Brookhaven, GA, March 25 – Brookhaven Citizen, Thomas Porter, AIA, LEED® AP, provides the following Letter to the Editor:
To the Editor,
With alarming frequency, Brookhaven’s Community Development department has been subverting the city ordinances by providing misleading guidance to the Zoning Board of Appeals (ZBA) in order to secure approval of variances that do not meet the ordinances, or, the standards for ZBA ruling.
The Community Development department has an intrinsic responsibility to enforce the ordinances of Brookhaven as adopted by the City Council and Mayor. While some within Community Development may see loftier goals for themselves, their first and foremost duty must be code enforcement. The ZBA is also directed to rule by the criteria established in those ordinances and rely in significant part by the Staff Recommendations provided by Community Development.
The correct process in most cities is that the Community Development department would analyze any submitted plans or documents for code compliance, and, if it does not comply, deny approval. Thereafter it is incumbent upon the applicant to decide whether to apply to the Zoning Board of Appeals (ZBA) for a variance, and provide their own arguments to the ZBA.
That process is convoluted in Brookhaven. In the majority of the ZBA variances, Community Development doesn’t deny anything; rather, they make no ruling at all which technically constitutes a denial, and then encourages the applicant to seek a variance through the ZBA. Then, Staff Recommendations provide the arguments for the ZBA to rule counter to the ordinances and thus the decisions rest solely upon the heads of the ZBA instead of the city department. It is horribly wrong for a city department to actively seek to thwart the ordinances; it would be akin to a police department deciding which laws it felt like enforcing and then providing defense for scofflaws in court (hypothetical – we have a great Police Department in Brookhaven).
Every Staff Recommendation to the ZBA repeats each of the 5 criteria then portends to answer those criteria. By ordinance, ALL 5 criteria must be met in order for the ZBA to rule. Many recent Staff Recommendations either do not answer accurately, or, provide unrelated responses. This is unfair to everyone, especially the ZBA who may be lulled into the belief that they are ruling on an issue that meets the ordinance criteria.
The recent variance application by Walgreens et al is a great example (ZBA 14-06): the very first criteria necessary for the ZBA to rule upon any application requires that there be “exceptional” characteristics of size, shape or topography in the property such that it creates a hardship for the applicant. While the Staff Recommendation makes a rambling response to this, nothing in their response is an answer to this criteria; instead Staff obfuscates with other issues. In this case, the property is an assemblage of 4 commercial lots, therefore it cannot be deemed small in size; it is slightly trapezoidal in shape but that is not in the least bit even unusual, let alone exceptional, and, for the most part the property is almost flat. Yet Community Development recommends approval of 6 of the variance requests despite the fact that they shouldn’t be ruled upon at all. This application has been deferred until the May ZBA hearing, at that time we will see if the ZBA follows the ruse of Community Development.
This is by definition “subversive” behavior by Community Development. It is reckless and has already embroiled the City in a number of legal challenges. It represents the personal agenda of the leadership of Community Development who doesn’t even live in Brookhaven! In utter irony, our physical environment is manipulated by a person who doesn’t have to live with the consequences of their actions.
It is well past the time for the “we’re a new city” excuses to hold validity. If Community Development dislikes the ordinances then they should work through the prescribed methods to see if there is interest in changing them, until then, they should enforce them fairly and evenly. This has been brought to the attention of the Mayor & City Council, I hope that they will rectify the problems and provide a truly transparent and fair Community Development department in Brookhaven. I also urge everyone to demand the same of their city leaders.
Thomas Porter, AIA, LEED® AP