CLERK OF SUPERIOR COURT

MORGAN COUNTY, GEORGIA

2022-SU-CA-205
IN THE SUPERIOR COURT OF MORGAN COUNTY
STATE OF GEORGIA NOV 16, 2022 04:28 PM

EDWARD CLAY; CANDACE BEAM;

ALAN D. JENKINS; A. FELTON JENKINS
III; and DEBORAH CROWE,
Civil Action File No. 2022-SU-CA-205
Plaintiffs,

v.

CHUCK JARRELL; BENJAMIN RIDEN,

JR.; WILBUR “BILL” KURTZ; DONALD B.
HARRIS; ANDY AINSLIE; PHILLIP VON
HANSTEIN; MORGAN COUNTY,
GEORGIA; JOINT DEVELOPMENT
AUTHORITY OF JASPER COUNTY,
MORGAN COUNTY, NEWTON COUNTY,
AND WALTON COUNTY; and PLATEAU
EXCAVATION, INC.,

Defendants.
v.

STATE OF GEORGIA,

Intervenor-Defendant.

INTERVENOR-DEFENDANT STATE OF GEORGIA’S AND DEFENDANT

JOINT DEVELOPMENT AUTHORITY OF JASPER COUNTY, MORGAN COUNTY,
NEWTON COUNTY AND WALTON COUNTY’S JOINT POST-HEARING BRIEF
IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER
AND/OR PRELIMINARY INJUNCTION
 TABLE OF CONTENTS

I. PLAINTIFFS FAILED TO SHOW THEY ARE SUBSTANTIALLY

LIKELY TO SUCCEED ON THE MERITS. ............................................................... 3
A. Plaintiffs Conceded There Is No Applicable Waiver Of The State’s
Sovereign Immunity............................................................................................. 4
B. Plaintiffs’ Claims Are Also Barred By The JDA’s Sovereign
Immunity. ............................................................................................................. 5
C. Local Ordinances Do Not Apply To State Owned Property And
Economic Development Is A Government Purpose.......................................... 6
II. PLAINTIFFS FAILED TO DEMONSTRATE IRREPARABLE HARM
WILL RESULT IF A PRELIMINARY INJUNCTION IS NOT GRANTED. ........ 10
A. Any Harm Plaintiffs Demonstrated Is Not Irreparable. ................................ 10
B. The Harms Plaintiffs Claim Would Not Be Redressed By The
Injunction They Requested. .............................................................................. 12
III. PLAINTIFFS FAILED TO SHOW THEIR HARM OUTWEIGHS THE
LIKELY HARM TO THE STATE AND JDA. .......................................................... 15
IV. PLAINTIFFS’ REQUESTED REMEDY IS EXTRAORDINARY AND
WOULD DISRUPT THE STATUS QUO ................................................................... 18

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 Intervenor-Defendant the State of Georgia (the “State”), together with Defendant the Joint

Development Authority of Jasper County, Morgan County, Newton County, and Walton County

(the “JDA”) jointly submit this Post-Hearing Brief in further Opposition to Plaintiffs’ Motion for

Temporary Restraining Order and/or Preliminary Injunction and respectfully submit as follows:

INTRODUCTION

On the law and facts, Plaintiffs fell far short of their burden to demonstrate a clear and

urgent case warranting the extraordinary remedies sought—a temporary restraining order or

preliminary injunction. As a matter of law, Plaintiffs are not substantially likely to succeed on the

merits. Plaintiffs conceded that the State is protected by sovereign immunity on the alleged claims.

In light of the State’s intervention in the lawsuit pursuant to O.C.G.A. § 9-11-24(a)(2), the State’s

sovereign immunity bars all four claims alleged by Plaintiffs.

Additionally, Plaintiffs assert claims for which no relief can be had. Simply put, neither

the State nor the JDA are subject to county regulatory authority. Plaintiffs failed to identify any

case applying local zoning, development, or building codes to State-owned property. Instead, they

resort to inapplicable authority from wholly different contexts and an overly-narrow interpretation

of applicable authority. But Georgia law is clear: State-owned property is exempt from local

regulations that would otherwise apply to a broad range of activities ranging from the sale of

alcohol at hotels to the sale of fruits in a farmer’s market to private advertisements on bus benches.

As a development authority established by state law which does not waive sovereign immunity,

the JDA is equally immune. Thus, the critically time-sensitive development of an electric vehicle

manufacturing facility on State-owned property, which promises billions of dollars in private

investments and the creation of thousands of jobs, is not subject to local regulations.

On the facts, Plaintiffs failed to show they are likely to suffer irreparable harm or that any

harm they do suffer will outweigh the harm to Defendants by entering a preliminary injunction.

