Mrs. Harrison have suffered damages to their persons and property as a result of

the Defendants’ actions and inactions described in this Complaint.

5. Plaintiff Judith C. Phillips, whose principal residence is 115 Daufuski Lane, St.

Simons Island, Glynn County, Georgia, 31522, is the owner and/or occupier of real property that

has and continues to be affected and damaged by the Defendants’ activities. Ms. Phillips has

suffered damages to her person and property as a result of the Defendants’ actions and inactions

described in this Complaint.

6. Plaintiffs Robert W. Williamson, III and Renee J. Williamson, whose principal

residence is 121 Daufuski Lane, St. Simons Island, Glynn County, Georgia, 31522, are the owners

and/or occupiers of real property that has and continues to be affected and damaged by the

Defendants’ activities. Mr. and Mrs. Williamson have suffered damages to their persons and

property as a result of the Defendants’ actions and inactions described in this Complaint.

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7. Defendant Old Plantation Group LLC (hereinafter “Old Plantation”) is a Florida

limited liability corporation with a principal address at 150 SW 12 Ave., Pompano Beach, Florida

33069. Old Plantation transacts business in Glynn County, Georgia and is or was the owner and/or

developer of the Tabby Place Subdivision (hereinafter “Tabby Place”) located in Glynn County,

Georgia.

8. In accordance with Georgia Code Ann. § 14-2-510, Old Plantation is deemed to

reside in Glynn County and is subject to the venue of this Court. Old Plantation may be served with

process through its registered agent, Bent Cline, who is located at 74 Glenleigh Ct. Suwanee,

Georgia 30024.

9. Defendant Palmetto Building Group LLC (hereinafter “Palmetto”) is a Florida

limited liability company with a principal address at 2487 Demere Road, St. Simon’s Island,

Georgia, 31522. Palmetto transacts business in Glynn County, Georgia and is or was the owner,

developer and/or home builder of Tabby Place located in Glynn County, Georgia.

10. In accordance with Georgia Code Ann. § 14-2-510, Palmetto is deemed to reside in

Glynn County and is subject to the venue of this Court. Palmetto may be served with process

through its registered agent, Jason Tate, who can be found at 2487 Demere Road, Suite 400, St.

Simons Island, Georgia 31522.

11. Defendant Mortgage of America Lenders, LLC, formerly known as Mortgage of

America, Inc., (hereinafter “Mortgage of America”), is a Georgia limited liability company with a

principal address at P.O. Box 2044, Woodstock, Georgia, 30188. Mortgage of America transacts

business in Glynn County, Georgia and is or was the owner and/or developer of the Captain’s

Cove Subdivision (hereinafter “Captain’s Cove”) located in Glynn County, Georgia.

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12. In accordance with Georgia Code Ann. § 14-2-510, Mortgage of America is

deemed to reside in Glynn County and is subject to the venue of this Court. Mortgage of America

may be served with process through its registered agent Emily Bishop, who can be found at 3850

Canton Road, Suite 1110, Marietta, Georgia 30066.

13. The above-named Defendants participated in land disturbance and other

development activities in St. Simons Island, Glynn County, Georgia, adjacent to Plaintiffs’

Property during which Defendants failed to comply with federal, State and local laws and

regulations, thereby discharging storm water onto the Plaintiffs’ Property.

14. Venue is proper in this Court pursuant to the Georgia Constitution of 1983, Article

VI, Section II, Paragraphs III, IV and V; and Georgia Code Ann. §§ 9-10-30 and 14-2-510.

15. This Court has jurisdiction pursuant to the Georgia Constitution of 1983, Article

VI, Section IV, Paragraph I; and Georgia Code Ann. § 15-6-8.

STATEMENT OF FACTS

16. Plaintiffs own property (“Plaintiffs’ Property”) adjacent to and downgradient of the

Tabby Place and Captain’s Cove subdivisions owned and/or developed by Defendants (hereinafter

“the Subdivisions”) in St. Simons Island, Glynn County, Georgia. The term “Plaintiffs’ Property”

includes not only Plaintiffs’ land and improvements and Plaintiffs’ personal property possessed

thereon and/or thereabout, but also the rights of Plaintiffs in relation to their land, improvements

and other property, including without limitation, their right to possess, use, enjoy, and dispose of

their Property and their right to exclude others from using their Property.

17. When it rains, storm water washes over the loose soil on a construction site, along

with various materials and products being stored outside. Storm water runoff is generated from

rain events that flow over land or impervious surfaces, such as paved streets, parking lots, and

building rooftops, and does not soak into the ground.

