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

 

 

13 Responses to Appeal contends zoning map adoption violated Zoning Procedures Law

  1. Please leave Brookhaven alone! The city does not admit to mistakes that cost the city money. As usual, it will take a court case for this to be corrected. A court case is preferred because then everyone can hide behind the status quo "we cannot comment on this because of pending litigation." work around.

  2. enuff govt already

    I figured we used the tax digest to come up with the map but let me get this straight. We used the smart city of Dunwoody's arborist to compile our official city zoning map? How many permits were issued based on this map? Did Dunwoody compile their map in the same manner? Since this error was with a contractor who will bear the cost the city or the contractor?

    • The city manager independently decided to not allow the contractor to have the authority to manage its own employees, hence the community development director was hired as the City's director to be responsible for oversight of the day to day operation of the department including but not limited to transferring files and creating a manifest of all files and records from DeKalb County, standard operating procedures for reviews and approval of all permits, and so on and so on and so on.

      • Am I understanding this correctly? It sounds like the City awarded a consulting firm a contract, then removed the administrative component of the contract which basically made the consultant a staffing agency, then created the community development director position, hired someone who was suppose to be qualified to manage the department who now wants to blame the employees provided by the consultant for following procedures and policies that were set forth by City managers. Wow, being in unincorporated DeKalb was not so bad after all.

        • Patiently Waiting

          I understand what you're feeling "hornswoggled" but, you can't un-ring a bell. Change is good. In fact the only constant in life is change and its time for a change in leadership in Brookhaven. Lets all show up on election day and see how things shake out (of office).

  3. I saw all of this damning information in the ZBA agenda scheduled for the 19th and I was flabbergasted. Now I see it again as a standalone story but no acknowledgement or response from the city or our elected officials. It appears that our city management sought to cover their obvious mistakes by playing on citizen ignorance of city governance and just crossing their collective administrative and elected fingers hoping that no one would know the better. Alas, there are a lot of citizens that know what is going on, especially the ones that have financial liabilities based on their selfish cover-up of the facts.

    If Mayor Davis has nothing to volunteer in response to this article then I have some comments for him to respond to:

    First, I am disappointed that our city council and mayor were not knowledgeable enough to understand proper procedure for zoning map approval and understand the importance of the document they were approving. Aren’t they members of the Georgia Municipal Association? Shouldn’t the mayor and city council have been aware of the procedure for zoning map approval the city manager should have followed?

    Second, it appears that our knowledgeable city manager really dropped the ball on this one. If she is the expert city manager that we have been lead to believe she was by Mayor Davis, I would have thought she would have planned in advance for proper documentation or delayed formal approval of Brookhaven’s zoning map until legitimate documentation was in place for city council approval. Did that happen?

    Third, when the city manager found out that she had not followed protocol in obtaining and submitting for approval an official Brookhaven zoning map based on an approved DeKalb map it looks like she would have been honest and admitted her mistake. Forgiving an honest mistake with swift correction is much easier than financially reimbursing businesses and individuals devastated by the negligence of new city government. So do we know just how much we are on the hook for this mistake? For the record, it appears the city manager knew exactly what she was doing based in the affidavit by Ms. Santure. You don’t wait until the last minute to request such important documents for approval by a new city.

    Fourth, at some point our community development manager should have realized we don’t have an official zoning map. Is she culpable for not informing her superiors of her findings in a timely manner?

    Fifth, severe mistakes have been made that have serious financial ramifications. Whose heads should roll because of their hiding mistakes made with fundamental city management decisions? The development manager? The city manager? The mayor who has been so supportive of the city manager? The city council members?

    Sixth, will the citizens and businesses that can prove harm due to these incompetent actions be reimbursed? If so, just who will be paying?

    Mayor Davis, what say you?

    My money says the citizens and harmed businesses will be screwed and anyone associated with Brookhaven government will survive unscathed.

  4. Rules, we don't need no stinkin' rules!

    We are IN CHARGE HERE!

    When this issue first floated to the surface, I had to ask myself just what effect it might eventually have on existing and new mortgages, as the 'legal description of the property' ain't quite legal.

  5. I don't think blame goes to the mayor and city council. This is a staff problem not the elected officials. BUT, if they know the map issue is a coverup they should say so. Not saying so makes them guilty as well. I'm pretty sure mayor Davis has said he thinks it's a mess that needs cleaning up ASAP. They are trying to but this is another fail by community development and another mess up by Riley. City manager should have know better that proper procedure was not followed. A real mess up for sure. Better to admit it, repeal ordinance, adopt dekalbs map and when we have finished the taxpayer financed audit readopt a map. Big problem is how it impacts previous rezoning and variances and permits. Whew. Glad all I have to worry about is running my landscape business. Running a city appears to be a real big messy job.

    • Miller, the boil festers for a long time before it is ready to be lanced. Once lanced, the wound needs to be immediately cleaned and dressed with an antibiotic and bandage to promote healing.

      Our zoning map issue has festered for quite some time with the mayor, city employees and contract employees knowing that they had a problem on their hands since the recognition of our non-zoning map. Keep in mind that it was a group of citizens that fought to bring this zoning map problem to the attention of the city to the point that they had no choice but to admit fault. Now that the problem has been lanced no antibiotic has been applied to the fester. You do not see anyone from the city stepping forth to acknowledge their mistakes. Nor do you see our city council taking action to replace the individuals responsible for this debacle. Apparently we give them pay raises and promotions.

      Does this make you wonder what else they have mismanaged and choose to keep from us? Running a city is not for the inexperienced.

  6. According to the article, the map Brookhaven used was the only map Dekalb could provide and this was the one that the Dekalb affidavit maker provided. What other map could Brookhaven have adopted? If Dekalb cant provide one what map does that mean Dekalb doesn't have an official zoning map? Before I gleefully jump all over the city I will have to hear the other side to the story on this appeal.

  7. Unfortunately the city rushed to adopt their own map in the haste to cut ties with Dekalb. The city has two years to adopt their own map per the charter so rushing was not necessary. Again, city staffers should have known this given their millions if years of "experience" in these matters. They once again made our elected officials look bad. Shame on them.

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