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Plaintiffs’ evidence of harm was exceedingly thin, and the evidence showing any such harm could

only be redressed by their requested preliminary injunction was even thinner. One single plaintiff

testified to limited instances of harm he had suffered – a discolored icemaker, dirty pool filter

backwash, and dirty well water filters. Another plaintiff did not even appear at the hearing. Rather

than testifying, two other plaintiffs chose to rely on a total of five sentences in their Verified

Petition For Writ of Mandamus and Complaint for Declaratory and Injunctive Relief (“Complaint”

or “Compl.”). Plaintiffs introduced a series of photographs purporting to show dust and piles of

dirt on the State-owned property but offered no explanation for how they contend those

photographs support the need for extraordinary relief to protect their property. On the other hand,

the State and JDA’s evidence demonstrated that Plaintiffs’ requested injunction would not remedy

the environmental harms they claim to suffer. To the contrary, the construction currently in

progress will serve to protect neighboring properties, and stopping it before completion will

increase the risk of the very harms Plaintiffs claim to be concerned about. At the same time, an

injunction would cause significant harm to Defendants and may even unravel a historic

development project for the State. The State and JDA offered substantial evidence of the likely

harm they would suffer if Plaintiffs’ preliminary injunction is granted, including the real threat of

Rivian Automotive, Inc. (together with Rivian Horizon, LLC, “Rivian”) looking to other states to

meet its critical production schedule. If that happens, the State stands to lose billions of dollars in

investment and thousands of jobs for the local community, having already spent over $70 million

in furtherance of the project.

The balance of the equities plainly favors Defendants. The State and JDA are working to

bring a historic investment to the economies of Georgia and local communities. In the process of

doing so, they have hosted numerous community forums, sought multiple state and federal permits

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to protect the local environment, hired professionals to supervise construction and compliance with

those permits, and, to the detriment of the project, limited the time in which construction activities

occur in order to minimize disturbance to Plaintiffs and other surrounding neighbors. This is

contrasted with Plaintiffs’ admitted strategy of omitting the State from the Complaint in an attempt

to end-run around the State’s sovereignty. Plaintiffs’ cynical litigation strategy proves they are

not interested in protecting their property, but rather limiting the State’s ability to develop property

it rightfully owns. The law and equity do not permit such a result.

For the reasons set forth below, Plaintiffs’ Motion for Preliminary Injunction and/or

Temporary Restraining Order (the “Motion”) should be denied.

ARGUMENT

I. Plaintiffs Failed To Show They Are Substantially Likely To Succeed On The Merits.

Plaintiffs failed to demonstrate they are substantially likely to succeed on the merits of their

claims for two primary reasons. First, this Court permitted the State to intervene based on the

State’s palpable interests in issues involved in the action, and Plaintiffs admitted there is no

applicable waiver of sovereign immunity that would allow them to bring the specific claims they

have alleged against the State.1 Second, even if sovereign immunity did not preclude Plaintiffs’

claims in their entirety, Plaintiffs’ claims would also fail because Georgia law consistently holds

local regulations and ordinances do not apply to State-owned property (or JDA-owned property).

Because Plaintiffs’ claims will ultimately fail, they have not met their burden to show a substantial

likelihood of success.

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Plaintiffs’ Motion to Add Additional Parties (the “Motion to Add”) is still pending, and Plaintiffs
argue that adding individual defendants acting on behalf of the State would somehow avoid the
State’s sovereign immunity. The State will oppose the Motion to Add in due course, but it has no
bearing on the pending Motion as Plaintiffs conceded (as they must) they have not sought
preliminary injunctive relief against any individuals acting on behalf of the State.

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 A. Plaintiffs Conceded There Is No Applicable Waiver Of The State’s Sovereign
Immunity.

In oral argument opposing the State’s Motion to Intervene, Plaintiffs’ counsel expressly

conceded there is no valid waiver of sovereign immunity for the four Counts Plaintiffs alleged.

Indeed, Plaintiffs admitted the only reason they did not name the State in their Complaint was

because the State is protected by sovereign immunity. Now that the State has been permitted to

intervene, and Plaintiffs have conceded there is no valid waiver of sovereign immunity for any of

their claims, Plaintiffs cannot show they are substantially likely to succeed on the merits.2

While Plaintiffs argued it would be unfair or inequitable to allow the State to intervene

solely to then assert sovereign immunity, such a result is the only logical way the law can prevent

the very gamesmanship Plaintiffs attempted here. If it were true that a plaintiff could simply file

a claim implicating the State’s rights, omit the State as a party, and then bar the State from asserting

sovereign immunity when it intervened, plaintiffs would effectively be able to maneuver around

the State’s sovereignty with creative (or deceptive) pleadings. That cannot be, and is not, the law.

See Republic of Philippines v. Pimentel, 553 U.S. 851, 867 (2008) (“A case may not proceed when

a required-entity sovereign is not amenable to suit. . . . [W]here sovereign immunity is asserted,

and the claims of the sovereign are not frivolous, dismissal of the action must be ordered where

there is a potential for injury to the interests of the absent sovereign.”). The Georgia Constitution

2
In response to the Court’s question at the hearing, Plaintiffs’ counsel referenced cases not
previously cited in their Motion. It is unclear how those cases could possibly apply here. See,
e.g., City of Hapeville v. Sylvan Airport Parking, LLC, 359 Ga. App. 448 (2021) (holding sovereign
immunity did not bar a declaratory judgment claim against a municipality in light of an explicit
statutory waiver, but that municipal sovereign immunity did bar the plaintiff’s claim for injunctive
relief where no statutory waiver applied.); Mayor & Aldermen of Savannah v. Herrera, 343 Ga.
App. 424 (2017) (holding that it was a jury question whether a statutory waiver of municipal
sovereign immunity relating to the maintenance of public roads was triggered based on alleged
defects at issue).