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18. To protect these natural resources, the Georgia Department of Natural Resources

Environmental Protection Division (hereinafter “EPD”) reissued General Permit GAR No. 100003

“Authorization To Discharge Under The National Pollutant Discharge Elimination System Storm

Water Discharges Associated With Construction Activity for Stand Alone Construction Projects”

(“NPDES General Permit”), effective September 24, 2013,1 which authorizes and regulates the

discharge of storm water into waters of the United States from construction sites in Georgia,

including the Subdivisions.

19. NPDES General Permit coverage must be obtained by submitting a Notice of Intent

to discharge storm water associated with construction activity prior to beginning construction

activities.

20. The NPDES General Permit, the Georgia Erosion and Sedimentation Act, and the

Glynn County Ordinances for Land Disturbing Activities and Soil Erosion, Sedimentation and

Pollution Control all specify that storm water controls, known as Best Management Practices

(“BMPs”), shall be used to prevent or minimize erosion and resultant sedimentation for all

construction activities. These BMPs filter out pollutants and/or prevent pollution by controlling it

at its source.

21. The NPDES storm water program requires permits for discharges from

construction activities that disturb one or more acres of land.

22. The development of Tabby Place and Captain’s Cove Subdivisions involved

clearing of vegetation, filling, grading, and excavation of more than one acre.

23. Land disturbing activities involving clearing, grading or excavation of at least one

acre are regulated by the Georgia Water Quality Control Act, the Georgia Erosion and

1 EPD re-issued NPDES General Permit No. GAR 100001 on May 16, 2018.

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Sedimentation Act, and the Glynn County Ordinances for Land Disturbing Activities and Soil

Erosion, Sedimentation and Pollution Control.

24. The Georgia Manual for On-site Sewage Management Systems require a minimum

of twenty-four (24) inches of vertical separation from the absorption field trench bottom to any

seasonal groundwater table.

A. Tabby Place

25. The Tabby Place Subdivision is an approximately 11.29-acre residential

development located in whole or in part upstream of the Plaintiffs’ Property. The drainage

system utilizes storm pipes and three (3) retention ponds to collect storm water runoff, which is

intended to retain the storm water runoff onsite in the retention ponds so it can infiltrate into the

ground.

26. Palmetto’s Land Disturbance Activity Plans for Tabby Place were approved by the

Satilla Soil & Water Conservation District on February 24, 2015.

27. Palmetto was issued Land Disturbing Activity Permit number 10475 for Tabby

Place on March 25, 2015.

28. Palmetto’s Land Disturbance Activity Plans for Tabby Place include clearing and

tree removal to the limits of disturbance coinciding with the site property boundaries with a note

that no trees shall be removed without the written consent of Palmetto.

29. Prior to preliminary plat approval of Tabby Place, the Glynn County Community

Development Department (“GCCDD”) had concerns about the drainage and water quality for

Tabby Place.

(a) The GCCDD noted on September 2, 2015 that details needed to be determined on

the outfall of the drainage area and, if there was no substantial outfall adequate to

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handle the drainage, then Tabby Place needed to be reconsidered; and that

Brunswick-Glynn County Joint Water and Sewer Commission noted there may be

some downstream upgrades required to the existing wastewater infrastructure to

accommodate the wastewater generated from Tabby Place.

(b) GCCDD further noted on September 23, 2015, that drainage from the rear of Tabby

Place may be an issue; its concern with Tabby Place trying to infiltrate all of the

water into the area reserved for drainage; and that offsite drainage will have to be

accommodated or managed if present.

30. The Brunswick-Glynn County Joint Water and Sewer Commission (“JWSC”)

requested in a letter dated October 20, 2015 that the GCCDD not approve new or additional

developments on St. Simons Island because the applicable pump station was presently operating

above its current calculated peak flow and additional flows from proposed new developments

would further compound the capacity issues.

31. The GCCDD noted on November 10, 2015 that the Tabby Place preliminary plat

did not meet the state and local regulations and ordinances relating to the water and sewer utilities

based on the JWSC’s findings that the water and sewer system lacked the capacity to handle any

additional residential units.

32. The Tabby Place drainage report dated January 13, 2016 states that the drainage

system’s detention ponds will result in no discharge from the Tabby Place site.

33. The GCCDD noted in its review comments dated February 16, 2018 that the Tabby

Place drainage record drawings needed further review because the retention ponds were not

draining as outlined in the drainage calculations and it needed updated retention pond infiltration

data.

