Appeal contends zoning map adoption violated Zoning Procedures Law

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CLICK TO DOWNLOAD PDF OF APPEAL

BROOKHAVEN, GA, Feb. 18 – A group of Ashford Park homeowners appealing a decision to lift a Stop Work Order (SWO) on a new home being constructed at 2802 Ashford Road have potentially uncovered serious issues with the way city officials adopted Brookhaven’s Zoning Map, and question the integrity of the map itself.

On November 13, 2013, a Stop Work Order was issued to halt construction of a new home at 2802 Ashford Road by Community Development Director, Susan Canon. The basis for the SWO was the alleged failure of the property to comply with setback averaging requirements and a non-compliant retaining wall – both issues violate the zoning ordinance adopted by the city.

At the time the SWO was issued, Canon stated, “We made a mistake, we issued it [the permit] in error.”

But then, on December 5, 2013, Canon lifted the SWO on the property citing 2808 Ashford Rd. is zoned R-85 based on Brookhaven’s zoning map.

There’s just one problem, according to DeKalb County, the property at 2808 Ashford Road is and always has been zoned R-100, not R-85.

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CLICK TO ENLARGE

There are numerous discrepancies between the zoning map adopted by Brookhaven and existing DeKalb County zoning. Neighboring property owners have discovered within the 12 acres surrounding 2802 Ashford Road, the city of Brookhaven’s “official” zoning map is incorrect 59% of the time, labeling 13 out of 22 properties with incorrect zoning designations.

If valid adoption of the official Brookhaven Zoning Map did not take place — as the Appeal argues — then these properties have been illegally rezoned.

According to an affidavit from Lynn Santure, (the DeKalb County GIS Department employee who printed the map) on January 14, 2013, a Brookhaven zoning map was requested from the DeKalb County GIS Department by Brookhaven city planner, Howard Koontz. DeKalb County complied by providing a map pulled from the Tax Digest which contains zoning designations.

CLICK IMAGE TO DOWNLOAD AFFIDAVIT

CLICK IMAGE TO DOWNLOAD AFFIDAVIT

At the time, the Tax Digest was the only database which could be used to create the map, and since this was a tax map, not a zoning map, the map was not certified and included the following disclaimer: DeKalb County provides GIS maps and data sets as a public information resource. Every reasonable effort has been made to ensure the accuracy of maps and data. However, these maps and other information are only as accurate as the source of such maps and other information. Further, the maps and other information provided are updated only periodically and therefore may not reflect the most current information.

Furthermore, the affidavit states, “I have been told that the map I printed out was used as the ‘official zoning map of DeKalb County’ by the City of Brookhaven. At no time did I represent to Mr. Koontz or anyone that the map I printed on January 14, 2013, was the official zoning map for DeKalb County.” Santure goes on to state, “Had Mr. Koontz identified himself as an official with the City of Brookhaven desirous of receiving official zoning maps of DeKalb County, I would have advised him that I could not provide ‘official’ maps and that I cannot certify maps in any capacity as an ‘official’ for DeKalb County.”

In their appeal, the neighboring property owners also point out the city neither provided the zoning map for public review prior to it’s adoption nor was the map present at the meeting where it was adopted. Both issues violate Georgia Zoning Procedures Law which establishes as state law minimum procedures governing the exercise of zoning power. The purpose of these minimum procedures is to assure that due process and transparency is afforded to the general public when local governments regulate the uses of property through the exercise of the zoning power. (O.C.G.A § 36-66-2 (a))

The question then becomes, if the Brookhaven zoning map was not adopted in compliance with state law, what becomes of the rezonings, building permits and variance appeals that have been approved based on the improperly approved zoning map? Are these approvals valid or will they need to be invalidated and re-confirmed when a zoning map is properly adopted by the city?

Due to discrepancies between historical DeKalb County maps and Brookhaven’s Zoning map, the city resolved to do a full audit of all the parcels included in Brookhaven’s admittedly flawed zoning map.

Friday, the city selected Pond & Company to lead the zoning map audit project. The firm will assess all existing data and review all DeKalb County data associated with zoning and variance cases within Brookhaven’s boundaries.

Brookhaven’s Zoning Board of Appeals will meet Wednesday afternoon, first for a Work Session at 5:30 pm and at 7:00 pm for a Regular ZBA Meeting at Brookhaven’s Municipal Court location, 2 Corporate Square, Suite 125, Brookhaven.

The appeal is on the Wednesday, February, 19 ZBA agenda as: ZBA14-04: Dunlavy Law Group, LLC – Appeal an Administrative Decision to Remove Stop Work Order. Property Location: 2802 Ashford Road

 

 

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