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guarantees sovereign immunity to the State, and other State-created entities such as a development

authorities, absent an express constitutional or statutory waiver. Ga. Const. of 1983, Art. I, § II,

¶ IX(e). In other contexts, for other claims, there are valid waivers of sovereign immunity

available to plaintiffs. See, e.g., Gatto v. City of Statesboro, 312 Ga. 164, 168 (2021) (discussing

“principle that municipalities may be liable for creating or maintaining a nuisance”). But plaintiffs

bear the burden of demonstrating such a waiver. Dep’t of Transp. v. Mixon, 312 Ga. 548, 550

(2021) (“‘The burden of demonstrating a waiver of sovereign immunity rests upon the party

asserting it.’”) (citations omitted). Here, Plaintiffs conceded there is no applicable waiver of

sovereign immunity, and therefore their claims are not substantially likely to succeed.

B. Plaintiffs’ Claims Are Also Barred By The JDA’s Sovereign Immunity.

In addition to the State, the JDA is also entitled to sovereign immunity. A joint

development authority is a governmental entity, and it is therefore exempt from local zoning

requirements. The Court of Appeals considered this issue in Macon-Bibb County Hospital

Authority v. Madison, 207 Ga. App. 741 (1992). There, the court held development authorities

are governmental entities entitled to “immunity from local zoning regulations when such an entity

is in the exercise of its governmental functions.” Id. at 742. Development authorities like the one

in Macon-Bibb County Hospital Authority and the JDA here are established pursuant to O.C.G.A

§ 36-62-1, et. seq. In creating these development authorities, the General Assembly established

they “[are] created for nonprofit and public purposes, . . . and declared that the creation of each

such authority and the carrying out of its corporate purposes is in all respects for the benefit of the

people of this state . . . and will be performing an essential governmental function in the

exercise of the power conferred upon it by this chapter.” O.C.G.A § 36-62-3 (emphasis added).

All the activities alleged in the Complaint, including leasing and land development activities, are

authorized under the development authorities’ implementing laws. O.C.G.A § 36-62-2(6). They

5
are, therefore, essential governmental functions. As a result, in addition to the State’s immunity,

the JDA is protected by sovereign immunity.

C. Local Ordinances Do Not Apply To State Owned Property And Economic

Development Is A Government Purpose.

Plaintiffs do not dispute that as a “general rule[,] in their use of land a state government

and its agencies are immune from operation of local zoning regulations.” Macon Ass’n for

Retarded Citizens v. Macon-Bibb Cnty. Planning & Zoning Comm’n, 252 Ga. 484, 488 (1984)

(recognizing “that since the state and its units and agencies occupy a superior position to

municipalities in the governmental hierarchy, their exemption from municipal zoning regulation

is a matter of preemption”). Rather, they contend the Property3 is not subject to this general rule

and is obligated to comply with the Local Ordinances because the Property is not being used for a

necessary government purpose. This overly-narrow interpretation is at odds with Georgia law.

In the context of government-owned property, a necessary government purpose is broadly

construed, often without any analysis at all. Fruit stands, sales of alcohol, and private signage on

benches all have been found to be a “necessary government purpose” such that the property owned

by a State or County is not subject to local regulation. Newton v. City of Atlanta, 189 Ga. 441

(1939) (city taxes could not be imposed on private dealers selling fruit at State-owned farmer’s

market); Glynn Cnty. v. Davis, 228 Ga. 588 (1972) (local alcohol licensing did not apply to alcohol

sales on State-owned property); Bd. of Comm’rs of Chatham Cnty. v. Chatham Advertisers, 258

Ga. 499 (1988) (local advertising regulations did not apply to advertising company’s signs on

State-owned bus benches).

3
Defined terms have the same meaning as in the State’s Response to Plaintiffs’ Motion.

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 In light of these directly-on-point authorities, at the hearing, Plaintiffs turned to Georgia

law regarding condemnation to argue that economic development is not a governmental purpose.

There is no basis to argue by analogy to Georgia law in different contexts (e.g., condemnation)

when there is authority directly on point. This is not a condemnation case, Georgia law does not

limit sovereign immunity to condemnation cases, and only in condemnation cases has economic

development been carved out as a valid governmental purpose. See Ga. Const. Art. I, § III, ¶ 1.

The State owns the Property and has leased it to another sovereign, the JDA. Plaintiffs’ property

is not being condemned. In fact, each of the parcels that make up the Property were voluntarily

sold to the JDA and title was subsequently transferred to the State before being leased back to the

JDA.