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34. One of the GCCDD engineers emailed Palmetto’s owner, Vassa Cate, his concerns

from the Tabby Place revised drainage report and his inspection of the Tabby Place site on March

6, 2018, including but not limited to the inspection’s findings that the groundwater was about six

inches (6”) below the retention pond bottom in the front retention pond and stating that high

groundwater tables and infiltration retention ponds typically do not function well together.

35. Palmetto’s engineer responded to the GCCDD engineer on March 6, 2018,

admitting that the groundwater was up at Tabby Place and stating it was likely due to the Captain’s

Cove development.

36. The GCCDD requested the Glynn County Board of Commissioners to remove

approval of Tabby Place’s final plat from the March 15, 2018 meeting agenda because of

outstanding issues with the drainage system, including but not limited to the infiltration numbers

of the retention ponds that were not as defined as they needed to be.

37. The Tabby Place drainage report addendum revised on March 16, 2018 admits that

the contractor at the beginning of construction over-excavated the retention ponds and filled them

with grass strippings, which were not intended to be placed in the ponds. It further states that the

retention ponds will result in no discharge offsite of Tabby Place.

38. One of the GCCDD engineers continued to note concerns about Tabby Place’s

drainage in March 2018, including but not limited to that the retention ponds have no factor of

safety built into them.

39. The Tabby Place drainage report addendum revised on March 27, 2018 admits that

when the contractor worked on the northwest and northeast detention ponds it did not notify the

engineers to oversee the work; however the contractor stated to the engineers that it replaced the

grass strippings with septic sand. Yet it further states that when the engineers took tests from the

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bottom of the northwest and northeast detention ponds it did not appear to be septic sands, which

the engineers stated could explain the admittedly low infiltration rates for the northern retention

pond. The drainage report addendum concludes that the drainage system’s retention ponds will

result in no discharge offsite of Tabby Place.

40. The Tabby Place drainage report addendum revised on March 28, 2018 states that

the retention ponds will merely reduce the discharge to the downstream basin, which is different

from the drainage reports dated January 13, 2016, March 16, 2018, and March 27, 2018 – just one

day earlier – all of which previously stated that there would be no discharge offsite of Tabby Place.

41. The Tabby Place drainage report addendum revised on January 3, 2019 notes that

the Glynn County Engineer had expressed concerns from the beginning of the design about

discharging flows into the adjacent downstream system and states for the first time that the

drainage design keeps 98% of its runoff storm water onsite – which is different from the drainage

reports dated January 13, 2016, March 16, 2018, and March 27, 2018 – all of which previously

stated that there would be no discharge offsite of Tabby Place.

42. The January 3, 2019 Tabby Place drainage report addendum further states that post

construction observations after a significant amount of rain on St. Simons Island in December

2018 resulted in abnormally high groundwater condition at Tabby Place and standing water

remained in each of the three detention ponds. The addendum also states that the water was not

flowing through the culvert constructed under the new road bisecting the wetland system to the

west constructed for Captain’s Cove.

B. Captain’s Cove

43. The Captain’s Cove Subdivision is an approximately 11.26-acre residential

subdivision, including 3.62 acres of wetlands. Storm water runoff from the Captain’s Cove

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Subdivision flows into the wetlands in the northern portion of the site running east and west, which

ultimately drains by twin twenty-four inch (24”) reinforce concrete pipe (“RCP”) culverts under

North Harrington Road; and into a retention pond which has been determined to be a jurisdictional

wetland.

44. The Captain’s Cove storm water management report dated September 22, 2015

notes known drainage concerns with the wetlands in the northern portion of the site which receives

storm water runoff. It states that construction of Captain’s Cove entrance road across the

wetlands will require cross drains of sufficient capacity to match or exceed the post-development

runoff capacity of the existing 24-inch RCP culverts “so as not to exacerbate any existing

problems.”

45. The Captain’s Cove storm water management report dated September 22, 2015

further states that there is little additional capacity for increased runoff and that post-development

runoff rates must be controlled.

46. The United States Army Corps of Engineers (“Corps”) notified Mortgage of

America on February 2, 2017 of its preliminary jurisdictional determination that the Captain’s

Cove site includes wetlands.

