Descendants of Judge John Heard have suffered a setback in their attempt to regain control of their family’s historic cemetery.

According to a copy of the decision forwarded to Reporter Newspapers, Fulton County Superior Judge Kimberly Adams on Oct. 8 ruled that there are “genuine issues of material fact” that must be resolved before the descendants can regain control of the property.

On Oct. 21, Adams granted a motion for a Certificate of Immediate Review that will allow the Georgia Court of Appeals to review her ruling.

Wright Mitchell, attorney for the descendants, said he will petition the Court of Appeals.

The order stems from a May court hearing on the case involving plaintiff Christopher Mills, who is the current owner of the property. Mills sued Sandy Springs in 2012 after city officials denied his application to build a house on the property. Officials denied the application because of city rules preventing development on land containing graves. Mills has said in various court filings that he wants to build his home on an undeveloped portion of the property that doesn’t contain any burials.

Mills and his attorney had no comment when Reporter Newspapers requested one.

One of Heard’s descendants, Mary Ann Elsner, sold her rights to the property in 2007 to Mills’ in-laws, Henry and Wanda Cline. The Clines bought the property with the intention of preserving it, but those plans never materialized. They eventually sold the property to Mills for $1.

After Mills filed the lawsuit, Heard’s descendants intervened and asked the judge to give the property back to them. Judge Heard is one of the community’s original founders and a Confederate Veteran.

Preston Heard, a descendant, emailed other family members with news about the judge’s order.

“The order is based on what we believe to be an incorrect legal premise – that the heirs could somehow abandon just a portion of the property,” Heard wrote. “In reality, the current legal authority is simply not clear on this issue, which is why it warrants review by the Court of Appeals. If the appeals court agrees to take up the issue, we will obtain the legal clarity needed to move forward. If it turns out that, as we argue, the heirs could not, and have not abandoned a portion of the cemetery property, then Judge Adams’ order cannot stand.”