Plaintiffs wholly ignore that the General Assembly created development authorities like

the JDA specifically for the public, governmental purpose of economic development:

Each authority created by this chapter is created for nonprofit and public purposes,
and it is found, determined, and declared that the creation of each such authority
and the carrying out of its corporate purposes is in all respects for the benefit of the
people of this state and that the authority is an institution of purely public charity
and will be performing an essential governmental function in the exercise of the
power conferred upon it by this chapter.

O.C.G.A. § 36-62-3; see also O.C.G.A. § 36-62-5.1 (joint development authorities to be governed

in the “same manner”). Economic development authorities like the JDA were created “to develop

and promote trade, commerce, industry, and employment opportunities for the public good and the

general welfare and to promote the general welfare of the state.” O.C.G.A. § 36-62-9. Similarly,

the Georgia Department of Economic Development, the state agency primarily responsible for the

Rivian Project, was created in recognition of the fact that the State “substantially benefits from the

consumption of goods and products manufactured in Georgia,” O.C.G.A. § 50-7-80, and to further

“the public purposes of development of trade, commerce, industry, and employment opportunities

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at the state and local levels,” O.C.G.A § 50-7-3(c). The Georgia Department of Economic

Development is expressly authorized to “acquire real property and to construct, operate, and

maintain such projects as are beneficial to the development of industry, trade, and tourism and to

create economic and employment opportunities in the state.” O.C.G.A § 50-7-16(b). It is also

authorized to “enter into agreements to lease, rent, or convey the real property of any such project

with any person in order to accomplish such goals and upon such other terms and conditions as

the department may determine to be necessary or convenient for such substantial public benefit.”

Id. Thus, just like the fruit stands, alcohol sales, and signage on park benches, the Rivian Project

being developed by the State and JDA serves a governmental purpose and is not subject to local

regulations. In fact, the instant case provides an even more compelling purpose because the

proffered governmental purpose—promoting economic and employment opportunities—is

explicitly codified as the recognized governmental purpose of the JDA and the State’s Department

of Economic Development.

Plaintiffs’ reliance on GeorgiaCarry.Org., Inc. v. Atlanta Botanical Garden, Inc., 306 Ga.

829 (2019) is similarly misplaced. Plaintiffs argued that because the State leased the Property to

the JDA for a term of 25 years and with the intent of creating an estate for years, the State’s

Property is therefore subject to the Local Ordinances. Pls. Supp. Br. ISO Motion for TRO and/or

Prelim. Inj. (the “Supplemental Brief”) at 3. However, GeorgiaCarry.Org did not involve state-

owned property, local zoning or building codes, or sovereign immunity. Instead,

GeorgiaCarry.Org involved the interpretation of specific statutory language in a criminal statute

as applied to the Atlanta Botanical Garden, a private non-profit corporation, that leased land from

the City of Atlanta. Specifically, the court interpreted whether the Atlanta Botanical Garden

qualified as “private property” for purposes of O.C.G.A § 16-11-127(c) which allowed owners of

8
“private property” to exclude persons in possession of a weapon. Id. at 835. In that context, the

Georgia Supreme Court held “if [a] lease creates an estate for years, the present estate in the

property passes from the landlord/grantor to the tenant/grantee for the duration of the lease, and

the tenant/grantee is treated by our law as the owner of the property for that period of time.” Id.

at 838-39. On remand, the trial court found that a lease from the City of Atlanta to the Atlanta

Botanical Garden created an estate for years, not a usufruct, and therefore the Garden was properly

construed as “private property for purposes of O.C.G.A. § 16-11-127 (c), allowing the Garden to

exclude weapons.” GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 362 Ga. App. 413,

421 (2022). This holding is limited to the interpretation of “private property” as used in

O.C.G.A. § 16-11-127. There is no mention of application of local zoning, sovereign immunity,

or any other issue in common with the instant lawsuit. Certainly, GeorgiaCarry.Org. does not

overrule Macon Association for Retarded Citizens which held “property owned by the state or

county, and used for a governmental purpose, is exempt from municipal zoning regulation,

whether or not the property is acquired by eminent domain or by bargain and sale.” 252 Ga. at

489.

By contrast, the cases holding local ordinances do not apply to State-owned property do

not inquire into or analyze the nature of the private businesses’ ownership interest. However, in

dicta in Glynn County, the Georgia Supreme Court explained Jekyll Island was leased by the State

“for 99 years” to the Jekyll Island State Park Authority, “a body corporate and politic by the

General Assembly and declared to be an instrumentality of the State and a public corporation. . . .”

228 Ga. 591. A lease for 99 years is presumed to be an estate for years, not a usufruct.

GeorgiaCarry.Org, Inc., 306 Ga. at 840. And yet, the Supreme Court made no mention of whether

the Jekyll Island State Park Authority held an estate of years or a usufruct in determining whether

9
local alcohol licensing regulations applied to alcohol sales on the island. Moreover, contrary to

Plaintiffs’ argument at the hearing, the Jekyll Island State Park Authority and the JDA have nearly

identical statutory origins. Like the Jekyll Island State Park Authority that was created by the

General Assembly as a body corporate and politic, so too was the JDA. See O.C.G.A. § 36-62-

4(a) (creating “in and for each county and municipal corporation in the state a public body

corporate and politic to be known as the ‘development authority’ of such county or municipal

corporation.”). Similarly, the JDA was created for “public purposes” and “is in all respects for the

benefit of the people of this state . . . performing an essential governmental function.”