47. The Corps notified Mortgage of America on March 7, 2017 that the Corps

authorized its request for use of Nationwide Permit (“NWP”) Numbers 14 and 18 for impacts to

the wetlands for construction of Captain’s Cove Subdivision and access road valid only if

Mortgage of America complied with certain conditions, including but not limited to: purchase of

2.95 wetland mitigation credits and submitting documentation of this credit purchase; complying

with federal, state and local regulations for this type of construction activity; all work conducted in

accordance with the minimal requirements of the Georgia Erosion and Sedimentation Control Act

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of 1975; and installing and maintaining erosion and sediment control measures in accordance with

the Georgia Erosion and Sedimentation Control Act of 1975.

48. Mortgage of America submitted its Notice of Intent For Coverage under the 2013

Re-Issuance of the NPDES General Permits to Discharge Storm Water Associated With

Construction Activity to the Georgia Department of Natural Resources Environmental Protection

Division dated April 10, 2017.

49. The Captain’s Cove storm water management report revised on August 14, 2017

confirms that the retention pond is a jurisdictional wetland.

50. The Captain’s Cove August 14, 2017 revised storm water management report states

that the storm water management system “endeavors to ensure” that post development runoff is

equal to or less than predevelopment conditions so as not to exacerbate any existing problems.

This is different from the September 22, 2015 storm water management report, which previously

stated that the Captain’s Cover storm water management system “must ensure” that post

development runoff is equal to or less than predevelopment conditions so as to not exacerbate any

existing problems.

51. The Captain’s Cove August 14, 2017 revised storm water management report also

now states that the analyses performed indicates that the existing offsite drainage systems were

adequately sized for the current development conditions; however, post-development runoff rates

should still be controlled so that pre-development runoff rates are not exceeded.

52. Mortgage of America’s construction of Captain’s Cove violated its requirements

under the NPDES General Permit to implement BMPs to prevent or minimize erosion and

resultant sedimentation:

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(a) The NPDES Site Inspection Reports dated January 27, 2018, February 16, 2018

and March 19, 2018 document that Mortgage of America failed to properly

stabilize or protect disturbed areas not actively being worked on; failed to protect

natural resource areas, such as wetlands, with barriers or other similar BMPs; and

failed to adequately install and maintain perimeter controls and sediment barriers.

53. Mortgage of America’s engineer confirmed in an email dated February 26, 2018

that sediment basins and the silt fence were not installed at Captain’s Cove and requested

Mortgage of America to install all BMPs per the erosion and sediment control plan.

54. The GCCDD issued Mortgage of America a Notice to Comply on March 6, 2018,

stating Captain’s Cove violation of the Glynn County Erosion and Sediment Control Ordinance for

failing to install and maintain a silt fence as shown on the approved plans.

55. The GCCDD issued Mortgage of America a Stop Work Order on March 19, 2018

due to lack of BMP installation and “eminent threat to the Waters of State” at Captain’s Cove,

including but not limited to the failure to install a silt fence in violation of the Glynn County

Erosion and Sediment Control Ordinance.

56. Again on March 29, 2018, the GCCDD issued Mortgage of America a Stop Work

Order for failing to complete installation of the silt fence and failing to complete installation of the

detention ponds in violation of the Glynn County Erosion and Sediment Control Ordinance.

57. GCCDD code enforcement officer notified the GCCDD land disturbance engineer

on April 2, 2018 of fencing debris and other tree debris near the construction entrance to Captain’s

Cove which came from the land clearing area, and asked the land disturbance engineer if Mortgage

of America’s contractors would remove the debris as part of the Land Disturbance Permit or if

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GCCDD should move forward with an illegal dump violation by Mortgage of America’s

contractors.

58. The GCCDD engineer notified Mortgage of America on April 12, 2018 that

Captain’s Cove was still not in compliance with the Glynn County Erosion and Sediment Control

Ordinance.

59. Mortgage of America’s construction of Captain’s Cove continued to violate its

requirements under the NPDES General Permit to implement BMPs to prevent or minimize

erosion and resultant sedimentation:

(a) The NPDES Site Inspection Reports for Captain’s Cove dated June 1, 2018 and

June 4, 2018 document that Mortgage of America failed to properly stabilize or

protect disturbed areas not actively being worked on; failed to protect natural

resource areas, such as wetlands, with barriers or other similar BMPs; and failed to

adequately maintain perimeter controls and sediment barriers.

(b) The NPDES Site Inspection Reports dated June 8, 2018 and June 15, 2018

document that Mortgage of America failed to properly stabilize or protect disturbed

areas not actively being worked on.

(c) The NPDES Site Inspection Report dated October 26, 2018 documents that

Mortgage of America failed to properly stabilize or protect disturbed areas not

actively being worked on; and failed to adequately maintain perimeter controls and

sediment barriers.

