The city of Sandy Springs, Judge John Heard’s descendants, and a local attorney hope to appear before a Fulton County judge to determine the fate of an historic cemetery. The attorney wants to build a home on part of the land.

The city of Sandy Springs, descendants of a Confederate veteran and a local attorney who owns the veteran’s grave will soon appear before a Fulton County Superior judge to determine the fate of an historic cemetery.

Both sides are asking for a hearing, but a date has not been set for each to present their case.

The attorney who owns the property, Christopher Mills, on April 1 filed a response to a joint motion for summary judgment filed by the city of Sandy Springs and 28 descendants of Judge John Heard. The motion for summary judgment asked that Heard’s family cemetery be returned to his heirs.

The cemetery is located at 0 Heards Drive in Sandy Springs, a modest 1-acre parcel surrounded by million-dollar homes. More than a century before the land was developed, Heard, a Confederate veteran, dedicated it as a cemetery for his heirs.

The cemetery was acquired in 2006 after it was sold at auction to pay off back taxes. There’s a problem, though. Cemeteries are tax-exempt in Georgia. The cemetery was apparently placed on the auction list by mistake.

That mistake lies at the heart of the current legal controversy, a lawsuit that was filed because the city of Sandy Springs denied Mills’ application for a building permit. Mills wants to build a house on a portion of the land that does not contain graves, according to an archaeological survey Mills obtained.

Mills, who purchased the property from his in-laws after they bought it by paying off back taxes on the parcel, said the 28 descendants had a chance to pay the back taxes in 2007 and didn’t.

“Mills, through Sandy Springs’ responses to his discovery requests, expects to present evidence to demonstrate that Sandy Springs, its counsel of record, and certain Heards had notice of the Cline Transaction before the statutory right expired and did nothing to satisfy the taxes in arrears,” Mills’ April 1 response says. “Further, it is rather dubious that all 28 Heards claim to have no knowledge of the Cline Deed in 2007, and are now systematically mobilized to challenge Mills’ ownership of the property four years later.”

Mills’ claim appears to contradict emails sent to his in-laws in 2007 by the attorney representing them at the time.

The emails obtained by Reporter Newspapers show that the attorney for Henry and Wanda Cline, Mills’ in-laws, questioned whether it was wise for the Clines to pay Heard-descendant Mary Ann Elsner $10,000 to give up her rights to the property. The attorney’s email suggests the Clines and the neighbors were unsure if there were any other Heard heirs. The 28 descendants came forward after the lawsuit received extensive media coverage.

City Attorney Wendell Willard said the claim that the city had knowledge of the Cline’s purchase of the property has no bearing on the city’s actions in this case.

“The issue does not, in my opinion, apply to the city as a defendant, as we are not claiming any interest in the property,” Willard said. “Our involvement addresses the ability to obtain a construction permit on the property which we did not issue as a result of the dedication of the property as a cemetery. We learned of the conveyance by tax deed when we received a title report.”

Wright Mitchell, attorney for the descendants, said the claim isn’t relevant to the descendants’ case.

“While this may be relevant to the title issue, it has no bearing on the ultimate issue regarding whether the cemetery has been perpetually dedicated for burial purposes,” Mitchell said. “At the end of the day, that is what matters most in this case.”

Mills’ attorney, Christopher Porterfield, did not provide a comment by the Sandy Springs Reporter’s press deadline.