O.C.G.A. § 36-62-3.

In sum, Defendants cite numerous cases directly on point with the claims Plaintiffs alleged.

Under that authority, economic development is clearly a governmental purpose sufficient to

exempt construction of an automobile manufacturing plant from application of the Local

Ordinances. Plaintiffs’ narrow interpretation of a governmental purpose is directly refuted by the

cases themselves, and their reliance on authority in different contexts is a red herring.

II. Plaintiffs Failed To Demonstrate Irreparable Harm Will Result If A Preliminary

Injunction Is Not Granted.

A. Any Harm Plaintiffs Demonstrated Is Not Irreparable.

Plaintiffs failed to demonstrate any irreparable harm likely to result from ongoing

construction activity at the Property. The evidence presented by Plaintiffs was minimal. Mr. Clay

explained he had discoloration in his icemaker, and his pool filter needed to be backwashed more

frequently due to dust. He did not offer any evidence that his discolored icemaker was caused by

activities at the Property. Mr. Clay suggested the icemaker was contaminated vis-à-vis his well

water, but he did not testify to any impacts on other plumbing fixtures at his house. He offered no

evidence of excessive dust accumulated on his windows, porch, cars, or anywhere else on his

10
property, only in his pool filter and the well-water filter under his house. He testified that the pool

itself looked clean. Any harm he claims to have suffered can be cured with money damages. Mr.

Clay testified that the cost to re-fill his pool is approximately $400 per re-fill. Messrs. Alan Jenkins

and Deborah Crowe did not take the stand at the hearing but stipulated that if called, they would

testify consistent with Paragraphs 47 and 48 of the Complaint, respectively. There, Mr. Jenkins

contends he was in the process of fencing his property for cattle and the construction activities at

the Property would somehow disrupt this “intended use.” Compl. ¶ 47. Ms. Crowe claims that

“dust and other particulates have been blown onto [her] property,” but does not allege any harm

resulting from the dust. Compl. ¶ 48. Ms. Beam did not appear at the hearing to offer any evidence

of harm she claims.

In their Motion, Plaintiffs argue these harms are irreparable because they relate to land, but

the authority they rely on is not so broad. Mot. at 8 (citing Unified Gov’t of Athens-Clarke Cnty.

v. Stiles Apartments, Inc., 290 Ga. 740, 741 (2012); Focus Entm’t Int’l, Inc. v. Partridge Green,

Inc., 253 Ga. App. 121, 127 (2001)). Both Unified Gov’t of Athens-Clark County and Focus

Entertainment International, Inc. involved threats to ownership interests in land. Unified Gov’t of

Athens-Clarke Cnty., 290 Ga. at 740 (explaining plaintiff sought “injunctive relief against

[government defendant’s] efforts to assert ownership or control over the parking area”); Focus

Ent. Int’l, Inc., 253 Ga. App. at 127 (holding “irreparable harm automatically occurs as a matter

of law arising from a violation of a covenant running with the land”). Of course, Plaintiffs do not

(and cannot) assert any such threatened harm to their ownership interests in land. Plaintiffs’ only

harms, including prospective, entirely speculative future harms, relate to alleged dust and dirt

purportedly leaving the Property.

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 The mere fact that property is involved does not mean harm or damage thereto is

necessarily irreparable for purposes of equitable relief. See Sexton v. Sewell, 351 Ga. App. 273,

280 (2019) (“Thus, we reject the assertion that, simply because real property is generally

considered to be ‘unique,’ the Sellers in this case were automatically entitled to specific

performance of the Contract.”). For example, in Price v. Empire Land Company, the Supreme

Court of Georgia affirmed a trial court’s denial of a preliminary injunction in part based on the

plaintiff’s failure to prove “damage would be irreparable,” despite evidence that defendants’

grading caused water to flow onto the plaintiff’s land which further caused “rain water carrying

large amounts of earth and mud [to be] deposited on the plaintiff’s land.” 218 Ga. 80, 81, 85

(1962). Additionally, courts in other jurisdictions have found remarkably similar allegations of

dust in filters caused by construction activities are not irreparable harm sufficient to justify

injunctive relief. See, e.g., Alisu Invs., Ltd. v. TriMas Corp., 2019 WL 856396, at *15 (C.D. Cal.

Jan. 16, 2019) (finding “dust clog[ging] the coils and filters” and “intense burning in [moving

party’s] eye for two days after picking up shards of white plastic sheeting which were coated in

dust from the [Property]” were not irreparable harm sufficient to support preliminary injunction).

“While the [Plaintiffs] appear to be upset . . . , they have simply failed to offer any reason why the

alleged harms stated cannot be redressed by monetary damages.” Id. (emphasis in original).