(d) The NPDES Site Inspection Report dated November 9, 2018 documents that

Mortgage of America failed to properly stabilize or protect disturbed areas not

actively being worked on; failed to protect natural resource areas, such as wetlands,

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with barriers or other similar BMPs; and failed to adequately maintain perimeter

controls and sediment barriers.

(e) The NPDES Site Inspection Reports dated November 16, 2018, November 21,

2018, November 26, 2018 and November 30, 2018 document that Mortgage of

America failed to protect natural resource areas, such as wetlands, with barriers or

other similar BMPs; failed to adequately maintain perimeter controls and sediment

barriers; and failed to properly protect storm drain inlets.

(f) The NPDES Site Inspection Report dated November 30, 2018 documents that

Mortgage of America failed to protect natural resource areas, such as wetlands,

with barriers or other similar BMPs.

60. Defendants have failed to take all reasonable steps necessary to minimize or

prevent excessive storm water discharges as required by the NPDES General Permit and federal,

state and local laws.

61. The NPDES General Permit provides that discharges shall not cause violations of

Georgia’s water quality standards.

62. Defendants’ failure to design, install and/or maintain BMPs caused violations of

Georgia’s water quality standards.

63. Defendants changed the permeable ground cover to impervious surfaces without

adequately containing the resulting increased storm water runoff. Consequently, the amount of

water flowing onto Plaintiffs’ Property from each of Defendants’ Subdivisions is greater than the

amount of water which historically flowed onto Plaintiffs’ Property.

64. Defendants have caused and continue to cause storm water to be repeatedly

collected, concentrated, and discharged onto Plaintiffs’ Property.

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65. During and after significant rain events, storm water submerges portions of

Plaintiffs’ Property underwater. The storm water has damaged and will continue to damage

Plaintiffs’ Property. (See Collective Exhibit A attached hereto.)

66. As a result of their actions and/omissions, Defendants discharged and continue to

discharge excessive storm water onto Plaintiffs’ Property.

67. Defendants’ discharge of excessive storm water onto Plaintiffs’ Property caused

the groundwater table to rise which resulted in the Plaintiffs’ on-site sewage systems to

short-circuit and sanitary discharges including fecal coliform directly entering the ground and

surface waters. (See Exhibit B attached hereto.)

68. Prior to commencement of Defendants’ land disturbing activities at the

Subdivisions, Plaintiffs’ Property was clear and free of any recent or noticeable discharges of

excessive storm water or sewage.

69. After commencement of Defendants’ land disturbing activities at the Subdivisions,

Plaintiffs began to experience significant discharges of storm water onto their Property. They

continue to experience such to this day. These discharges adversely affect Plaintiffs.

70. After commencement of Defendants’ land disturbing activities the Subdivisions,

Plaintiffs observed a significant increase in the volume of water flowing from the Subdivisions

onto their Property during and after significant rain events. Such increased volume of water

continues to flow onto Plaintiffs’ Property during and after rain events to this day, and adversely

affects Plaintiffs.

71. During and after significant rainfall events since grading and paving the new roads

in the Subdivisions, storm water has been and continues to be discharged from the Subdivisions.

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72. Defendants Old Plantation Club and Palmetto own and/or operate the Tabby Place

Subdivision and are directly responsible for the implementation of storm water management and

drainage for the Tabby Place Subdivision, including without limitation, storm water collection,

detention, and discharge facilities.

73. Defendant Mortgage of America owns and/or operates the Captain’s Cove

Subdivision and is directly responsible for the implementation of storm water management and

drainage for the Captain’s Cove Subdivision, including without limitation, the storm water

collection, detention, and discharge facilities.

74. Defendants have authorized and constructed the storm water management facilities

on the Subdivisions upgradient of Plaintiffs’ Property, which impound concentrated storm water

runoff and allow that storm water to discharge onto Plaintiffs’ downgradient Properties.

75. The increased volume of storm water flowing onto the Plaintiffs’ Property are the

result of the negligent design of the storm water drainage system by the Defendants.

76. The increased volume of storm water flowing onto the Plaintiffs’ Property are the

result of the negligent installation, implementation, and maintenance of the storm water drainage

system by the Defendants.

77. The increased volume of storm water flowing onto the Plaintiffs’ Property is also

the result of the Defendants’ failure to employ Best Management Practices during land disturbing

activities at as well as subsequent construction of the Subdivisions, and as a result of the

Defendants’ failure to comply with federal, State and local laws.