B. The Harms Plaintiffs Claim Would Not Be Redressed By The Injunction

They Requested.

Plaintiffs failed to demonstrate their claimed harms would be remedied by the preliminary

injunction they seek. Plaintiffs ask the Court to enter an injunction “enjoining Defendants JDA

and Plateau from the continuation of the Rivian Land Disturbance until such time as compliance

with the [Local Ordinances] is established.” See Compl., Prayer for Relief ¶ 4. However, they

offered no evidence demonstrating that (1) any discoloration in Mr. Clay’s icemaker, well-filter or

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pool-filter was caused by construction activities at the Property, (2) compliance with the Local

Ordinances would in any way change the environmental and erosion efforts currently in place at

the Property, or (3) an injunction would improve environmental and erosion conditions on the

Property. To the contrary, the State and JDA demonstrated that (1) it is improbable to a reasonable

scientific certainty that erosion at the Property is impacting Mr. Clay’s icemaker, well, or pool; (2)

the State and federal permits currently in force at the Property require the same exact

environmental and erosion measures as the Local Ordinances Plaintiffs seek to apply; (3) the State

and JDA implemented additional water trucks and enhanced other best management practices to

minimize dust and keep sediment on site; and (4) if a preliminary injunction is entered, the Property

will be left in a condition posing greater risk to Plaintiffs than if work is completed.

The State and JDA’s hydrogeological expert, Joe Ivanowski, testified that there is no

conceivable way silt could travel from the Property through the groundwater into Mr. Clay’s wells

in the time since construction started. Mr. Ivanowski explained groundwater moves roughly a

fraction of a foot per day. Additionally, any erosion at the Property that reached the surface water

could not have made it uphill to Mr. Clay’s well nearly 1,375 feet away.

Mr. Ralph Forbes testified based on his nearly 30-years of experience managing

construction projects that complying with Local Ordinances does not correlate with any different

environmental controls or more expansive regulatory oversight or supervision. As he explained,

the ongoing construction activities are subject to numerous permits issued by State and federal

agencies. See Defs.’ Ex. 9 (State’s Notice of Intent to commence construction pursuant to State’s

National Pollutant Discharge Elimination System (“NPDES”) General Permit for Construction

13
Activities)4; Stip. Ex. 10 (State’s NPDES General Permit for Construction Activities for Common

Developments); Defs. Ex. 7 (Environmental Protection Division (“EPD”) 50 Acre Letter); Ex. 8

(EPD buffer variance approval); Ex. 11 (EPD’s Water Quality Certification pursuant to Section

401 of the Clean Water Act); Exs. 23-24 (cultural resources approval letters from Georgia Historic

Preservation Division). Mr. Forbes also testified that, in his experience, the involvement of local

officials in addition to EPD regulators on other projects has not led to faster response times or

different results when there are suspected violations of environmental permits. Mr. Forbes

explained the best way to stabilize the Property is not to stop construction, but to continue

implementing best management practices pursuant to the Erosion, Sedimentation, and Pollution

Control Plan (Defs. Ex. 6).5 Stopping work now would prevent construction crews from taking

steps they would ordinarily implement to prepare the Property for potential run-off caused by

future rain.

Plaintiffs’ closing argument made clear that Plaintiffs are not actually interested in

environmental harms. Plaintiffs are more concerned with how the Property looks than actual

environmental harm. Mr. Christy argued 200 acres disturbed now is better than 2,000 acres

4
In their Motion, Plaintiffs contended construction at the Property “is subject to the provisions of
the Georgia Erosion and Sedimentation Act, O.C.G.A. 12-1-7 et. seq.” Mot. at 15. Defendants do
not dispute that as a general proposition. Plaintiffs then selectively quote from the Act to suggest
the project requires “a permit from a local issuing authority…” Id. (quoting O.C.G.A. § 12-7-
7(a)). But immediately following the language Plaintiffs quoted, the Act alternatively requires
“providing notice of intent to [EPD] …,” which is precisely what occurred here. O.C.G.A. § 12-
7-7(a); Defs. Ex. 9. Plaintiffs also ignore the fact that GESA is being enforced at the project by
EPD.
5
On November 11, rain caused a breach of existing erosion control measures in place at the
Property. As with the October 13 rain event, the JDA and Plateau self-reported the issues to the
EPD consistent with applicable permits (e.g., the State’s NPDES General Permit for Construction
Activities and for Common Development (Stip. Ex. 10)) and Georgia law. EPD officials inspected
the Property on Monday, November 14 and are addressing any issues with the on-site team.

14
disturbed at completion of the project.6 Plaintiffs simply and obviously want the Rivian Project

stopped, even if that means an injunction which puts the environment at risk.

In sum, Plaintiffs failed to produce evidence demonstrating their harms were either

irreparable or caused by construction activities at the Property. To the contrary, Defendants

presented scientific evidence that it is not possible for Plaintiffs’ groundwater to have been

contaminated by the construction activities at the Property. Moreover, Defendants’ evidence

showed that, in fact, the injunction Plaintiffs request (1) would not remedy the harms Plaintiffs

have alleged and (2) may actually exacerbate them. Accordingly, Plaintiffs have not shown they

are likely to suffer irreparable harm if a preliminary injunction is not entered.