78. Prior to filing this lawsuit, Plaintiffs complained to Defendants about the storm

water discharges onto their Property, which interfere with Plaintiffs’ Property ownership and use

and impair Plaintiffs’ Property value.

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79. Plaintiffs never consented to Defendants’ use of their Property to dispose of storm

water.

80. Defendants’ discharges of storm water onto the Plaintiffs’ Property constitute a

continuing and abatable nuisance and trespass, which are causing irreparable damage, and for

which Plaintiffs have no adequate remedy at law.

81. The storm water discharged to Plaintiffs’ Property impaired and continues to

impair Plaintiffs’ use and enjoyment of their Property.

82. Defendants failed or refused to abate the discharges of storm water onto Plaintiffs’

Property, prior to the date Plaintiffs filed this Complaint, despite Plaintiffs’ request that

Defendants abate the discharges.

83. Defendants have failed or refused to abate Plaintiffs’ Property value loss and other

damage and injury caused by the discharges of storm water onto Plaintiffs’ Property.

84. Defendants are liable to Plaintiffs for excessive discharges of storm water onto

Plaintiffs’ Property.

COUNT ONE -- NUISANCE

85. Paragraphs 1 through 84 are hereby incorporated by reference as if rewritten in

their entirety.

86. Plaintiffs are entitled to the full use and enjoyment of their Property free from

Defendants’ interferences as set forth in this Complaint.

87. Construction of and land disturbing activities at Defendants’ Subdivisions have

resulted in discharges of excessive volumes of storm water onto Plaintiffs’ Property, causing

flooding and other property damage. Defendants’ interference with Plaintiffs’ property rights is

substantial, material and unreasonable.

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88. These discharges of excessive volumes of storm water have occurred to such an

extent as to unreasonably and substantially interfere with Plaintiffs’ use and enjoyment of their

Property as they see fit, resulting in the creation and maintenance of a nuisance.

89. This nuisance will continue until Defendants are compelled to abate the nuisance

by altering damaging development practices and conditions, and performing sufficient remedial

corrective and clean-up activities to restore the Plaintiffs’ Property and wetlands to their original,

pre-development conditions.

90. Plaintiffs are injured by their property value loss and injury to their peace, resulting

from Defendants’ continuing abatable nuisance, the discharges of storm water onto Plaintiffs’

Property.

91. Plaintiffs have suffered pecuniary and property damages as a result of Defendants’

actions and/or omissions and should be compensated in an amount and manner to be determined at

trial.

COUNT TWO -- TRESPASS

92. Paragraphs 1 through 91 are hereby incorporated by reference as if rewritten in

their entirety.

93. Defendants have caused and contributed to the continued and repeated invasion of

Plaintiffs’ Property by the excess volumes of storm water during and after rain events.

94. Plaintiffs never sanctioned, permitted or authorized Defendants’ use of their

Property to dispose of storm water.

95. Plaintiffs specifically instructed Defendants to stop the flooding of and discharge of

excess volumes of storm water onto Plaintiffs’ Property from the Subdivisions, but Defendants

failed and refused to abate such conduct.

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96. The storm water discharged onto Plaintiffs’ Property as a result of Defendants’

actions and/or omissions unreasonably interfere with Plaintiffs’ exclusive rights of possession of

their Property.

97. The storm water discharged onto Plaintiffs’ Property as a result of Defendants’

actions and/or omissions constitute a continuing abatable trespass by the Defendants.

98. Because of Defendants’ continuing abatable trespass, Plaintiffs are entitled to an

injunction against Defendants requiring them to take corrective action to reduce or redirect the

excessive volumes of storm water discharges onto Plaintiffs’ Property.

99. As a result of these trespasses, Plaintiffs have suffered injuries, pecuniary loss and

property damages as a result of Defendants’ actions and/or omissions and should be compensated

in an amount and manner to be determined at trial.

COUNT THREE -- NEGLIGENCE

100. Paragraphs 1 through 99 are hereby incorporated by reference as if rewritten in

their entirety.

101. Defendants have acted negligently by allowing excessive amounts of storm water

to flow from their Subdivisions onto Plaintiffs’ Property, resulting in flooding and other property

damage.

102. Defendants are owners, operators, or builders of the Subdivisions who have a duty

to construct and development the Subdivisions in a manner that does not injure Plaintiffs’

Property.

103. Defendants breached this duty by failing to design, install and maintain storm water

management facilities which are causing excessive volumes of storm water to be discharged from

the Subdivisions onto Plaintiffs’ Property, which have resulted in continuing damage to Plaintiffs’

Property.

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104. Defendants’ actions are the proximate cause and cause in fact of damages to

Plaintiffs’ Property.

105. The doctrine of res ipsa loquitur entitles Plaintiffs to a presumption of Defendants’

negligence because Plaintiffs did not cause or contribute to their damage and injury, because

Plaintiffs’ damage and injury ordinarily would not have occurred in the absence of Defendants’

negligence and because Defendants at all times exercised exclusive control and authority over

whether Defendants would dispose of storm water runoff from the Subdivisions by discharging it

to Plaintiffs’ Property.

106. As a result of Defendants’ actions and/or omissions, Plaintiffs have suffered

property value loss and injury.

107. Due to Defendants’ negligence, Plaintiffs are entitled to an injunction requiring

Defendants to take corrective action to repair Plaintiffs’ Property and to take corrective action to

reduce or redirect the excessive volumes of storm water discharges onto Plaintiffs’ Property.

108. Plaintiffs have suffered injuries, pecuniary loss and property damages as a result of

Defendants’ actions and/or omissions and should be compensated in an amount and manner to be

determined at trial.

COUNT FOUR -- NEGLIGENCE PER SE

109. Paragraphs 1 through 108 are hereby incorporated by reference as if rewritten in

their entirety.

110. Defendants were required to conform their development and construction conduct

to applicable state and local legal requirements, including without limitation the Georgia Water

Quality Control Act, the Georgia Waste Control Act, the Georgia Erosion and Sedimentation Act

of 1975, the Glynn County Soil Erosion and Sedimentation Control Ordinance and the regulations

promulgated pursuant to these statutes and regulations.

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111. Plaintiffs are members of the class of persons for whom the legal requirements

applicable to Defendants’ conduct were designed to protect.

112. Plaintiffs’ damage and injury are the types of damage and injury that legal

requirements applicable to Defendants’ conduct were designed to guard against.

113. Defendants’ actions and/or omissions in the course of land disturbing and

construction activities have violated the state and local laws applicable to land disturbing activities

and to the collection, concentration and discharge of storm water, and thereby breaching their

duties owned to Plaintiffs.

114. Defendants’ conduct hereinabove described is the actual and proximate cause of

Plaintiffs’ Property damage and injury.

115. Defendants’ violation of these applicable laws is evidence of negligence per se.

116. Due to Defendants’ negligence per se, Plaintiffs are entitled to an injunction

requiring Defendants to take corrective action to repair Plaintiffs’ Property and to take corrective

action to reduce or redirect the excessive volumes of storm water discharges onto Plaintiffs’

Property.

117. Because of the Defendants’ negligence per se, Plaintiffs have suffered damages and

should be compensated in an amount and manner to be determined at trial.

COUNT FIVE -- RIPARIAN RIGHTS

118. Paragraphs 1 through 117 are hereby incorporated by reference as if rewritten in

their entirety.

119. Defendants’ actions and/or omissions in the course of their activities on their

Subdivisions have resulted in violations of Georgia Code Annotated § 44-8-1, which provides that

no landowner may so adulterate running water so as to interfere with its enjoyment by the next

owner.

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120. Defendants’ actions and/or omissions development and construction activities at

their Subdivisions have resulted in the adulteration and degradation of waters, which flow onto

Plaintiffs’ Property thereby interfering with Plaintiffs’ uses of their Property.

121. Plaintiffs have suffered damages as a result of Defendants’ violations of Plaintiffs’

riparian rights in connection with the Subdivisions, and should be compensated in an amount and

manner to be proven at trial.

COUNT SIX -- UNJUST ENRICHMENT

122. Paragraphs 1 through 121 are hereby incorporated by reference as if rewritten in

their entirety.

123. Defendants have no agreement or contract with Plaintiffs regarding the use of

Plaintiffs’ Property for disposal of storm water from their Subdivisions.

124. Defendants have been, and continue to be, conferred benefits at the expense of

Plaintiffs by Defendants’ intentional use of Plaintiffs’ Property for disposal of storm water from

the Subdivisions.

125. Defendants have knowingly accepted, and do continue to knowingly accept, the

benefits resulting from their use of Plaintiffs’ Property.

126. Defendants’ use of Plaintiffs’ Property improved and enhanced the value of

Defendants’ pecuniary interests, and/or other interests in and related to the Subdivisions.