III. Plaintiffs Failed To Show Their Harm Outweighs The Likely Harm To The State
And JDA.

Even if Plaintiffs’ harms were irreparable (they are not), they failed to show the likely

harms they would suffer absent a preliminary injunction would outweigh the likely harm to the

State and JDA. At most, Plaintiffs demonstrated Mr. Clay will be required to incur $400 in

damages to re-fill his pool more frequently than he otherwise would. By comparison, Defendants

offered evidence demonstrating a preliminary injunction would substantially jeopardize the Rivian

Project on the whole and cause significant monetary harm to the State.

Mr. Capezzuto explained how an injunction in and of itself threatens the Rivian Project in

its entirety. Pursuant to the Economic Development Agreement (“EDA”) between the State, JDA,

and Rivian Automotive, LLC, if an injunction is in place on May 1, 2023, Rivian has the option to

walk away from the deal and all the resulting benefits to the State and local economies will be

wasted. Stip. Ex. 1 at § 5.2(a)(xii). In that case, Rivian would not invest $5 billion into the

6
Mr. Capezzuto and Mr. Forbes testified that far less than 2,000 acres will actually be graded.

15
economy, 7,500 jobs paying an average of $56,000 per year would not come to Georgia, training

programs would not be implemented, and the benefits of Rivian’s historic investment would be

lost. Nor would the development create the additional benefits beyond the Rivian Project in excess

of projections, as was the case in the Kia development in West Point, Georgia. As Mr. Capezzuto

and Mr. Forbes testified, these types of large-scale economic development investments are

extraordinarily competitive and securing them is exceedingly difficult. Losing the Rivian Project

would undoubtedly cause the State and JDA irreparable harm.

Additionally, Mr. Capezzuto testified that the State had already incurred $3.8 million in

costs for the grading activities at the Property in October and expected to incur an additional $4-

$5 million per month in costs for grading in November through February, all pursuant to a $38

million grading contract. Mr. Forbes explained the cost for Plateau Excavation, Inc. (“Plateau”)

to de-mobilize and re-mobilize in the event of an injunction halting ongoing construction work

would likely amount to $1.7 million to stop construction and an additional $1.7 million to restart.

See Defs. Ex. 4. Further, if an injunction were issued, the State’s environmental permits would

require the site to be grassed where grading/land disturbance has occurred, an additional $300,000

in approximate cost to the State. These millions of dollars of costs Defendants would incur if an

injunction were entered far outweigh the harms demonstrated by Plaintiffs.

Plaintiffs attempted to argue that the Rivian Project is unlikely to proceed regardless of this

Court’s ruling. They claim another court’s ruling on a separate bond validation petition supports

their position. It does not. First, the State and JDA have already appealed the bond validation

ruling. Second, while the bond validation is currently a condition precedent to closing, Plaintiffs

misrepresented that the bonds are the only means of financing the Rivian Project. To the contrary,

as Mr. Capezzuto explained, the bonds are not offering public financing for the Rivian Project in

16
the traditional sense. They do not offer Rivian funding for construction. Rather, the bonds serve

as a mechanism to offset ad valorem property taxes that Rivian would otherwise owe local

governments. Those tax incentives would not be realized until such time as Rivian actually

occupies the manufacturing facilities after construction is completed. Finally, there is no reason

for the Court to consider the bond validation issue in this Motion. All the financial harms to the

State discussed herein are separate and apart from Plaintiffs’ speculation about the ultimate result

and impact of the bond validation order. Put another way, the State, JDA, and Rivian remain

committed to the Rivian Project despite the order. Since that order was entered, the State has

continued to fund Plateau’s construction activities at the Property consistent with its contractual

obligations, the State and JDA continue to pursue and obtain necessary environmental permits,

and the State is moving forward with its purchase of $20 million worth of wetland credits. Thus,

contrary to Plaintiffs’ arguments, while the State and JDA believe that the bond validation order

is erroneous and that the tax incentives are an important incentive for the Rivian Project, the bond

validation order does not doom the project, and the State, JDA, and Rivian remain fully committed

to its completion and success.7

In sum, an injunction preventing the State and JDA from meeting their construction

deadlines, not the bond validation ruling, represents the greatest threat to the Rivian Project and

the greatest irreparable harm to any parties in this case, as well as the general public.

7
The Motion should also be denied because the evidence establishes the requested injunctive
relief would adversely impact the public interest. See, e.g., Mark Smith Const. Co. v. Fulton Cnty.,
248 Ga. 694, 695 (1982) (affirming denial of temporary restraining order because a delay in the
construction of a fire station would impose hardship on the general public); R.D. Brown
Contractors, Inc. v. Board of Ed. Of Columbia Cnty., 280 Ga. 210, 211 (2006) (affirming the denial
of an interlocutory injunction on the grounds that delaying construction of a school “would impose
‘enormous consequences’ on the citizens of the county”).