127. The benefits conferred referred to above have and do unjustly enrich Defendants at

Plaintiffs’ expense, and therefore Plaintiffs ought to be compensated therefore, and/or those

benefits equitably ought to be returned to Plaintiffs.

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128. Restitution should be made to Plaintiffs from Defendants for their unjust

enrichment in an amount equal to the value of the benefits conferred upon Defendants from

Plaintiffs.

COUNT SEVEN -- INJUNCTIVE RELIEF

129. Paragraphs 1 through 128 are hereby incorporated by reference as if rewritten in

their entirety.

130. Plaintiffs seek a preliminary injunction seeking the immediate injunctive relief

necessary to prevent further irreparable harm to their Property from the flooding and excessive

discharges of storm water.

131. Plaintiffs are entitled, under this Court’s powers of equity and Georgia law to both

preliminary and permanent injunctions requiring:

(a) Immediate design, installation and maintenance of measures by the Defendants to

prevent further damage to Plaintiffs’ Property;

(b) Ordering Defendants to restore the biological, chemical, ecological, recreational,

structural and aesthetic integrity of Plaintiffs’ Property;

(c) Ordering all Defendants to design and install adequate measures to abate the

continuing nuisance and continuing abatable trespass on Plaintiffs’ Property;

(d) Ordering that all future construction activity on the Subdivisions be carried out in

strict compliance with all applicable laws; and

(e) Such other relief as the Court deems appropriate.

132. In addition, Plaintiffs seek permanent injunctive relief requiring all Defendants to

restore and remediate Plaintiffs’ Property and to effectuate changes to the Subdivisions necessary

to prevent further harm to Plaintiffs’ Property.

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COUNT EIGHT – ATTORNEYS’ FEES UNDER GEORGIA CODE § 13-6-11

133. Paragraphs 1 through 132 are hereby incorporated by reference as if rewritten in

their entirety.

134. Defendants have caused Plaintiffs unnecessary trouble and expense. Accordingly,

Plaintiffs are entitled to recover their attorneys’ fees and costs of litigation under Georgia Code

Annotated § 13-6-11.

WHEREFORE, Plaintiffs respectfully request that:

(a) This Court order service of process issued as authorized by law;

(b) That Plaintiffs have a trial by jury on all claims contained herein;

(c) This Court temporarily and permanently enjoin the Defendants from committing

any further violations of State and other applicable laws and the regulations

promulgated pursuant to those laws, from continuing any trespasses onto Plaintiffs’

Property, and from continuing to maintain a nuisance on Plaintiffs’ Property;

(d) This Court order the Defendants to restore the biological, chemical, ecological,

recreational, structural and aesthetic integrity of Plaintiffs’ Property affected by the

discharges complained of herein;

(e) Make restitution to Plaintiffs by disgorging Defendants of their unjust enrichment

and handing over the value of those benefits to Plaintiffs;

(f) Ordering Defendants to remove the storm water that the Defendants have

discharged and continue to unlawfully discharge onto Plaintiffs’ Property, to repair

the portions of Plaintiffs’ Property damaged by the flooding caused by the

excessive discharges of storm water, and award Plaintiffs mesne profits for the

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entire time period during which Defendants unlawfully possessed portions of

Plaintiffs’ Property;

(g) That judgment for compensatory damages be awarded in favor of Plaintiffs and

against Defendants in an amount to be proven at trial;

(h) That, pursuant to George Code Annotated § 13-6-11, an award of costs of litigation,

including reasonable attorney’s fees, expert witness fees, and court costs be

awarded in favor of Plaintiffs and against Defendants in an amount to be proven at

trial; and

(i) That Plaintiffs have such other and further relief as this Court deems just and

equitable.

Respectfully submitted this 3rd

day of June, 2019

/s/ E. Righton J. Lewis

E. Righton J. Lewis

Georgia Bar No. 215211

BUTLER SNOW LLP

1170 Peachtree Street NE

Suite 1900

Atlanta, Georgia 30309

(678) 515-5064 Telephone

(678) 515-5001 Facsimile

Righton.Lewis@butlersnow.com

Melody McAnally (pro hac vice application to be

submitted)

Tennessee Bar No. 25971

Michael I. Less (pro hac vice application to be

submitted)

Tennessee Bar No. 8170

BUTLER SNOW LLP

6075 Poplar Avenue

Suite 500

Memphis, TN 38119

(901) 680-7322 Telephone

(901) 680-7201 Facsimile

Melody.McAnally@butlersnow.com

Mike.Less@butlersnow.com