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IV. Plaintiffs’ Requested Remedy Is Extraordinary And Would Disrupt The Status Quo

“An interlocutory injunction is an extraordinary remedy, and the power to grant it must be

‘prudently and cautiously exercised.’” Bishop v. Patton, 288 Ga. 600, 604 (2011), disapproved of

on other grounds by SRB Inv. Servs., LLLP v. Branch Banking & Tr. Co., 289 Ga. 1 (2011).

Preliminary injunctive relief must be reserved for only “clear and urgent cases.” O.C.G.A. § 9-5-

8. The “sole purpose” of a preliminary injunction is to maintain the status quo. Hampton Island

Founders, LLC v. Liberty Cap., LLC, 283 Ga. 289, 293 (2008). Critically, “[t]he status quo is not

defined by the parties’ existing legal rights; it is defined by the reality of the existing status and

relationship between the parties, regardless of whether the existing status and relationships may

ultimately be found to be in accord or not in accord with the parties’ legal rights.” Id. Plaintiffs

failed to demonstrate their case is clear and urgent or that the status quo is consistent with their

requested injunction.

Plaintiffs suggested the Property’s former status as undisturbed pasture is somehow the

status quo to be protected by the Court. That is not the case. The status quo is defined by the

“existing status and relationship between the parties” at the time the case is filed. Id. Thus, for

example, where a landlord has a clear and unambiguous right to relocate a tenant to another

location but has not yet exercised that right at the time the case is commenced, an injunction

requiring the tenant to move disrupts the status quo. Hipster, Inc. v. Augusta Mall P’ship, 291 Ga.

App. 273, 274–75 (2008) (reversing preliminary injunction because it “did not preserve the status

quo, as it required [a tenant] to vacate its current space and relocate to a smaller space in the mall”

pursuant to terms of a lease). Here, Plaintiffs and their counsel had knowledge no later than May

2022 that the State intended to hold title to the Property, Defendants took the position that the

Property was not subject to the Local Ordinances, and construction would begin in the summer.

18
See State’s Response to the Motion at 11-12. Those are all the facts necessary for their claims.8

Nevertheless, they waited to seek a preliminary injunction until such time as construction began

at the Property and Defendants incurred substantial expense in furtherance thereof. As a result of

their delay, Plaintiffs allowed the current status quo to develop and committed laches. Black v.

Barnes, 215 Ga. 827, 829 (1960).

On the evidentiary record before the Court, the status quo is ongoing construction at the

Property without application of the Local Ordinances. As such, it would be reversible error for

the Court to enter a preliminary injunction disrupting that status quo and rewarding Plaintiffs’

laches. Id.; Yakob v. Kidist Mariam Ethiopian Orthodox Tewahedo Church, Inc., 359 Ga. App.

13, 22 (2021).

CONCLUSION

For the reasons discussed above, the State of Georgia and Joint Development Authority of

Jasper County, Morgan County, Newton County, and Walton County respectfully request that the

Court deny Plaintiffs’ Motion for Temporary Restraining Order and/or Preliminary Injunction.

This 16th day of November, 2022.

/s/ Charles E. Peeler /s/ Kathryn M. Zickert

Harold D. Melton, Georgia Bar No. 501570 Kathryn M. Zickert, Georgia Bar No. 785040
Charles E. Peeler, Georgia Bar No. 570399 Kirk R. Fjelstul, Georgia Bar No. 260015
Charles F. Palmer, Georgia Bar No. 559840 SMITH, GAMBRELL & RUSSEL, LLP
Byron Kirkpatrick, Georgia Bar No. 396394 1105 West Peachtree Street, NE
Elizabeth P. Waldbeser, Georgia Bar No. 430797 Suite 1000
TROUTMAN PEPPER Atlanta, Georgia 30309
HAMILTON SANDERS, LLP (404) 815-3500
600 Peachtree Street NE, Suite 3000 kzickert@sgrlaw.com
kfjelstul@sgrlaw.com

8
If Plaintiffs sought relief for nuisance or trespass, perhaps they would have needed to wait for
harm caused by construction activities. But those are not the claims Plaintiffs alleged. Rather,
they seek purely legal determinations regarding the obligations of local officials and the validity
of the State’s authority.

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Atlanta, GA 30308
(404) 885-3000 Counsel for Defendant Joint Development
harold.melton@troutman.com Authority of Jasper County, Morgan
charles.peeler@troutman.com County, Newton County and Walton County
charles.palmer@troutman.com
byron.kirkpatrick@troutman.com
elizabeth.waldbeser@troutman.com

Counsel for Intervenor-Defendant State of

Georgia

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 CERTIFICATE OF SERVICE

I certify that I have on this day served Defendants’ Joint Post-Hearing Brief in Opposition

to Plaintiffs’ Motion for Temporary Restraining Order and/or Preliminary Injunction via eService

using the PeachCourt system.

This 16th day of November, 2022.

/s/ Charles E. Peeler

Charles E. Peeler
Georgia Bar No. 570399

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